Adnan Syed v BP Retail No. 1 Riverside Quay T/A BP Retail - BP Australia Pty Ltd

[2014] FWC 1189

[2014] FWC 1189

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adnan Syed
v
BP Retail No. 1 Riverside Quay T/A BP Retail - BP Australia Pty Ltd
(U2013/3244)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 18 FEBRUARY 2014

Application for relief from unfair dismissal.

[1] Mr Adnan Syed lodged an application alleging he was unfairly dismissed by BP Retail No. 1 Riverside Quay T/A BP Retail - BP Australia Pty Ltd (BP Australia).

[2] Directions were issued on 4 December 2013 requiring Mr Syed to file and serve witness statements and submissions by noon on 6 January 2014. On 6 December 2013 Mr Syed contacted a member of the Fair Work Commission (the Commission) staff and asked for information about the format of his submissions.

[3] Mr Syed did not comply with the directions and the matter was listed for a non compliance hearing on 16 January 2014. Mr Syed did not attend the non compliance hearing. On 16 January 2014, a letter was sent to Mr Syed advising him that BP Australia had made an application under s.399A of the Fair Work Act 2009 to dismiss his application because he had failed to comply with the directions of the Commission. He was given until 30 January 2014 to file any material in opposition to the application to dismiss.

[4] On 18 January 2014, Mr Syed sent an email in which he advised that he had left Australia on 16 December 2013 because of an emergency, he was in an unstable condition and he had not been aware of the emails. BP Australia responded to that email by applying to have the matter determined on the papers because the directions were issued to Mr Syed before he left Australia and there was no explanation of why he did not request an extension of time or at least communicate with the Commission or BP Australia. Further, he had provided no satisfactory explanation of why he was not able to access his emails, details of his unstable condition or the nature of the emergency which caused him to not comply with the directions or contact the Commission.

[5] On 7 February 2014, Mr Syed provided the Commission with a ticket dated 2 December 2013 for his trip to India as well as medical certificates for 23 and 27 September 2013 and one dated 21 December 2013 for a period of one month.

[6] A hearing was conducted by telephone to hear from the parties on 17 February 2014. At the hearing I granted permission to Mr Leong, a legal practitioner, to represent BP Australia as it would enable the matter to proceed more efficiently. Mr Syed represented himself.

[7] Mr Leong pressed the s.399A application submitting that Mr Syed had not provided a satisfactory explanation for his non compliance and for his lack of communication with the Commission.

[8] Mr Syed stated that he did not file material in support of his application because he intended relying on the material in his form F2.

Consideration

[9] Section 399A of the Act provides the Commission with the discretion to dismiss an application on application by the employer if the applicant in an unfair dismissal matter fails to comply with directions.

[10] In this case it is not disputed that Mr Syed failed to comply with the directions issued by the Commission.

[11] The starting point in matters of this kind is the proposition that Mr Syed is entitled to have his case heard.

[12] A Full Bench of the then Australian Industrial Relations Commission in A. Ghalloub v Aon Risk Services Australia Limited discussed the interrelationship between the right to be heard and the role of case management. That decision makes it clear that case management is not an end in itself.

[25] Directions are often issued to facilitate the timely and expeditious determination of the application.While the utility of directions may vary depending on the nature of the proceedings, directions can play an important role in case management.If complied with they help to delineate the issues of fact and law and reduce the need for adjournments to take instructions or to gather evidence. The importance of case management is now widely recognised in the law, and directions for hearing a matter are an important aspect of case management in the Commission.In Queensland v. J.L.Holdings Pty Limited the High Court accepted the importance of case management principles but said:

“However, nothing in that case suggests that those principles might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.”

[26] Most if not all Australian courts have an inherent power to control abuse of their process and to dismiss a proceeding for want of prosecution. In many jurisdictions the rules of court govern the circumstances in which an action may be dismissed on that basis.In Lenijamar Pty Ltd and Others v AGC (ADVANCES) Limited Wilcox and Gummow JJ considered the application of Order 10 rule 7 of the Rules of the Federal Court and said:

“The discretion conferred by Order 10, rule 7 is unconfined, except for the condition of non-compliance with a direction. As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an appellant is such as to indicate an inability or unwillingness to cooperate with the court and the other party or parties in having the matter ready for trial within an acceptable period and cases - whatever the appellant’s state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non-compliance may be minor, the cumulative effect of an appellant’s defaults may be such as to satisfy the judge that the appellant is either subjectively unwilling to cooperate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.

In the second of the two situations we postulate, a significant continuing default, it does not really matter whether there have been earlier omissions to comply with the court’s directions. Ex hypothesi the default is continuing and is imposing an unacceptable burden on the respondent. But the continuance of the non-compliance is of the essence of this situation. If, when the court looks at the matter, the direction has already been complied with, the defaulting appellant may be ordered to pay any wasted costs; but it would be difficult to justify the dismissal of the proceeding solely because of that default.”

[27] As is evident the Court noted the width of the discretion conferred by the rule and went on to specify two situations in which an application might be dismissed for want of prosecution.The first situation is one in which the appellant has a history of non-compliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period.The second situation is one in which continuing non-compliance is causing unnecessary delay, expense or other prejudice to the respondent. Although obviously not binding in relation to the Commission’s proceedings, we think that these observations usefully summarize some of the matters to which the Commission should have regard when considering whether to dismiss an application for want of prosecution.(references omitted) 1

[13] In this matter Mr Syed is self represented. Unrepresented parties are often unclear about what they are required to do when directions are issued. In this case, Mr Syed contacted the Commission and asked for information about what was required. Despite this it was clear from the hearing that Mr Syed does not understand that he will be required to give sworn evidence to the Commission about the events that lead to the termination of his employment and put arguments to the Commission about why he says his dismissal was unfair.

[14] Mr Syed to the best of his ability provided the Commission with documents to explain his non-compliance. While Mr Syed has not provided a satisfactory explanation of why he at least did not contact the Commission prior to leaving Australia, it is clear on the documents that before he had notice of the directions, he had made arrangements to return to India on short notice. He also provided a medical certificate for the period from 20 December 2013 to 20 January 2014. I accept that while Mr Syed has some access to his emails whilst he was overseas, I accept that he did not deliberately ignore the notice of the non-compliance hearing.

[15] In those circumstances I am not pursued that Mr Syed’s non compliance warrants the dismissal of his application. However I accept the submissions of BP Australia that they are entitled to have more detail about the case that Mr Syed intends putting. I will therefore issue directions requiring the parties file material in support of their respective positions

DEPUTY PRESIDENT

Appearances:

Mr A.Syed for the Applicant.

Mr C.Leong for the Respondent.

Hearing:

2014:

Melbourne by telephone;

17 February.

 1   PR956665 at [25]-[27].

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