Ajay Singh v MSS Security Pty Ltd

[2015] FWC 1802

[2015] FWC 1802

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ajay Singh
v
MSS Security Pty Ltd
(U2014/11230)

COMMISSIONER CLOGHAN PERTH, 30 APRIL 2015

Application for relief from unfair dismissal - s.399A application to dismiss.

[1] This is an application by MSS Security Pty Ltd T/A MSS Security (MSS or Employer) that an application made by Mr Ajay Singh (Mr Singh or Applicant) be dismissed pursuant to s.399A of the Fair Work Act 2009 (FW Act) because the Applicant unreasonably failed to comply with the Fair Work Commission (Commission) Directions issued on 2 September 2014.

[2] The background to Mr Singh’s application is as follows:

• the application was not settled at conciliation on 27 August 2014;



• on 27 August 2014, the Conciliator forwarded to both parties correspondence confirming that the application had not been settled at conciliation and that he had referred the matter for arbitration before a member of the Commission;



• on 2 September 2014, I issued procedural directions for a hearing on 4 March 2015;



• at the bottom of the Directions in bold are the words “The Applicant and Employer must comply with these directions”;



• on 1 October 2014, the Employer filed in the Commission, and served upon Mr Singh, the documents which it intended to rely on in the hearing;



• Mr Singh sent an email to the Employer on 1 October 2014 stating, “why are you sending me these documents? (the documents the Employer intended to reply upon in the hearing)”. The Employer responded on the same day that the documents “are being sent to you in accordance with the directions provided by the Commission...If you have any queries about the process it is probably more appropriate for you to direct these to the Commissioner’s Chambers/Associate rather than to me”. The Employer, sent a copy of the Applicant’s email and its response to my Associate;



• the Applicant failed to comply with the Directions on 1 October 2014;



• on 29 October 2014, Mr Singh failed to comply with Direction [2] which required him to file in the Commission a statement of facts, witness statements (if any) and any other documentary material, he intended to rely upon in support of his application;



• on 10 November 2014, the Employer filed a s.399A of the FW Act application for Mr Singh’s application to be dismissed, as Mr Singh had unreasonably failed to comply with my Directions issued on 2 September 2014;



• the Employer’s application pursuant to s.399A of the FW Act was copied to Mr Singh at the same time as it was filed in the Commission;



• on 14 November 2014, at 11.48pm I issued my Decision and Order concerning the Employer’s application pursuant to s.399A of the FW Act ([2014] FWC 8088);



• at 11.56am on 14 November 2014, Mr Singh emailed my Associate as to why “I came up with a final decision”;



• at 12.01pm on the same day (14 November 2014), Mr Singh again emailed my Associate and advised “I am completely opposing this Order”;



• all these facts were known to the parties, and Commission, at the time I issued my Decision on 14 November 2014;



• Mr Singh appealed my Order. The appeal by Mr Singh was dated 15 December 2014. In his application to the Commission, Mr Singh stated that he originally made an application to appeal my Order on 26 November 2014, through the on-line process;



• Mr Singh failed to provide, in his appeal application, an answer to the question of whether he was making the appeal application within 21 days of the Order;



• as the appeal application had not been made within 21 days, the Vice President in the appeal proceedings stated, “in your notice of appeal, you say you’ve made the first attempt to file the appeal on 17 November” and asked the question “Is that right?” Mr Singh replies in the affirmative and “within 21 days I have done everything electronically”;



• Mr Singh explained in the appeal proceedings that, after his unsuccessful attempt to lodge a notice of appeal on 16 November 2014, he attended the Commission on 15 December 2014 to enquire as to the progress of his appeal. When advised that no appeal had been lodged, Mr Singh then lodged his appeal. The Full Bench found Mr Singh’s explanation satisfactory and granted the necessary extension of time to lodge his appeal;



• the Full Bench made a finding that Mr Singh had attempted to lodge a notice of appeal using the Commissions online facility, on 16 November 2014, and was unsuccessful;



• Having granted the extension of time, the Full Bench was satisfied that it was in the public interest to grant Mr Singh permission to appeal. In doing so the Full Bench at paragraph [18] stated:

“We consider that the appropriate course thereafter is to remit the matter to the Commissioner on the basis that he shall re-hear the respondent’s application filed on 10 November 2014 for the dismissal of the appellant’s unfair dismissal remedy application, and in doing so shall give the appellant an opportunity to be heard in relation to that application, in writing or at a hearing or both”.

[3] At paragraph [19], the Full Bench made the following Order:

“We order as follows:

(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The decision and order of Commissioner Cloghan of 13 November 2014 are quashed.
(4) The matter is remitted to Commissioner Cloghan.
(5) Commissioner Cloghan is directed to re-hear the respondent’s application lodged on 10 November 2014 for the dismissal of the appellant’s unfair dismissal remedy application, and in doing so shall give the appellant an opportunity to be heard in relation to that application, in writing or at a hearing or both.”

[4] On 29 January 2015, I issued amended Directions. Relevantly the Directions read:

“[1] On 23 January 2015, the Fair Work Commission (Commission) issued a Decision in C2014/8222 [2015] FWCFB 393. In accordance with paragraph [19] of that Decision, the following directions are issued with respect to the application by MSS Security Pty Limited (Employer) that Mr Singh’s (Applicant) originating application be dismissed pursuant to s.399A of the Fair Work Act 2009 (FW Act) because the Applicant has unreasonably failed to comply with the Commission’s directions issued on 2 September 2014. The Amended Directions are as follows.

[2] The Applicant is directed to provide to the Employer by no later than 4:00 pm Friday 13 February 2015 the following (and email a copy in Word or PDF format to [email protected]) as to why he did not comply with the directions issued by the Commission on 2 September 2014:

• a Statement of Facts asserted and upon which the Applicant relies (the statement should be in chronological and point order in a form that can be accepted or denied by the Employer);



• witness statements including the Applicant and others (if any) in support of the facts asserted (witness statements should be no more than four pages);



• other documentary material, if any, including decisions to be referred to, the Applicant intends to rely on in defence of the Employer’s application.

[3] The Employer is directed to provide to the Applicant by no later than 4:00 pm Friday 27 February 2015 the following (and email a copy in Word or PDF format to [email protected]):

• a response to the Statement of Facts asserted by the Applicant (There should be a response to each fact asserted by (i) agreeing with the fact asserted, (ii) disputing the fact asserted or (iii) neither agreeing nor disputing the fact asserted. Brief explanations should be provided where the Applicant’s asserted facts are disputed);



• a Statement of Facts asserted (if any) and upon which the Employer relies (the statement should be in chronological and point order in a form that can be accepted or denied by the Applicant);



• witness statements (if any) in support of any facts asserted (witness statements should be no more than four pages);



• other documentary material, if any, including decisions to be referred to, the Employer intends to rely on in support of its application.

[4] The Employer’s application pursuant to s.399A of the FW Act will be the subject of a hearing on Thursday 12 March 2015 at 9:00 am in which the Applicant is expected, but not required, to give evidence should he oppose the Employer’s application to dismiss his originating application for unreasonably failing to comply with the directions issued on 2 September 2014.

[5] The Applicant and Employer to appear at the hearing with a copy of all documentation submitted and exchanged as a result of these procedural directions.

NOTE:

• Applicant and Employer must comply with these directions.”

CONSIDERATION

[5] Mr Singh provided his submissions to the Commission on 8 February 2015. The Employer provided a response to the submissions.

[6] Consistent with the Full Bench Decision, Mr Singh was also provided with the opportunity to be heard in relation to the Employer’s application for the initial application to be dismissed because of non compliance with the Directions pursuant to s.399A of the FW Act.

[7] These are my findings as a result of Mr Singh’s submissions and his oral submissions:

• Mr Singh received and read the Full Bench Decision of 23 January 2015 1;



• Mr Sign received and read the Amended Directions of 29 January 2015 requiring him to provide to the Employer a Statement of Facts and witness statements (if any) as to why he did not comply with the Directions issued by the Commission on 2 September 2014 2;



• Mr Singh did not comply with the Amended Directions and provide the Employer or the Commission, a submission as to why he did not comply with the Directions issued by the Commission on 2 September 2014 3.

[8] Having not provided any written reasons for not complying with the Directions, I apprehend the grounds, from his oral submissions, that he did not comply with the Directions, for the following reasons:

• unaware of the system 4;

my ‘technical innocence’ 5;

lack of understanding and familiarity of the process 6;

lawyers are very expensive 7;

thought he had provided all the documents in this application 8; and

he followed the instructions of the Commission staff 9.

[9] In my view, the Commission, when exercising its discretion pursuant to s.399A of the FW Act, is required to make an evaluation of the facts and apply those facts to the legislative requirements and determine whether Mr Singh unreasonably failed to comply with the Directions issued on 2 September 2014.

[10] The Australian Concise Oxford Dictionary defines “unreasonable” as “not reasonable, going beyond the limits of what is reasonable or equitable”, I intend to adopt this simple and ordinary meaning.

[11] Mr Singh was sufficiently aware of the provision of the FW Act, to contest his alleged unfair dismissal and did so within nine (9) days of the dismissal. Mr Singh was also sufficiently aware of the provisions of the FW Act, to, within 15 minutes of my Order being issued on 13 November 2014, to advise the Commission that he “completely opposes your [my] Order.”

[12] Mr Singh was sufficiently aware of the provisions of the FW Act, according to the Full Bench Decision, to make an application to appeal my Decision and Order on 16 November 2014.

[13] To put it candidly, Mr Singh has a selective familiarity with the Commission’s processes of dealing with unfair dismissal applications, and I find such a selective approach self serving and unreasonable.

[14] Secondly, the Commission assists applicants by advising them, in writing, after unsuccessful conciliation, that the application will be referred to a hearing and suggests to the applicant that “you take some time to familiarise yourself with the requirements of arbitration. In particular, I [the Conciliator] recommend that you visit the Commission website to get an understanding of the process ( In addition, the correspondence states, “you must comply with all directions of the Commission. If you do not comply, the application may be dismissed and/or you may face an application for costs”. The correspondence also provides an explanation of what an outline of submissions and a witness statement are. (my emphasis)

[15] Mr Singh received and read the Conciliator’s correspondence dated 27 August 2014 10. The Directions were issued on 2 September 2014 - six (6) days later. Mr Singh can remember that he had to comply with the Directions11, but cannot remember reading that if he did not comply with the Directions, his application may be dismissed12.

[16] Having received such suggestions and advice of the Commission, Mr Singh has no explanation of this inability to comply with Directions issued on 2 September 2014. The only explanation, if it was an explanation, is that he “didn’t do anything” 13. I find doing nothing, unreasonable.

[17] On 1 October 2014, the Employer advised Mr Singh that, if he has any queries about the process of this application, he should contact my Associate. Mr Singh did not contact my Associate. Again, I find “doing nothing”, unreasonable. Further, “doing nothing” occurred over a period of two months, that is, from 2 September to 29 October 2014, when he was required to provide his statement of facts and witness statements.

[18] When asked why he did not seek advice during those two months concerning compliance with the Directions dated 2 September 2014, Mr Singh responded “that thought doesn’t come to my mind”. To not think to seek advice, in the circumstances, is unreasonable, especially after the Employer’s suggestion of 1 October 2014.

[19] Similarly, Mr Singh claims that he thought he had already provided all the documents required with this application. Such an explanation is contrary to the Conciliator’s correspondence of 28 August 2014, and the Commission’s Directions of 2 September 2014. Where an applicant’s thought processes are contrary to the facts, I find such an approach unreasonable.

[20] Mr Singh asserts that lawyers are very expensive. If the cost of seeking legal advice was a “reasonable” ground for non-compliance with Commission directions, I suspect, a significant proportion of applicants who would adopt a voluntary approach to compliance with directions and s.399A of the FW Act would serve no purpose. In my experience, the majority on unfair dismissal applicants do not seek legal advice but still comply with the Commission’s directions. I find such an explanation by the Applicant unreasonable.

[21] Finally, Mr Singh asserts that he followed the instructions of the Commission staff. Firstly, there is no evidence to support his assertion. Secondly, the plain fact is that Mr Singh did not comply with the Directions on 2 September 2014 and 29 January 2015. There is simply no evidence to support such a claim by Mr Singh.

CONCLUSION

[22] The Applicant was informed by the Commission six (6) days before the Directions were issued on 2 September 2014 that should he not comply with directions, his application may be dismissed.

[23] The Applicant was informed on the Directions issued on 2 September 2014 that he must comply with them.

[24] The Applicant, following the Full Bench Decision was given the opportunity in writing to state why he did not comply with the Directions on 2 September 2014. Mr Singh chose not to provide an explanation in writing.

[25] The Applicant, in oral submissions, provided an explanation of why he did not comply with the Directions issued on 2 September 2014. For the reasons set out above, I am satisfied that the Applicant has unreasonably failed to comply with the Directions issued by the Commission on 2 September 2014. Accordingly, and pursuant to s.399A of the FW Act, Mr Singh’s application is dismissed. An Order to this effect is issued with this Decision.

COMMISSIONER

Appearances:

A Singh, the Applicant on his own behalf.

S Pedlow, on behalf of the Employer.

Hearing details:

2015:

Perth,

12 March.

 1   Transcript PN44

 2   Transcript PN54 and PN58

 3   Transcript PN92

 4   Transcript PN94

 5   Transcript PN94

 6   Transcript PN102 qand PN222

 7   Transcript PN106

 8   Transcript PN134

 9   Transcript PN186

 10   Transcript PN140

 11   Transcript PN152

 12   Transcript PN156

 13   Transcript PN110

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