Damian Kenney v Christie Tea Pty Ltd - [2014] FWC 448

[2014] FWC 448

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Damian Kenney
v
Christie Tea Pty Ltd
(U2013/11707)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

ADELAIDE, 21 JANUARY 2014

Application for unfair dismissal remedy - failure to participate in proceedings - s.339A application - consideration of the circumstances of the applicant’s failure to participate in proceedings.

[1] This decision deals with an application by Christie Tea Pty Ltd (Christie Tea), pursuant to s.399A of the Fair Work Act 2009 (the FW Act) to dismiss an unfair dismissal application lodged by Mr Kenney on 19 July 2013.

[2] Mr Kenney’s application was listed for conciliation on 29 August 2013. This conciliation could not occur because Mr Kenney could not be contacted. On 30 August 2013 Mr Kenney advised by e-mail that he was now living in England but was still contesting the application and advised that he sought to communicate with the Fair Work Commission (FWC) by e-mail.

[3] The application was referred to me for determination. A directions conference was listed for 21 November 2013. Again, Mr Kenney did not participate and could not be contacted. It was in this context that Christie Tea lodged the s.399A application.

[4] Section 399A states:

“399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.”

[5] On receipt of that s.399A application I issued further directions which were again e-mailed to Mr Kenney. These required Mr Kenney to provide, by 9 December 2013, evidence in the form of a statutory declaration or affidavit detailing acceptable reasons for his failure to participate in the various FWC proceedings. 1

[6] On 9 December 2013 the FWC received a signed declaration made under the United Kingdom Statutory Declarations Act 1835. In this declaration Mr Kenney advised that he had recently discovered the FWC e-mails in a junk mail e-mail account. Mr Kenney advised that he had not been checking that account diligently as he had been ill and had been in hospital in October 2013. He advised that he was still awaiting health test results. Mr Kenney confirmed that he sought to pursue the application and asked that dates be set for this purpose.

[7] On 17 December 2013 Christie Tea provided written submissions which detailed the various steps taken by the FWC to contact Mr Kenney and reiterated that the application should be dismissed. Christie Tea asserted that Mr Kenney’s failure to attend the FWC conferences was an unreasonable act. It advised that it was aware that the FWC had endeavoured to make telephone and e-mail contact with Mr Kenney on multiple occasions but that Mr Kenney had not responded to those calls or e-mails. Further, that Mr Kenney had not provided a reasonable explanation for his failure to acknowledge receipt of earlier e-mails and his later assertions that these e-mails had gone to a “spam” folder. Christie Tea asserted that Mr Kenney’s lack of diligence in pursuing his application should be taken into account as a factor which supported the dismissal of the initial application.

[8] Mr Kenney responded with a further e-mail of 18 December 2013. He advised that he had not provided FWC with his United Kingdom telephone number as he understood he would receive e-mail advice. Further, that he was unaware of the time period involved in progressing his application and was still subject to medical examination with respect to an irregular heartbeat. Mr Kenney provided a copy of advice to him from Mr Snow, representing Christie Tea which had been received as “Spam” mail in order to demonstrate that various documents were received in this manner.

Findings

[9] Mr Kenney’s e-mail advice to FWC of 30 August 2013 followed an attempt at conciliation which was unable to proceed because Mr Kenney did not attend. This advice made it clear that he had returned to the United Kingdom. This advice did not confirm any change to Mr Kenney’s telephone contact details. Consequently, Mr Kenney would have been aware that any FWC communication attempts were dependent on e-mail advice.

[10] It may be that the numerous FWC e-mails advising Mr Kenney of conference arrangements were regarded as “Spam” or junk mail. Mr Kenney had an obligation to check the e-mail system and an obligation to actively pursue his application. It was his own actions that restricted the communication with the FWC to e-mail arrangements. He did not respond to emails or follow up for some three and a half months. The FWC telephone conciliators e-mail to Mr Kenney of 30 August 2013 stated:

“Dear Damian, thank you for responding to my email. I will put your response on the file and can I also forward it to the Respondent? I can’t comment as to how this matter may ultimately be proceeded with or managed as that will be in the hands of the Member who is allocated to arbitrate it. Conciliation is usually undertaken prior to a matter being referred to arbitration, indeed it is unusual for an unfair dismissal to proceed to arbitration without having had a conciliation and having said that most unfair dismissal applications settle at conciliation. I understand that only about 2% of all unfair dismissal applications proceed to arbitration. However conciliation is a voluntary process and is totally dependent on both parties wanting to participate. I’m not aware of the Respondents view in regards to having another conciliation date; they may or may not decide to participate. I dare say they will be waiting to see if you respond and your views. The overwhelming majority of conciliations are conducted by phone so if you do decide that you want a conciliation you will need to provide the Commission with a suitable phone number and a suggested time frame.

For your interest I have also attached the web address for the Commission you will see that it contains a wealth of relevant information. Mr Kenney asserts that two other factors should be taken into account in considering his position. Firstly, he advises that he has been diagnosed with an irregular heartbeat and is still undergoing medical tests in that respect. Secondly, he advises that his wife underwent major surgery on 27 August and has had a lengthy convalescence.

[12] I have considered both factors. I have noted that Mr Kenney was able to communicate with the FWC by e-mail on 30 August 2013, which was after his wife’s major surgery. On the material before me, I am not satisfied that Mr Kenney’s wife’s ill-health prevented him from either thoroughly checking his e-mail or, alternatively, seeking clarification from the FWC as to the standing of his application. Secondly, evidence which substantiated that Mr Kenney’s own illness prevented him from again checking his own e-mail or seeking advice from the FWC has not been provided to me.

[13] As Mr Kenney’s actions dictated that the only manner of communication was by way of e - mail, I consider that he was under a positive obligation to ensure that this communication medium was operative and, given the elapsed time in this matter, to actively pursue his application. He did neither. As a consequence I consider his lack of action led to his failure to participate in the successive FWC conferences and therefore represented an unreasonable act.

[14] Mr Kenney’s application will be dismissed on this basis. An Order (PR546923) to this effect will be issued.

SENIOR DEPUTY PRESIDENT

1 Directions of 23 November 2013

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