Adam Thomas v Insurance Australia Group Services Pty Ltd T/A Insurance Australia Group

[2014] FWC 470

[2014] FWC 470

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adam Thomas
v
Insurance Australia Group Services Pty Ltd T/A Insurance Australia Group
(U2009/13904)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 17 JANUARY 2014

Application for relief from unfair dismissal - request for adjournment declined.

[1] On 23 November 2009, Mr Adam Thomas made an application for an unfair dismissal remedy. He had been employed by Insurance Australia Group Limited and he was dismissed on 10 November 2009. Mr Thomas’ claim was conciliated on 6 January 2010 but it did not settle. On 2 March 2010, Mr Thomas’ representative filed a notice of discontinuance.

[2] On 6 June 2012, Mr Thomas sent the Fair Work Commission (the Commission) an email in which he advised that he wished to reopen his unfair dismissal claim. On 6 June 2012, the then Termination of Employment Panel Head, Commissioner Jones caused a letter to be sent to the Applicant, noting that the matter had been discontinued and advising that his request to have the matter re-opened would be set down for mention on 14 June 2012.

[3] At that mention Commissioner Jones made the following comment:

“What does the respondent say about this proposition that I reopen the file but send it to a Fair Work member, not a conciliator, to have a conciliation to see whether there might be some settlement reached or arrangement reached that would deal with the - there seem to be a lot of issues on foot. And then, if it can’t be done- settled well, then, Mr Thomas will just have to his luck at the hearing.” 1

[4] The Respondent advised that it would be open to participating in conciliation. 2

[5] In February 2013, Mr Thomas received a medical clearance to participate in the conciliation.

[6] The matter was conciliated on 18 March 2013 but it did not resolve the claim.

[7] On 2 May 2013, correspondence was forwarded to Mr Thomas asking if he was available for a hearing in July, August or September. No response was received from Mr Thomas.

[8] On 30 May 2013, a further attempt was made to contact Mr Thomas.

[9] On 5 June 2013, a letter was sent to Mr Thomas advising him that if he wished to proceed with his application he would need to file an application to set aside the notice of discontinuance filed on 2 March 2010. Mr Thomas was sent a Form F1 to enable him to make the application.

[10] The correspondence sent to Mr Thomas was returned to the Commission so a message was left on his mobile phone to call the Commission. On 7 August 2013, Mr Thomas advised that he was overseas and that he would pursue the matter upon his return.

[11] On 5 June 2013, the Respondent advised that it opposed the notice of discontinuance being set aside and asked that the matter be referred to a jurisdictional hearing.

[12] On 6 January 2014, Mr Thomas advised the Commission that he wished to proceed with his application.

[13] On 8 January 2014, I caused a letter to be sent to Mr Thomas advising that no application to set aside the notice of discontinuance had been considered by Commissioner Jones on 14 March 2012 and no order setting aside the notice of discontinuance had been made. Mr Thomas was advised that he could either make such an application or make another unfair dismissal application and apply for an extension of time.

[14] On 8 January 2014, Mr Thomas sent a detailed email to the Commission putting forward reasons why he contended that he was not required to file a new application because Commissioner Jones had determined to reopen his application.

[15] Given the controversy I determined to conduct a hearing of the matter to hear submissions from the parties as to whether the file was open and should be listed for arbitration. It was listed for jurisdiction hearing on 21 January 2014 by video link.

[16] The Respondent’s representative requested an adjournment which I refused.

[17] On 13 January 2014, Mr Thomas sought advice as to whether the hearing was to hear his unfair dismissal application or to determine if the matter was reopened.

[18] On 13 January 2014, Mr Thomas was advised that the hearing was to determine the latter.

[19] On 14 January 2014, Mr Thomas advised that he considered the scheduling of the hearing to consider whether his matter had been reopened was unacceptable. On 14 January 2014, Mr Thomas was advised that the hearing would proceed.

[20] Mr Thomas sent email on 14 January 2014 objecting to the hearing taking place.

[21] On 15 January 2014, Mr Thomas sent an email advising that he was unable to attend due to prescheduled and booked travel. He advised that if the hearing was to hear and determine his unfair dismissal application he would be willing to change his travel arrangements.

[22] On 15 January 2014, at my request, Mr Thomas was asked by my Associate to provide evidence of his travel plans and when those plans were made.

[23] By email of the same date Mr Thomas asked under what provision of the Act the Commission was entitled to request this information. Mr Thomas was referred to section 590 of the Fair Work Act 2009. Mr Thomas, by email dated 16 January 2009, declined to provide the information sought by the Commission.

[24] On 16 January 2014, Mr Thomas was asked to provide details of his future availability. On 17 January 2014, Mr Thomas responded but did not provide the requested information. In that email Mr Thomas requested that I stand down from the matter and refer the matter to another member of the Commission.

[25] I have determined not to grant Mr Thomas’ application for an adjournment. It is incumbent on a party making an adjournment application to prove that such an adjournment is necessary. 3

[26] Mr Thomas was provided with an opportunity to provide evidence to support his claim that he was unavailable. He was further provided with an opportunity to provide advice of alternative dates on which he would be available. He did not provide the information sought.

[27] The application for adjournment is therefore dismissed.

[28] There is insufficient evidence before me to warrant an adjournment. Mr Thomas’ email makes it clear that if the matter to be determined was his application for an unfair dismissal remedy he would be available. Further, given there was no indication from Mr Thomas about his future availability, I am not prepared to adjourn the matter without a hearing date being determined. Given the history of this matter, I consider it would not be in the interest of either party for this controversy to remain unresolved.

[29] The hearing will therefore proceed and if either party fails to attend they are advised that I will determine the matter on the material that is put before me at the hearing. I note that Mr Thomas has not provided copies of many of the emails sent to the Commission to the Respondent. If he wishes me to have regard to the matters raised in those emails in considering the matter he must forward copies to the Respondent.

[30] I note Mr Thomas in his latest email has asked that I stand aside. Should Mr Thomas wish to proceed with such an application he should file an application in accordance with the Fair Work Commission Rules 2013 and serve the application on the Respondent. That application will then be considered by me having provided the parties with an opportunity to be heard.

DEPUTY PRESIDENT

 1   Transcript PN 95.

 2   Ibid PN 99.

 3   S8287.

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