Davinder Gill v Wilson Security

[2011] FWA 2189

[2011] FWA 2189

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Davinder Gill
v
Wilson Security
(U2010/13847)

COMMISSIONER GAY MELBOURNE, 8 APRIL 2011

Arbitration - non attendance.

[1] In proceedings in Melbourne on Friday 11 March 2011 Mr Davinder Gill’s application pursuant to s.394 of the Fair Work Act 2009 (the Act) came on for Arbitration Conference/Hearing. As the transcript set out below reveals, there was no appearance from Mr Gill and no prior advice had been received as to his inability to attend.

“THE COMMISSIONER: Is there any appearance for Davinder Gill? It appears not. I am going to ask my Associate to go to the corridors and call this case. I will ask her to take that step now. My Associate advises me that there is no one in the corridors responsive to the cry for Davinder Gill and Wilson Security. I propose to say something about this application. It's an application made pursuant to section 394 and it was made on 4 November 2010. There was, the file advises, a conciliation proceeding before a member of staff of Fair Work Australia and advice was given that the application was to be referred for formal proceedings before a member of Fair Work Australia.

To that effect directions were issued in the normal way and I am not going to give a detailed narrative of the progress of this application, except to say the directions were not complied with by the applicant, Mr Davinder Gill. The directions were of 16 December and affected the parties in this way, requiring Mr Gill to file and serve by 19 January, the respondent to be responsive and set out their own material additionally by 9 February. The material on the file discloses that did not occur and what did occur was that several queries as to the status of the application were made to the registry officers from Wilson Security. The matter came on for a non-compliance hearing in Sydney on Thursday 3 February 2011 with Fair Work Australia being constituted by her Honour Senior Deputy President Acton. I am going to read the transcript of the proceedings on that day. The Senior Deputy President said,

“This matter is a non-compliance proceeding. The applicant was to file material by 19 January 2011 for a hearing on 11 March 2011. The applicant did not file the material by the due date. Attempts by Fair Work Australia to contact the applicant on several occasions have been unsuccessful. In light of this, what I propose to do is this. I will relieve the respondent of the requirement to file any material or attend the proceeding on 11 March 2011. In the event that the applicant doesn't attend on 11 March 2011 then in all probability the matter will be struck out. If the applicant does attend on 11 March 2011 then the respondent will be given the appropriate time and ability to deal with the matter at a future date. I adjourn this matter on that basis.”

Notices of listing with directions amended accordingly consistent with the statement of her Honour were issued on 3 February 2011, setting the matter down this morning. Of course matters are not dismissed lightly. I am not going to deal in a detailed way with the Tribunal's approach to the dismissal of matters, except to say that section 587 provides for Fair Work Australia to dismiss an application. I won't read that section. It has exclusions which don't apply presently and there is the general power. On all the information available to me the applicant in this case has been given every opportunity to prosecute this application and whilst it is difficult to come to a definite conclusion on the conduct of the applicant, (indistinct) to obligations to the Tribunal, the respondent and of course to the purpose which was behind his application in the first instance.

I am going to take the step, the applicant having been given, in my view, every reasonable opportunity to have the application heard and conscious that he has failed to provide any reasonable basis for not being in a position to present his case with a dismissal of the application. I propose to do that in this way. I will take this step. My Associate will obtain a copy of the transcript of this proceeding, send it by the various means available to Mr Davinder Gill with a copy for the respondent, with an indication that unless I receive by close of business on Friday, 18 March 2011 a satisfactory explanation for Mr Gill's non-attendance, for not having advised Wilson Security and Fair Work Australia of his non-attendance at the non-compliance proceeding and this proceeding, and satisfactorily indicating his intention to prosecute the application, the application will on that date 18 March be struck out pursuant to section 587. We will now adjourn.”

[2] I have been advised, and material to this effect is on the file, that the Reporting Service duly sent this transcript by email to Mr Gill and to the respondent at 2 pm on 11 March 2011.

[3] As nothing was received from the applicant by 18 March 2011 and, indeed, to today’s date, I have determined to dismiss the application. Every effort has been made to afford Mr Gill with the opportunity to present his case. For an applicant to not attend the hearing of their own proceeding and, further, to not advise the Tribunal and the other party is behaviour of a particularly discourteous nature. For an applicant to not respond to Directions designed to ensure efficient and fair hearing of matters in dispute is, similarly, difficult to fathom, particularly when one notes that at paragraph 2 of Mr Gill’s Application Form F2, he wrote, “Please help me bring everything in front of you.”

[4] I am also mindful that ‘a fair go all round’ is a relevant statutory consideration in employment protection cases under the Fair Work Act 2009 which, of course, must ensure real consideration is given to the interests of the respondent, particularly where an applicant refuses to comply, attend, or advise Fair Work Australia and generally remains incommunicado.

[5] While it is open to me to dismiss the application as a result of Mr Gill having failed to make good his claim, it is preferable in my view to use the general s.587(3)(a) power.

[6] An order appears below dismissing the application with effect from today’s date.

ORDER

[7] I order pursuant to s.587 of the Fair Work Act 2009 that the s.394 application for relief made by Mr Davinder Gill on 4 November 2010 is dismissed.

COMMISSIONER

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