s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - s.587 application on Fair Work Commissions own initiative -application dismissed - dismissed for want of prosecution.

• [1] Mr Husnu Konak (the Applicant) filed an application to deal with contraventions involving dismissal with the Fair Work Commission (the Commission) on 4 October 2024, pursuant to section 365 of Fair Work Act 2009(Cth) (the Act).

• [2] I have determined to dismiss the application pursuant to s.587(1)(a), on account of it not having been made in accordance with the Act.

• [3] On 7 November 2024, the Respondent (Pacificgate International Pty. Ltd.) filed a Form F8A with the Commission, objecting to the application on the grounds that the application was lodged out of time (more than 21 days after the dismissal took effect). For context, Mr Konak's application asserted a dismissal which he says was notified to him on Sunday 30 October 2022. He says that he does not know the exact date when it took effect. If the termination took effect on 30 October 2022 his application was made 684 days out of time, with the last day for an in-time application being Monday 21 November 2022.[1] The Respondent argues that Mr Konak was not dismissed but abandoned his employment on 30 October 2022, an objection which is not determined in this decision.

• [4] The matter was allocated to me on 12 November 2024 for hearing and determination of the Extension of Time Jurisdictional Objection, with Directions issued to the parties by my Chambers on 14 November 2024.

• [5] The Directions required the Applicant to file his materials by 4:00PM Wednesday, 20 November 2024 and the Respondent to file its materials by 4:00PM Wednesday, 27 November 2024, with the hearing of the jurisdictional objection to take place at 10:00AM on Wednesday, 4 December 2024.

• [6] The Applicant did not file his materials by 4:00PM Wednesday, 20 November 2024 and my Chambers sent an email on 22 November 2024 warning the Applicant that his application was at risk of being listed for a Non-Compliance Hearing if he did not take steps to urgently provide his materials.

• [7] On 25 November, the Applicant emailed my Chambers with an explanation as to why he had not yet filed his materials. I then listed the matter for a Directions Hearing at 9:30AM Wednesday, 27 November 2024, to discuss the reprogramming of the Directions.

• [8] The Applicant attended the 27 November Directions Hearing on his own behalf and Ms Jess John of Law Squared appeared for the Respondent. During the Hearing, I discussed with the parties the possibility of referring the Applicant to the Commission's Workplace Advisory Service (WAS), so that he could receive independent legal advice on his situation before resuming his application. It was agreed that the Applicant would, once given the link by my Chambers to apply for the Advisory Service, apply for a session with the service and then, upon receiving that advice, inform the Commission of his decision on whether to pursue his application, in which case the Directions would be reset, or whether he wished to discontinue his application. Both the Applicant and Respondent agreed to this course of action.

• [9] Following the Directions Hearing, at 4:59PM on Wednesday 27 November, the following email was sent to the Parties by my Chambers;

C2024/7095 - Mr Husnu Konak v Pacificgate International Pty. Ltd.

As discussed at the Mention/Directions Hearing this morning, the Hearing listed in this matter is vacated and the Directions issued to the Parties on 14 November are paused, to be resumed at a later date if needed.

I will shortly lodge a request for legal assistance for the Applicant through the Commission. Once you have received legal advice Mr Konak, please advise Chambers whether you intend on continuing your application.

Additionally, please see attached correspondence sent from the Applicant to Chambers which the Respondent was not copied into. Please copy the other party into all correspondence sent to Chambers going forward.

• [10] My Chambers then initiated the process of referring the Applicant to the WAS. On 28 November, an email was sent to the Applicant by my Chambers as follows;

I write in relation to application C2024/7095 - Mr Husnu Konak v Pacificgate International Pty. Ltd.

As outlined by Commissioner Wilson at the Directions Hearing yesterday, The Commission operates a free legal advice service called the Workplace Advice Service. The service is available to eligible applicants and small business respondents. Assistance through the service will provide you with an opportunity to meet with a lawyer who will give you independent legal advice about your case.

The meeting with the lawyer will go for around one hour and is limited to providing advice and procedural guidance. If you would like to get legal advice through the Workplace Advice Service, complete this request form.

Once a completed form is submitted, the Workplace Advice Service team will do their best to arrange an appointment with a lawyer for you and will be in contact. There is a high demand for getting legal advice and it can take us up to 5 days to reply to your request.

If you have any further questions regarding the Service, please contact the Workplace Advice Service team via our helpline on 1300 799 675.

• [11] On 6 December 2024, my Chambers wrote to the Applicant inviting the Applicant to complete the WAS request form, as he was yet to apply. Later that day, the Applicant replied, saying he would "apply tonight when I get access to a laptop computer".

• [12] This application was never completed. On 3 February 2025, my Chambers emailed the Applicant the following;

RE: C2024/7095 - Mr Husnu Konak v Pacificgate International Pty. Ltd.

Mr Konak, the Workplace Advice Service (WAS) has advised that you are yet to lodge a request with them for advice. By 5:00PM Monday, 10 February 2025, please advise Chambers whether you wish to continue application C2024/7095 or to discontinue the application. If you wish to continue your application, the Jurisdictional Objections will be reset and the Directions reissued.

• [13] There has been no response from the Applicant to this correspondence.

• [14] 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 or 773 on the ground that the application:

• [15] In this case, for an application to be made "in accordance with this Act" it must have been made within the 21 day statutory time limit allowed for in s.366(1)(a) or "within such further period as the FWC allows" (s.366(1)(b)).

• [16] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

• [17] The Applicant has not provided evidence or materials in response to the Commission's directions dealing with the need for the Commission to consider an extension of time for the filing of his application. There is no other material before me that would allow me to be satisfied of the requirements of s.366 such as to allow a finding of exceptional circumstances for an extension of time.

• [18] On the face of the Applicant's application, it is made out of time and accordingly has not been made in accordance with the Act. The application must therefore be dismissed. An order giving effect to this decision will be issued along with this decision.[2]

[1] Noting that if the final day of the 21 day period falls on a weekend or on a national public holiday (where the Commission is closed) the timeframe will be extended until the next business day (see Acts Interpretation Act 1901 (Cth) s.36(2)).

[2] PR786936.

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