Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application under s.365 - applicant failed to prosecute application - application dismissed pursuant to s.587 of the Act

• [1] On 31 January 2025 Mr Hassan Ali Shukrullahe (Applicant) applied to the Fair Work Commission (FWC) under s.365 of the Fair Work Act (Act) alleging he had been dismissed in breach of the general protections provisions. The matter was allocated to my Chambers on 25 February 2025.

• [2] On examining the application, I noticed that the Applicant was seeking payment of his invoices. On this basis, I formed a view that he may be a contractor as opposed to an employee. A conciliation conference was listed for 5 March 2025. The Applicant attended with a friend who assisted with translation into Afghani. The Respondent did not attend. At the conference I spoke to the Applicant at length about the work arrangements that he had with the Respondent and it appeared to me that he may well be a bona fide contractor.

• [3] However, the Applicant insisted that he was an employee. He nevertheless insisted that all he was seeking was payment of his invoices. At my suggestion, the Applicant went away to seek legal advice. I then wrote to him advising as follows:

As discussed at conference this morning, the Deputy President has formed the view that your complaint is best pursued in another jurisdiction.

From the information you provided - being that you were paid on invoice with no tax deducted and used an ABN to receive such payment - it is very likely that you are a contractor to Tomeh Painting and Rendering Pty Ltd rather than an employee. If this is the case, then your claim is for unpaid invoices and the Fair Work Commission has no jurisdiction to deal with such a claim.

If it is the case that your contracting arrangement is not a true contractor arrangement - because, for example, it is a sham contract - then it may be the case that you are an employee. If this is the case, it would appear that your claim is properly described as unpaid wages. The Fair Work Commission does not have jurisdiction to deal with underpayment of wages claims.

Given the above, it appears to the Deputy President that your claim is best made in a court of competent jurisdiction. Please feel free to share this email with your legal advisor."

• [4] The Applicant responded by thanking me for my assistance. On 11 March 2025 I caused my Chambers to send the Applicant the following email:

As outlined in previous correspondence the Deputy President has formed the view that your complaint is best pursued in another jurisdiction.

Deputy President O'Keeffe directs you to inform Chambers by no later than 4:00pm (AWST) Thursday 13 March 2025 if you wish to discontinue this matter."

• [5] The Applicant responded as follows later that day:

• [6] I then caused my Chambers to send the following email, again on 11 March 2025:

Chambers wishes to clarify if you wish to continue this application or discontinue this matter, as it is unclear from the below correspondence."

• [8] The following day I caused my Chambers to send the following email:

Deputy President O'Keeffe notes that you wish to proceed with your matter. As he has previously advised you, the Fair Work Commission is not the correct jurisdiction to pursue your claim against Tomeh Painting. At the conference held on 5th March you indicated that you would seek independent legal advice.

Can you please advise Chambers by no later than 4.00pm (AWST) on Friday 14th March whether you have now been given legal advice on your matter and if so, what that advice suggested you should do.

The parties are reminded that they must copy in the other party into any correspondence sent to Chambers, as communications between the Commission and parties must always be open and transparent."

• [9] The Applicant did not respond. As such, on 18 March 2025 my Chambers sent the following email:

Chambers notes you were due to provide a response to chambers by 4.00pm (AWST) on Friday 14th March whether you have now been given legal advice on your matter and if so, what that advice suggested you should do.

Could you please provide a response to the above question by no later than 4.00pm (AWST) Wednesday, 19 March 2025."

• [10] Later that day the Applicant responded as follows:

Tomorrow i (sic) will email you all details, thanks"

• [11] On 20 March 2025 the Applicant emailed Chambers as follows:

I hope you're doing well. I spoke with my lawyer, and he advised me to stay in touch with the Fair Work Commission. We may need to take another step.

Also, could you please let me know how you were connected with Ali Reza Nazari? I would really appreciate it."

• [12] My Chambers sent the following response later that day:

"Deputy President O'Keeffe notes your most recent email. He advises as follows:

1. With respect to how the Commission was connected with Ali Reza Nazari, Mr Nazari is the Respondent in this matter. He has corresponded with the Commission with respect to the case. As such, the Commission has his email address. Consistent with Commission protocol, any correspondence sent to one party must be sent to all parties. For this reason, Mr Nazari receives the same emails from the Commission as you do.

1. The Commission does not simply leave matters open waiting for applicants to do things. As such, the suggestion from your lawyer is not acceptable. Rather, you are directed to provide written submissions and evidence to Chambers by no later than 4.00pm (AWST) Thursday 27th March outlining why you were an employee of Mr Ali Reza Nazari and / or Tomeh Painting and Rendering Pty Ltd, rather than a contractor. The Respondent will then be given an opportunity to respond to these submissions. If the Deputy President forms a view that you are not an employee, he will seek to dismiss your application on the basis that it is not properly made under the Fair Work Act."

• [13] No response was received from the Applicant. As such, Chambers sent him the following email on 28 March 2025:

Chambers notes you were due to provide a response to the below correspondence by 4.00pm (AWST) Thursday, 27th March.

Deputy President O'Keeffe directs you to provide a response to the below correspondence by no later than 4:00pm (AWST) Monday, 31st March. Failure to comply with this direction may result in the Applicant's application being dismissed with no further opportunity to make submissions."

• [14] No response was received. As such, on 3 April 2025 Chambers sent the following email:

I refer to previous correspondence from Chambers dated 28th March. In that correspondence you were advised that if no response was received from you by 31st March the Deputy President could decide to dismiss your application with no further opportunity for you to respond.

As you have not responded to date, you are now advised that if you do not respond by 2.00pm (AWST) Friday 4th April your application will be dismissed."

• [15] As at 5.00pm (AWST) 7 April 2025 no response was received.

• [16] Previous decisions of the FWC have found that the items in s587(1)(a)-(c) do not limit the powers of the FWC to dismiss applications (Samuel v Collins Transport Group Pty Ltd [2019] FWC 5521 (Samuel) at [12]) and that it has been found that an Applicant's failure to prosecute their application can be a grounds for dismissal (Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [16]; Samuel at [13]; Atakaramians v Baycorp (AUS) Pty Ltd t/as Baycorp [2013] FWC 7641 at [8])

• [17] In this instance, I am persuaded to exercise my powers under s587 to dismiss the application. The Applicant has repeatedly failed to respond to correspondence form the FWC and in doing so has failed to prosecute his application. An order dismissing the application will issue.

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