Dr Alfonso Trudu v Commonwealth Scientific and Industrial Research Organisation T/A CSIRO

[2014] FWC 4306

[2014] FWC 4306

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dr Alfonso Trudu
v
Commonwealth Scientific and Industrial Research Organisation
T/A CSIRO
(U2010/12224)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 1 JULY 2014

Application for relief from unfair dismissal.

[1] Dr Alfonso Trudu was employed by the Commonwealth Scientific and Industrial Research Organisation (CSIRO) from 19 January 1998 until his employment was terminated on 23 August 2010.

[2] Dr Trudu lodged an application for relief pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that he was unfairly dismissed. The CSIRO replied that Dr Trudu’s position was made redundant and that was the reason for the termination of his employment.

[3] On 5 February 2014, CSIRO filed an application to dismiss Dr Trudu’s application. On 30 April 2014 I issued a decision 1 in relation to an application to adjourn that application which I refused. I issued directions for Dr Trudu to file material in opposition to CSIRO’s application to dismiss.

[4] On 29 May 2014, in compliance with those directions, Dr Trudu filed three documents. In one document, Dr Trudu agreed that the CSIRO’s application could be dealt with on the papers and that was supported by a letter from his medical practitioner. He also attached a letter dated 8 March 2014 where he made an application for an adjournment of CSIRO’s application to dismiss.

The Application to dismiss

[5] The CSIRO set out in its submissions the history of this matter and that background is not in dispute.

[6] The CSIRO submitted that the Fair Work Commission (the Commission) has the power to dismiss an application under s.587 of the Act.

[7] The CSIRO submitted that I should have regard to the prolonged period of inactivity by Dr Trudu in prosecuting his claim, namely the period of time between 12 October 2011 and 7 January 2014.

[8] The CSIRO submitted that I should have regard to the prejudice to the CSIRO that flows from that delay. The CSIRO rely upon a witness statement of Mr Warren Smith, Strategic Advisor, Workplace Relations and Policy who stated that Dr Bart Follink, the former Chief of Division for the CSIRO Process Science and Engineering (CPSE) (the division in which Dr Trudu previously worked) who had filed a witness statement in November 2010, no longer worked for the CSIRO. Dr Follink was the person who had identified Dr Trudu’s position as potentially surplus to CSIRO’s staffing requirements. Dr Follink’s evidence also responded to many of the events raised by Dr Trudu in his application. It was submitted that Dr Follink is a key witness for the CSIRO and even if Dr Follink was available to give evidence the delay will mean that his memory of events will have faded.

[9] Further, the CSIRO submitted that I should have regard to the additional costs that will be imposed on the CSIRO. Mr Smith gave evidence of costs already incurred by the CSIRO in booking flights and accommodation for the hearing in February 2011. As the hearing was not adjourned until two days before the hearing some of those costs could not be recouped.

[10] The CSIRO submitted that Dr Trudu’s medical condition is a relevant consideration and it must be weighed against the prejudice to the CSIRO.

[11] Dr Trudu relies upon his medical condition and submits that as a consequence he suffers a disability and that the Commission should not disadvantage him by dismissing his application. He submits that regard should be had to the fact that his disability is caused by the conduct of his employer. He also submitted that I should have regard to the decision of the Administrative Appeals Tribunal (AAT) in Trudu v Comcare. 2

[12] That decision was a review of the decision of Comcare to reject Dr Trudu’s claim for workers’ compensation on the basis that his condition was the consequence of actions taken by the CSIRO that prevented the condition satisfying the statutory definition of “injury.” Deputy President Hack of the AAT held that the various decisions were correct and affirmed the decisions. 3 That decision accepted that Dr Trudu had an injury which was linked to his work4 but he was not entitled to compensation because the actions of CSIRO were either, reasonable disciplinary action taken reasonably or reasonable administrative action taken in a reasonable manner.

[13] That decision noted that Dr Trudu first sought treatment for stress in March 2007 and his medical practitioner advised that he was unfit to work until 13 August 2007. He was cleared to return to work on 14 August 2007 and did return to work. On 2 October 2007, Dr Trudu was certified unfit to work. He returned to work on 7 November 2007. He was then absent from work from 7 February 2008 and did not return to work.

[14] Dr Trudu was not at work when the decision was made to terminate his employment.

[15] Dr Trudu was first advised by letter dated 30 March 2010 that his position was surplus to requirements and that therefore he may potentially be surplus to the CSIRO’s staffing requirements. That letter explained the rationale for the decision and advised him that as a potentially surplus officer he had preference for any roles at or below his existing classification level for which he was deemed suitable. It set out what steps would be taken to see if redeployment was possible. He was advised that if redeployment was not possible then the redundancy procedures would be commenced and the provisions of Schedule 3 of the CSIRO Enterprise Agreement 2008-11 (the Agreement) would apply.

[16] In April 2010, Dr Curson, Dr Trudu’s medical practitioner, advised the CSIRO that Dr Trudu was medically unfit to undergo the redundancy process.

[17] The process continued until Dr Trudu was made redundant on 24 August 2010.

Does the Commission have the power to dismiss Dr Trudu’s application for want of prosecution?

[18] Section 587 of the Act provides as follows:

“(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[19] In Adams v Monadelphous Engineering Pty Ltd, 5 the Full Bench dismissed an appeal for want of prosecution. In that decision the applicant had failed to comply with directions, failed to respond to communications from the Commission and had not attended the hearing. The Full Bench had regard to the powers of the Commission under ss.399A and 587 of the Act and dismissed the application for want of prosecution.6

[20] It should be noted that s.399A of the Act has no application to the matter before me as it only applies to matters where the termination of employment occurred after 1 January 2013.

[21] Commissioner Booth dismissed an unfair dismissal application 7 pursuant to s.587(1) when an applicant failed to participate in a hearing and the respondent had established that it had a defence for its action and the respondent would be prejudiced by further delay. That decision was upheld on appeal.8

[22] Deputy President Leary dismissed an unfair dismissal application 9 when an applicant failed to comply with directions. Deputy President Leary had regard to the length of time since the dismissal, namely two years, in exercising her discretion to dismiss the claim.

[23] I therefore conclude that s.587 of the Act permits the dismissal of an application for want of prosecution.

Should Dr Trudu’s application be dismissed?

[24] The starting point in this matter is that Dr Trudu is entitled to have his application heard and he must be allowed a reasonable opportunity to present his case and have his case considered.

[25] However, with that right comes responsibility. Dr Trudu is required to take steps to prosecute his case.

[26] Any decision to dismiss an application without hearing the merits of the application must be taken with caution and after a careful examination of the facts and circumstances of a particular case.

[27] The procedures adopted by the Commission in determining an unfair dismissal application must ensure that both the employer and the employee are afforded a fair go all round. 10

[28] The Commission’s procedures are to be quick, flexible and informal. 11

[29] Further, it is worth noting, that under the Act a person who has been dismissed is able to apply for a remedy. The remedies that are available are reinstatement, compensation and continuity of employment.

[30] In reaching my decision, I have had regard to the following:

The delay

[31] I have had regard to the length of time that has elapsed since Dr Trudu’s employment was terminated. It is now three years and 10 months since Dr Trudu has been employed by the CSIRO.

[32] I have had regard to the history of the matter. Dr Trudu first advised the Commission that he was medically disabled on 20 October 2010 but he did not suggest in that early correspondence that he was unfit to proceed. At this time he was due to file his evidence and submissions by 15 November 2010.

[33] Dr Trudu filed material on 15 November 2010 and sought an adjournment of the proceeding due to witness unavailability. This was not objected to by the CSIRO.

[34] On 13 February 2011, Dr Trudu sought a further adjournment of his application on medical grounds. Dr Trudu provided a medical certificate and advised that his application to the AAT had been adjourned indefinitely due to his medical issues. Dr Trudu relied upon s.29 of the Disability Discrimination Act 1992 (DD Act) to support his application for an adjournment.

[35] Section 29 of the DD Act provides that:

“It is unlawful for a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person on the ground of the other person’s disability in the performance of that function, the exercise of that power or the fulfilment of that responsibility.”

[36] The application was adjourned until May 2011 and at the request of CSIRO it was further adjourned until June/July 2011. On 23 June 2011, Dr Trudu foreshadowed a further adjournment and was asked to provide advice about when the matter could proceed.

[37] On 23 June 2011, Dr Trudu sought a further adjournment again supported by a medical certificate and advice that his application to the AAT had been adjourned indefinitely due to his medical issues. The application was adjourned.

[38] On 27 September 2011, Dr Trudu advised that his medical practitioner had advised that he was still unable to proceed and that on 23 September 2011 the AAT had again adjourned his application due to his medical condition. The application was adjourned.

[39] On 12 October 2011, parties were advised that the application was adjourned indefinitely until Dr Trudu’s medical practitioner advised that he was able to proceed.

[40] Dr Trudu did not advise the Commission that in March 2012 his claim against Comcare proceeded and he had represented himself in his claim before the AAT. A decision was issued in May 2012.

[41] Dr Trudu made no contact with the Commission until he received a phone call requesting an update of his condition from Commission staff in February 2013 and advised that his medical practitioner had advised that he was unfit to proceed with his application.

[42] On 30 December 2013, Dr Trudu’s medical practitioner advised that Dr Trudu’s condition had stabilised and recommended a further adjournment.

[43] A mention of the application was conducted on 15 January 2014 and on 31 January 2014 the CSIRO filed its application to have the matter dismissed.

Dr Trudu’s health

[44] I have had regard to Dr Trudu’s disability.

[45] I have considered whether dismissing Dr Trudu’s claim would breach s.29 of the DD Act.

[46] This requires a comparison between Dr Trudu’s situation, on the one hand, and a hypothetical person in Dr Trudu’s position but without his relevant characteristics, on the other. The comparator in this case is a hypothetical applicant who is unable to prosecute his or her claim for approximately four years for reasons other than disability.

[47] I do not consider that Dr Trudu is being treated any differently to a person who did not have a disability but was not able to proceed with his or her application for other reasons.

[48] I therefore do not consider that the dismissal of Dr Trudu’s claim is discriminatory.

[49] I have had regard to Dr Trudu’s decision to represent himself in these proceedings. Dr Trudu has chosen to represent himself in these proceedings in part because as his medical practitioner advised Dr Trudu has difficulty trusting solicitors. The medical evidence does not suggest the Dr Trudu is legally incompetent.

[50] The Act provides that parties can represent themselves but it also provides that a party can, with permission, be represented by a paid agent or lawyer. Dr Trudu could have elected to have other representation. There was no evidence that Dr Trudu was unable to instruct a representative to appear on his behalf.

[51] I have also had regard to the fact that during the time that Dr Trudu was assessed as not medically fit to proceed with this application, he represented himself in a lengthy matter before the AAT.

Prejudice to the CSIRO caused by the delay

[52] I do not give much weight to the fact that witnesses for the CSIRO no longer work for the CSIRO. This is not an unusual situation. However, I do have regard to the length of time that has elapsed since the events surrounding Dr Trudu’s redundancy occurred. Dr Trudu was notified that his position was redundant in March 2010 which is over four years ago. While witness statements had been filed, I accept that people’s memories of what occurred and why would diminish over time and that as a result the CSIRO is prejudiced by the delay.

[53] I have not had regard to the flight and accommodation costs incurred by the CSIRO as a result of the adjourned hearing because the CSIRO did not oppose the adjournment.

Future delay

[54] I have had regard to the future delay. Dr Trudu’s medical practitioner is not able to give any indication when Dr Trudu will be, in her view, able to proceed with this application. Further, I note the earlier advice of Dr Trudu’s medical practitioner that “unless there is a breakthrough and a resolution of his grievances with CSIRO, Dr Trudu will remain unwell.” Given the decision of the AAT in 2012 and the length of time since his dismissal, I cannot be satisfied that Dr Trudu will be able to proceed to hearing in the near future.

Merits of the application

[55] CSIRO made a jurisdictional objection to Dr Trudu’s application. The CSIRO submitted that Dr Trudu’s position was redundant and that they had met their obligations under the Agreement to consult Dr Trudu and they attempted to redeploy Dr Trudu but there was no suitable position identified.

[56] Dr Trudu submitted that because he was off work due to his illness that the Agreement did not apply to him. 12

[57] Dr Trudu submitted that he had been unable to carry out his duties since September 2006 under normal conditions because he felt he had been harassed by his entire line management. He submitted that had he not been harassed his position would not have been made redundant. 13 Dr Trudu submitted that had he been at work “generating and contributing to projects within the Carbon Steel Materials Theme in the MDU, [he] would have saved [his] position.”14

[58] Dr Trudu submitted that no regard should be had to the redeployment process followed by the CSIRO because his medical practitioner said he was not fit to participate in such a procedure. 15

[59] Evidence filed by the CSIRO sets out the reasons Dr Trudu’s position was made redundant, the consultation process and the redeployment process. The CSIRO acknowledged Dr Trudu’s medical advice that he was not fit to participate in the redeployment procedure but submitted that until a new position for Dr Trudu was identified, there was no requirement for Dr Trudu to do anything and because no position was eventually identified, there was in fact nothing for him to participate in.

[60] The Commission is not able to look behind the reasons for the selection of a particular person for redundancy if it finds that there was a genuine redundancy. If a particular employee is selected for redundancy because of his or her disability or because he or she made a complaint about his or her employment, then the employee is able to make a general protections complaint. It is not a matter that can be determined by the Commission in an unfair dismissal application.

[61] Even if the Commission finds that the employer did not properly consult with the employee or redeploy the employee, the Commission is not able to consider the process for selecting the employee for redundancy. 16

[62] Therefore even if Dr Trudu’s submissions are correct that he was selected for redundancy because of his complaints about his treatment, these submissions would not be addressed by the Commission unless it was established that the CSIRO did not have a change in its operational requirements.

[63] In the material filed by the CSIRO, the evidence about its operational requirements is set out. Dr Trudu submitted, in part, that these changes resulted from his absence from the workplace which was caused by the CSIRO’s mistreatment of him. But for its conduct he says he would have been able to save his position. Even if I accept this submission, it does not alter the fact that Dr Trudu had been absent from the workplace for a significant period of time and the CSIRO made a judgement based on its experience during Dr Trudu’s absence that the work could be performed to its satisfaction without a position at Dr Trudu’s level.

[64] I have not reached any final conclusion about the merits of the objection raised by the CSIRO. However, I find that there is a strongly arguable case that Dr Trudu’s position was redundant. If that were the case then Dr Trudu’s case about why he was selected for redundancy would not be determined by the Commission.

[65] I have taken into account that this is an application for an unfair dismissal remedy. I have had regard to the fact that Dr Trudu was unfit to work since February 2008. Given the length of time and Dr Trudu’s state of health, it is improbable that Dr Trudu would be reinstated. Therefore the only remedy would be compensation.

[66] Even if this was not a genuine redundancy, in circumstances where Dr Trudu was medically unfit for work; not entitled to workers’ compensation payments; and had exhausted all other leave it is likely that the CSIRO would have terminated Mr Trudu’s employment for reasons other than redundancy. Given Dr Trudu’s medical condition, he was not able to perform the inherent requirements of his position for a considerable period. In such circumstances it is doubtful that any compensation would have been awarded.

Conclusion

[67] The decision to dismiss an application is discretionary and is not one I take lightly. I consider that on the material before me it is unlikely that Dr Trudu will be able to, in the near future, prosecute his claim. This will only add to the prejudice suffered by the CSIRO. The CSIRO is entitled to have their objection to Dr Trudu’s claim heard and determined. As Dr Trudu is unable to participate in that process then his application for an unfair dismissal remedy has no reasonable prospects of success. For these reasons I will dismiss his application and an order to that effect will issue with this decision.

DEPUTY PRESIDENT

 1   [2014] FWC 2830.

 2   Trudu v Comcare [2012] AATA 286 - a subsequent appeal against this decision by Dr Trudu was discontinued.

 3   Ibid at [1]-[3].

 4 Ibid at [58].

 5   [2013] FWAFB 1470.

 6 Ibid at [12].

 7   Vivattene v Health Care Australia[2013] FWC 756.

 8   Vivattene v Health Care Australia[2013] FWCFB 2532.

 9   [2011] FWA 538.

 10   Section 381 of the Act.

 11   Ibid.

 12   Attachment B to Dr Trudu’s application.

 13   Statement A to Dr Trudu’s application.

 14   Attachment B to Dr Trudu’s application.

 15   Attachment B to Dr Trudu’s application.

 16   UES (Int’l) Pty Ltd v Leevan Harvey[2012] FWAFB 5241 at [28]-[29].

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