s.365 - General protections

Application to deal with contraventions involving dismissal

• [1] On 24 February 2025, Mr. Alexandros Panagiotidis made an application to the Fair Work Commission under s 365 of the Fair Work Act 2009 (Cth) (the Act) alleging he was dismissed from his employment with King Marble Australia Pty Ltd (KMA) in contravention of Part 3-1 of the Act.

• [2] In his application, Mr. Panagiotidis acknowledges the application was not made within 21 days as required by s 366(1) of the Act. The Commission has power to extend the time for making the application if the Commission is satisfied there are exceptional circumstances under s 366(2).

• [3] On 3 April 2025, I conducted a mention in this matter. Mr. Panagiotidis attended that mention by telephone. KMA or any representative for KMA did not appear at this mention. After the mention, I issued directions for the parties to file material on whether an extension of time should be granted and a notice of listing for a determinative conference on 2 May 2025.

• [4] Mr. Panagiotidis was due to file his material on Friday, 18 April 2025. No material was received by the Commission.

• [5] On 2 May 2025, a determinative conference was to be conducted to hear Mr. Panagiotidis' extension of time application. Mr. Panagiotidis did not appear. KMA was represented by Mr. Nicholas Mitsios of Sterling Partners as a paid agent. My Chambers attempted to contact Mr. Panagiotidis by telephone, but no response was received.

• [6] Subsequently that day, I issued a notice of listing for a further hearing on 14 May 2025 by email. The email noted that Mr. Panagiotidis' failure to comply with directions to file material and attend meant the application "may be at risk of being dismissed under s 587 of the Fair Work Act 2009". It further noted that the extension of time application would be heard if all parties were in attendance, otherwise, the proceeding would be conducted as a show cause hearing.

• [7] My Chambers attempted to contact Mr. Panagiotidis by telephone on 8 May 2025. No response was received and a voice message was sent advising the time and date of a further proceeding on 14 May 2025. He was also advised to check the email sent on 2 May 2025, noting that he had indicated on his application form that his preferred method of communication was by email.

• [8] On 14 May 2025, the Mr. Panagiotidis did not attend the Commission. Mr. Mitsios attended for KMA. The proceeding was conducted as a show cause hearing. KMA applied to have Mr. Panagiotidis' application dismissed under s 587. At the end of the hearing, I indicated I would dismiss Mr. Panagiotidis' application and would subsequently publish my reasons.

• [9] Section 587 of the Act provides as follows:

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

• [10] In Stewart v Enable Western Australia [2022] FWC 2238, Deputy President Binet provided a relevant analysis of the applicability of this section to this instance, as follows:

"[8] Sub-section 587(2) prohibits the FWC relying on section 587 to dismiss an application made pursuant to section 365 on the grounds that the application is frivolous, vexatious or with no reasonable prospects of success. It does not however prevent the FWC from relying on section 587 to dismiss an application made pursuant to section 365 per se.

[9] Nor does sub-section 587(2) limit the grounds on which the FWC may dismiss an application made pursuant to section 365 to only those circumstances in which the application is not made in accordance with the FW Act.

[10] For example, in McLeod v Kulgera Trading Company Pty Ltd [2014] FWC 2112, Vice President Catanzariti dismissed a section 365 application on his own initiative pursuant to section 587 on the grounds that the applicant had not responded to the FWC's repeated attempts to get in contact with her and had failed to participate in a teleconference.

[11] In doing so, the Vice President relied on a decision of Commissioner Gooley (as she was then) in Rebecca Tomas v Symbion Health [2011] FWA 5458 in which she stated:

'[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and (c) do not limit Fair Work Australia's power to dismiss matters for other reasons.

[58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter.'"

• [11] Mr. Panagiotidis has not responded to the Commission's repeated attempts to get in contact with him following his appearance at the mention on 3 April 2025. He did not comply with directions to file material in this matter and to attend two subsequent listings. I have decided to dismiss his application.

• [12] Applying the principle of a fair go all round to both employers and employees, I find Mr. Panagiotidis' failure to participate in the Commission's processes has required KMA to expend resources in responding to a claim that he does not appear to intend to follow through with. Further, taking into account fairness, justice, equity and good conscience, I find Mr. Panagiotidis has been given ample opportunity to make contact with the Commission but has failed to do so.

• [13] KMA has made an application under s.587(3)(b) seeking that the Application be dismissed. I find the Application should be dismissed. I order it to be dismissed.

• [14] An order[1] to this effect is issued in conjunction with the publication of this decision.

Mr. Nicholas Mitsios, of Sterling Partners, appeared for the Respondent.

No appearance was made by Mr. Alexandros Panagiotidis or any person on his behalf.

[1] PR787309.

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