Blayze Pemberton-Burden v Fire Protection Association Australia

[2020] FWC 3948

[2020] FWC 3948

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Blayze Pemberton-Burden
v
Fire Protection Association Australia
(U2020/2343)

COMMISSIONER BISSETT MELBOURNE, 30 JULY 2020

Application for an unfair dismissal remedy.

[1] On 29 February 2020 Mr Blayze Pemberton-Burden (Applicant), through his father, Mr David Burden, made an application to the Fair Work Commission seeking relief from unfair dismissal. The Applicant was dismissed from his employment with Fire Protection Association Australia (Respondent) on or about 10 February 2020. Shortly thereafter the Applicant was involved in an incident in Melbourne central business district which has resulted in his incarceration with a release date of about February 2021.

[2] The application was listed for conciliation which could not proceed as access to the Applicant was not possible.

[3] Following further reports on progress of the Applicant’s criminal matters the application was subject to a Mention on 23 June 2020. At the Mention the Respondent sought that the matter be “scheduled in the usual manner”.

[4] Following the Mention of the application directions were issued to the parties which required, inter alia, that:

1. Mr Burden provide evidence of his power of attorney from the Applicant and advise as to his capacity to contact/seek instructions from the Applicant;

2. Mr Burden provide a proposed timetable for filing submissions and evidence and a hearing date;

3. The Respondent file any material in reply.

[5] On 8 July 2020 Mr Burden filed with the Commission a copy of the power of attorney granted by the Applicant which provides that Mr Burden may instigate, prepare, negotiate and settle a Fair Work Commission matter in relation to his employment with the Respondent. That power of attorney was signed by the Applicant and effective from 10 February 2020.

[6] Mr Burden says that regular communication with prisoners, and hence his son, remains difficult because of COVID-19 and, because of these restrictions, he is uncertain as to when he might gain instructions for the filing of evidence by the Applicant although Mr Burden says he has substantial information in relation to the dismissal.

[7] For these reasons Mr Burden seeks compliance dates that would require the Applicant to file his evidence and submissions after 5 February 2021 with a hearing date to follow.

[8] The Respondent objects to the request of Mr Burden. It submits that the Applicant effectively seeks a stay of proceedings.

[9] Due to the Applicant’s incarceration and difficulties in gaining access to him, Mr Burden has applied to have directions set which would not require a hearing of the application until 2021. The Respondent submits that the request of Mr Burden is “absurd, entirely inconsistent with the objects of the FW Act [and] prejudicial to the Respondent”. It says the proposal should be rejected.

[10] Alternatively the Respondent submits the Commission could issue self-executing orders which set a timetable within which the Applicant be required to file his evidence and submissions and, should he fail to do so, the application be dismissed pursuant to s.399A of the Fair Work Act 2009 (FW Act).

[11] The Respondent submits that the Applicant has failed to meet the requirements for a grant of a stay with respect to the application. It submits the Commission should dismiss the application for want of prosecution as the Applicant will not be in position to prosecute his application until 2021.

Consideration

[12] I have determined to programme this matter taking into account the situation of the parties.

[13] I have, in the first instance, determined that the application should be referred to conciliation. It is apparent, from the power of attorney, that Mr Burden has the power to enter into negotiations and settlement of the matters before the Commission. In sending the application for conciliation I would remind the parties that the incarceration of the Applicant, who may have contributed to the actions that resulted in that incarceration, are not matters for the Commission to deal with. The conciliation is in relation to the application for unfair dismissal only.

[14] Should the matter not settle at conciliation it is my intention to issue directions that will require the Applicant to file and serve his evidence and submissions by no later than 19 February 2021. The Respondent will be given three weeks from that date to file and serve its evidence and submissions in reply. A hearing date will be set in due course.

[15] Mr Burden is directed to advise the Commission should the Applicant be released from prison prior to 5 February 2021. If this occurs the directions will be amended to bring the compliance dates forward.

[16] I have determined that the matter be heard on this proposed timetable after balancing the interests of the Applicant who, whilst in prison because of actions he took, is restricted in access to Mr Burden by matters beyond his control, and those of the Respondent to have the application heard as expeditiously as possible. I have taken into account that the Applicant is incarcerated and the public information available as to the effect of COVID-19 on access to prisoners (that is, that there are no in-person visits available 1).

[17] I have also considered that the Applicant has a release date such that the adjournment of proceedings has an end date to it. This adjournment request is not quite the same as a stay of proceedings, which, in relation to criminal proceedings, generally relates to a desire of an applicant to not incriminate themselves and often has no certainty as to the date. In this case it is an inability of the Applicant to provide comprehensive instructions to his representative that is the cause of the delay. Further, it is not that the Applicant cannot participate but that there is a delay to his participation.

[18] I am mindful that the delay in hearing the matter will create some prejudice to the Respondent. However, it is now forewarned of the extent of the delay and can take some steps to mitigate any adverse impacts caused by it. I do appreciate that witnesses the Respondent may wish to call may no longer work for the Respondent. This is acknowledged but can be offset by the issue of orders on persons who may otherwise be reluctant to do so, to attend any hearing. In this respect I note that both parties may be affected by the delay.

[19] In making this decision I have not had regard to the submissions of Mr Burden that the Respondent has failed to address the matters raised in the application for unfair dismissal. That has not been the focus of proceedings to date which have been in relation to programming only.

[20] It is not desirable that there be a substantial delay between the making and hearing of an application but, in this instance, I consider the timetabling to be reasonable.

[21] I would encourage the parties to try to find some means by the which this matter might settle at conciliation such that it might be brought to close.

[22] The Applicant is required to advise the Commission if the matter settles or not at conciliation. If the matter does not settle formal directions will be issued.

COMMISSIONER

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 1   See accessed 27 July 2020.