Dion Smith v Department of Human Services (Commonwealth of Australia) T/A Commonwealth Service Delivery Agency (Centrelink)
[2012] FWA 5427
•28 JUNE 2012
[2012] FWA 5427 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Dion Smith
v
Department of Human Services (Commonwealth of Australia) T/A Commonwealth Service Delivery Agency (Centrelink)
(U2012/6432)
COMMISSIONER BULL | SYDNEY, 28 JUNE 2012 |
Unfair dismissal – application to dismiss, want of prosecution.
[1] This matter is an application under s.394 of the Fair Work Act 2009 (the Act) made by Mr Dion Smith (the Applicant) alleging that his previous employer, the Department of Human Services (Commonwealth of Australia) T/A Commonwealth Service Delivery Agency (Centrelink) (the Respondent) terminated his employment in circumstances which were unfair.
[2] The application was filed in Fair Work Australia (FWA) on 22 March 2012 and both parties participated in a conciliation conference by telephone on 16 April 2012. The parties were unable to resolve the matter and accordingly, it was referred for arbitration and set down to be heard in Dubbo on 20 and 21 June 2012.
[3] On 26 April 2012, Directions were issued to facilitate the arbitration of the claim. The Applicant was required to provide a written outline of his submissions and witness statements if any, by close of business 21 May 2012. The Respondent was directed to file and serve its outline of submissions and witness statements in reply by close of business 11 June 2012.
[4] The Applicant failed to comply with the Directions. Accordingly, on 23 May 2012, my Associate forwarded email correspondence to the Applicant, in which she communicated the Tribunal’s requirement that he comply with the Directions. On 25 May 2012, the Applicant contacted my Chambers by telephone and advised my Associate that he had not had access to his email account for some time. As a result, a copy of the Directions was again forwarded to the Applicant on that day by both email and registered post.
[5] On 30 May 2012, my Associate again made telephone contact with the Applicant who confirmed receipt of the Directions and further indicated to her that he wished to proceed with the matter. Additionally, during this discussion, the Applicant foreshadowed making a written request to Chambers for an extension of time for filing his outline of submissions and witness statements.
[6] Correspondence which reduced to writing the tenure of the discussions between my Associate and the Applicant on 30 May 2012 was forwarded to the Applicant by registered mail on the same day.
[7] On 6 June 2012, my Associate attempted to contact the Applicant on his mobile telephone. A voicemail message was left for him to make contact with my Chambers.
[8] On 12 June 2012, my Associate forwarded an email to the Applicant regarding his non-compliance with the Directions. The Applicant did not return the telephone call of my Associate on 6 June 2012, nor did he respond to her email of 12 June 2012.
[9] Accordingly, on 12 June 2012, my Associate forwarded an email to the parties advising that the matter would be re-listed for a one day only hearing in Dubbo on 21 June 2012 due to the Applicant’s non compliance with the Directions. A copy of this email was also sent to the Applicant by registered mail on the same day.
[10] On 13 June 2012, the Respondent’s solicitors Norton Rose Australia wrote to the Tribunal (copying the applicant) and advising that due to the Applicant’s failure to comply with the Directions they were instructed to request an adjournment of the matter at hearing, or in the alternative, would submit that the matter be dismissed on the basis the Respondent has no case to answer.
[11] On the 14 June 2012, a further email was sent to both parties by the Tribunal advising that at the hearing in Dubbo, set down for 21 June 2012 the Tribunal would consider any application by the Respondent to adjourn the proceedings on the basis that they could not have reasonably been expected to know the full nature of the Applicant’s claim.
[12] On 19 June 2012, email correspondence was forwarded to the Applicant by my Associate requesting confirmation of his attendance at the hearing. No response to that correspondence was received by FWA. This was backed up with two phone calls to his mobile phone leaving messages to be forwarded as text. No reply was received to these.
[13] On 20 June 2012, my Associate attempted to contact the Applicant by telephone on two alternate telephone numbers provided by the Respondent. On so doing, it appeared to my Associate, that both telephone numbers had been disconnected.
[14] The Applicant did not attend the hearing in Dubbo on 21 June 2012. The proceedings were delayed for 15 minutes and my Associate during this time unsuccessfully attempted to contact the Applicant on his mobile telephone.
[15] At the hearing, I heard submissions from the Respondent that the claim ought to be dismissed due to the failure of the Applicant to prosecute his case. I indicated on transcript that I accepted their argument and would publish my reasons in due course.
[16] On return to Sydney, it was noted by my Chambers that the Sydney FWA switchboard had received a telephone call from a Dion Smith at 16:09 hours on 20 June 2012 requesting to speak with myself. At this time the Tribunal was in transit to Dubbo. The mobile telephone number provided by Mr Smith was the same number the Tribunal had been using to contact the Applicant on, including the day of the hearing.
[17] At approximately 16:30 hours on 21 June 2012, my Associate again attempted to contact the Applicant but no contact could be made. The Applicant has not attempted to contact FWA since his non attendance at the hearing on 21 June 2012.
[18] Up until the date of this decision the Applicant has still not provided FWA with any explanation for his non compliance with the Directions issued or for his failure to attend at the hearing. Subsequent to the 30 May 2012 telephone conversation with my Associate, no direct contact with the Applicant has occurred despite numerous attempts.
[19] The Objects of Part 3-2 Unfair Dismissal of the Act are reflected at s.381 and include establishing a procedure for dealing with unfair dismissals which is quick, flexible and informal.
[20] Section 587(3) of the Act allows FWA to dismiss a matter on its own initiative or on application. Section 577 of the Act requires FWA to perform its functions and exercise its powers in a manner which is fair, just and quick. Section 600 of the Act also allows FWA to determine a matter before it in the absence of a person who has been required to attend before it.
[21] The Applicant has been given more than a “fair go” in this matter but has been unable or unwilling for reasons known only to the Applicant, to prosecute his claim.
[22] The Respondent employer is also entitled to have the claim dealt with expeditiously and be given a “fair go”.
[23] The conduct of the Applicant in not complying with the Directions issued; his failure to respond to emails and telephone calls since May 2012 and his non attendance at the hearing on 21 June 2012 evinces a clear intention not to prosecute his claim.
[24] It would not be consistent with a fair, just and quick process to allow this claim to remain on foot. The Respondent has incurred costs in travelling to Dubbo and public monies have been expended by FWA all to no avail.
[25] It is not in the public interest for FWA to allow this matter to continue, the Respondent is entitled to succeed with its application for the matter to be dismissed.
[26] For the above reasons this application is dismissed pursuant to s.587(3) for want of prosecution and in the public interest.
COMMISSIONER
Appearances:
No appearance for the applicant.
Y Shariff of counsel with K Hogan for the respondent.
Hearing details:
2012
Dubbo:
June 21.
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