Desmond Dargusch v Department of Veterans Affairs

[2014] FWC 2850

[2014] FWC 2850

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Desmond Dargusch
v
Department of Veterans Affairs
(U2013/10001)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 1 MAY 2014

Application for relief from unfair dismissal.

[1] Mr Desmond Dargusch was dismissed by the Department of Veterans’ Affairs (the Department) on 7 May 2013. Directions were issued 21 November 2013 requiring Mr Dargusch to file material in support of his application by 16 December 2013. Mr Dargusch applied for and was given a significant adjournment and the latest directions required Mr Dargusch to file material by 4 April 2014.

[2] On 28 March 2014, Mr Dargusch requested a further adjournment of two months. This application was supported by his medical practitioner.

[3] The Department submitted that Mr Dargusch had previously been granted a lengthy extension of time. It further submitted that while Mr Dargusch made reference to his psychiatrist in his submissions in support of his application for an adjournment, no report or certificate from his psychiatrist has ever been provided. The Department submitted that if a further extension of time were granted, then it should be in the form of self executing orders which would provide that if Mr Dargusch did not comply with the directions the matter should be automatically dismissed.

[4] The Department did not point to any provision of the Fair Work Act 2009 (the FW Act) which empowers the Fair Work Commission (the Commission) to make such orders.

[5] The FW Act provides at section 399A, that upon an application by an employer the Commission may dismiss an application for an unfair dismissal remedy if an applicant fails to comply with directions. No such application has been made.

[6] This application was due to be heard in Brisbane on 12 May to 14 May 2014. Due to the number of matters to be heard in Brisbane at that time this matter has had to be adjourned to the next arbitration roster which is on 16 June to 20 June 2014.

[7] One of the objects of the FW Act is to provide a remedy if a dismissal is found to be unfair. Such remedies included reinstatement and/or compensation. The Commission, in dealing with unfair dismissal claims, is required to provide a fair go to both employers and employees. Part of that is hearing and determining matters promptly whilst providing procedural fairness to both parties.

[8] I have considered Mr Dargusch’s practitioner’s advice that Mr Dargusch needs a further two months to complete his submissions. However it was the earlier advice of his treating doctor that he required a four month extension which was given. Despite that lengthy adjournment, Mr Dargusch did not comply with the directions. However in that time Mr Dargusch has been able to correspond extensively with the Commission.

[9] This matter cannot continue to be adjourned.

[10] Directions will be issued for Mr Dargusch to file material in support of his application by 13 May 2014. Mr Dargusch will then have had nearly seven months from the date the first directions were issued to prepare his case. The Department will then have until 3 June 2014 to file material in opposition to the application. If Mr Dargusch fails to comply with the directions of the Commission, the Department is able to make an application under section 399A to have the application dismissed. If such an application is made, both Mr Dargusch and the Department will be heard in relation to that application.

DEPUTY PRESIDENT

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