Carter v The Hanna Group Pty Ltd - [2011] FWA 31

[2011] FWA 31

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Richard Carter
v
The Hanna Group Pty Ltd
(U2010/11445)

DEPUTY PRESIDENT SAMS

SYDNEY, 14 JANUARY 2011

Application for unfair dismissal remedy - failure of applicant to attend proceedings or comply with directions - want of prosecution - application dismissed.

[1] This decision will determine an application by the Hanna Group Pty Ltd (‘the respondent’) to dismiss an application lodged by Richard Carter (‘the applicant’) under s 394 of the Fair Work Act 2009 (‘the Act’). The application which was pressed by Ms B Pendlebury, Solicitor for the respondent, on 7 December 2010, would have the effect of summarily concluding these proceedings, thereby denying the applicant an opportunity to prosecute his unfair dismissal claim.

[2] The applicant was dismissed on 30 July 2010, from his position as a process worker, having been employed by the respondent for approximately eight months. While the reasons for the applicant’s dismissal are not necessarily relevant for the purposes of this decision, it is sufficient to note - and perhaps illustrative of his dilatory approach to prosecuting his unfair dismissal claim - that the reasons for his dismissal were said to be excessive absenteeism, an abrasive text message sent to his manager and an earlier warning in respect to careless and reckless forklift driving in the respondent’s warehouse.

[3] At this juncture, it is trite to observe that Courts and Tribunals must always adopt a cautious and careful examination of the facts and circumstances of a particular case when considering whether to dismiss a substantive application for want of prosecution by a defaulting party. In General Steel Industries Inc v Commissioner for Railways (NSW) and others (1964) 112 CLR 125, Barwick CJ held that the jurisdiction to terminate an action summarily, for want of a cause of action by the plaintiff, was to be sparingly employed and ought not to be used, save where the lack of the cause of action was clearly demonstrated. At pages 128 and 129 his Honour said:

The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to Order 26, r. 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FWA 31
Decision Date: 14 JANUARY 2011

CaseChat Overview and Summary

The case before the court involved an applicant, Carter, who sought an unfair dismissal remedy against The Hanna Group Pty Ltd. The dispute centred on whether the applicant had been unfairly dismissed from his employment and whether he was entitled to a remedy. The matter was heard in the Fair Work Commission, Australia’s workplace relations tribunal.

The primary legal issues that the court had to decide were whether the applicant's failure to attend the proceedings or comply with the directions of the Commission constituted a want of prosecution, and whether this warranted the dismissal of the application. The court also had to consider whether the applicant's non-compliance was excusable or if there were any mitigating factors that should be taken into account.

The Fair Work Commission found that the applicant's non-attendance at the scheduled proceedings and his failure to comply with the Commission's directions amounted to a want of prosecution. The Commission noted that the applicant had been given multiple opportunities to attend and comply but had not done so, resulting in significant delays and prejudice to the respondent. The Commission held that the applicant's conduct demonstrated a lack of commitment to pursuing the application and that this was not excusable under the circumstances. Consequently, the application was dismissed.

The Fair Work Commission ordered that the application be dismissed with costs to be paid by the applicant to the respondent. The court emphasised that its decision was based on the applicant's failure to attend and comply with the directions, and not on the merits of the unfair dismissal claim. The dismissal of the application did not preclude the applicant from refiling the claim if he could demonstrate a valid reason for his previous non-compliance.

Orders