Christian Palmer v Qube Pty Ltd T/A Qube Ports

[2013] FWC 6601

[2013] FWC 6601

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christian Palmer
v
Qube Pty Ltd T/A Qube Ports
(U2013/812)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 4 SEPTEMBER 2013

Application dismissed pursuant to s.399A of the Fair Work Act 2009.

[1] The following is an edited version of the text of the ex tempore decision delivered by me at the conclusion of proceedings on 23 August 2013.

[2] On 15 March 2013 Mr Christian Palmer (the applicant) lodged an application under section 394 of the Fair Work Act 2009 (the Act), seeking a remedy in relation to his dismissal from employment by Qube Pty Ltd trading as Qube Ports (the respondent) which took effect on 22 February 2013. Consistent with the practise of the Fair Work Commission (the Commission), the matter was referred for conciliation but a resolution of the application did not occur. Consequently, directions were issued for the progression of this matter.

[3] Initially the applicant was directed to file an outline of submissions, witness statements, and other documentary material upon which he wished to rely, by 27 May 2013. At that stage the applicant was represented by the Maritime Union of Australia (MUA). The MUA sought an extension of time within which to comply with the directions. An extension was granted until 31 May 2013. The MUA sought further extensions of time, principally for the reason that there had been some discussions between the parties and the MUA was confident of reaching a settlement in the matter but was having difficulty contacting the applicant. Those extensions of time were granted, first until 7 June 2013 and second until 14 June 2013, however the extended period for filing materials in accordance with the directions did not result in the applicant complying with those directions.

[4] On 2 July 2013, the MUA filed a notice of ceasing to act for the applicant. The matter had been listed for hearing on 4 July 2013. The applicant did not attend the scheduled hearing at 10 am and did not communicate with the Commission to provide an explanation for his absence. Upon being contacted later that morning by my Associate, the applicant advised my associate that his car had run out of petrol but would be there within an hour. The applicant also advised my Associate that he was unable to make contact because his mobile phone had run out of funds. The hearing on 4 July 2013 did commence some four hours after the scheduled starting time but the applicant was not in a position to prosecute his application. At that stage I decided to re-list the matter for a subsequent date and issued further directions requiring the applicant to file material in support of his application by 4 pm on 24 July 2013.

[5] The respondent to the unfair dismissal application filed, and subsequently amended, an application under section 399A of the Act seeking a dismissal of the application on the grounds that the applicant had failed to attend a hearing and had failed to comply with the directions of the Commission in relation to the conduct of the matter. The initial application was filed on 4 July 2013 and an amended application was filed on 26 July 2013. The applicant failed to comply with the further amended directions issued on 4 July 2013. Consequently, instead of proceeding with the substantive arbitration of the merits of the applicant’s claim, I decided to list this matter to determine the respondent’s application under section 399A.

[6] That application was listed for hearing on 15 August 2013. The applicant did not attend that hearing and did not provide any explanation for his absence. I decided that the applicant should be given one further opportunity to contest the respondent’s application and to explain to the Commission his failures to attend hearings and to file written material as directed. I therefore decided to adjourn the respondent’s application until 23 August 2013. I issued further directions that the applicant file material in respect of his application, and also in respect of the respondent’s application to dismiss, by close of business on 22 August 2013. The applicant failed to do so.

[7] The applicant communicated with my chambers in the afternoon of 23 August 2013, prior to the commencement of the scheduled hearing, whereupon he advised my Associate that, firstly, he had written to the Commission advising that he would not be attending although he said that he may have sent it to the wrong address. He also advised my Associate that he was unable to attend because he had a doctor’s appointment in relation to an injury sustained whilst he was renovating his house some weeks earlier. He also advised my Associate that his submissions were being prepared by a friend but that person had since been incarcerated and was unable to assist. No further evidence in support of any of those propositions or explanations was provided. No medical evidence has been provided and the directions have not been complied with.

[8] I do not find any of the explanations proffered by the applicant as credible and they do not reasonably explain, without more, his consistent failure to comply with directions of the Commission and his failure to attend scheduled hearings, notice of which he had been given.

[9] It is highly unsatisfactory for an applicant to lodge a claim for relief in this Commission and then consistently fail to attend scheduled hearings, consistently fail to comply with directions or to take any step to prosecute the application. A respondent to such an application is entitled to some certainty that claims made against them will be processed in a reasonable, efficient and expeditious manner. In order that this may occur, parties are required to comply with directions for the conduct of matters, which are aimed at facilitating a fair, efficient and expeditious hearing of an application.

[10] I am satisfied that the applicant has unreasonably failed to attend the hearing of 23 August 2013 and the earlier hearing of 15 August 2013 in relation to his application. I am also satisfied that the applicant unreasonably failed to attend, at the designated time, the scheduled hearing of this matter on 4 July 2013.

[11] I am also satisfied that the applicant has been given more than ample latitude to enable him to comply with the directions given in relation to his application, and has unreasonably failed to comply with those directions.

[12] The respondent has made an application under section 399A. The applicant has been made aware of the application and of the possible consequences of any failure to attend the hearing of the respondent’s application. Taking into account the statutory scheme and the circumstances of this case, for the reasons given earlier, I am satisfied that the respondent’s application should be granted and the applicant’s unfair dismissal application should be dismissed.

[13] At the conclusion of the hearing on 23 August 2013, I determined to dismiss the applicant’s application for unfair dismissal. I made an order [PR540842] to that effect on 28 August 2013.

DEPUTY PRESIDENT

Appearances:

D Reid for Qube Pty Ltd T/A Qube Ports.

Hearing details:

2013

Melbourne:

July 4.

August 15, 23.

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