Ernest Dobson v Toyota Motor Corporation Australia Limited
[2023] FWC 2501
•3 OCTOBER 2023
| [2023] FWC 2501 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ernest Dobson
v
Toyota Motor Corporation Australia Limited
(U2023/5122)
| COMMISSIONER MIRABELLA | MELBOURNE, 3 OCTOBER 2023 |
Application for an unfair dismissal remedy.
Mr Ernest Dobson has made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy (application).
Mr Dobson alleges he was unfairly dismissed by Toyota Motor Corporation Australia Limited (Toyota). Toyota says Mr Dobson was dismissed for serious misconduct. On 18 January 2023, Mr Dobson told Toyota that his stay in the United Sates of America (USA) needed to be extended by two weeks so that he could care for his wife following her treatment at the Allina Health facility in Minnesota. At Toyota’s request, Mr Dobson produced documents which Toyota claims were fraudulent, and that Mr Dobson was dishonest during the course of their enquiries to determine the authenticity of the documents. Mr Dobson alleges the documents were issued by Dr Lindsay Nutting and Lisa Webster Moore of Allina Health, but Toyota says Allina Health confirmed to them that Lisa Webster Moore is not employed or otherwise engaged by them, Lindsay Nutting is not employed as a doctor by Allina Health, and the documents have not been issued by any person associated with Allina Health.
This matter was allocated to me on 9 August 2023 for case management. I issued directions for the filing and service of submissions and witness statements that same day and conducted a mention/conference in the matter on 11 August 2023. The directions required Mr Dobson to file and serve copies of all witness statements and submissions he would be relying on to support his application by 4:00pm on 25 August 2023. The directions also contained the following note:
“A witness statement is a written statement made by any person who will be giving evidence. In it the person records their knowledge and/or observations about relevant issues or events. At the arbitration, the witness will be asked to confirm the truthfulness of their statement and be subject to cross-examination on it. If you are an applicant and intend to give evidence, you must file a witness statement yourself. Witness statements are to be signed. All documents referred to in the statements are to be attachments and numbered accordingly.”
Mr Dobson did not file his evidence and submissions by the 25 August 2023 deadline. I caused a non-compliance email to be sent to him seeking an explanation for his non-compliance and advising him that failure to do so risked his application being dismissed. On 28 August 2023, Mr Dobson sent an email in reply attaching his submissions and evidence, whilst also stating, amongst other things, that his late submission was due to the difficulty in obtaining information both from his ill wife and her doctor due to time differences between Australia and the USA.
Mr Dobson’s submissions stated the following:
“15. Testifying before the Commission
Carmenia M. Dobson (Wife)
Mrs. Carmenia M. Dobson is willing to testify through a sworn affidavit, sworn deposition and a zoom or other form of communication in the presence of her lawyer before the commission, if she is invited by a written communication
Lindsay Nutting (Allina Health)
Linda Nutting is willing to testify if and when she gets a written consent from Mrs Carmenia M Dobson and a written invitation from the commission and with the advice from Allina Health legal department and her personal lawyer through a sworn affidavit, sworn deposition and Telephone/ zoom/Microsoft team call.”
On 29 August 2023, my chambers sent an email to Mr Dobson stating, amongst other things, that he had been directed to provide copies of all witness statements he would be relying on to support his application and that this means parties must file witness statements for each person they intend to call to give evidence.
On 30 August 2023, Mr Dobson replied with the following:
“Reference to your letter dated August 2023, I have communicated the request of the commission to Mrs. Carmenia M. Dobson regarding a witness statement from her and her doctor respectively , as I had mentioned before they are willing to give a witness statement individually , however, due to the intricacy of the matter at hand and the fact that the two letters previously send from the hospital that TMCA is contesting , Mrs. Dobson and her doctor respectively is asking that I forward a request from the Fairwork commission asking that they( Mrs. Carmenia N Dobson and her doctor respectively make witness statements , she said according to her legal counsel she will then make an affidavit that would be witnessed and seal by a notary public in the State of Minnesota , the United States of America to send to the fairwork commission in Victoria , Australia . additionally she said her doctor require this letter(Letter of request) mentioned above from the Fairwork Commission requesting the doctor to make a witness statement as regards to the doctor certificate she has provided , she will then present such letter to the hospital legal department in order to advised her on her witness statement . hope the commission can make those letters available as soon as possible .”
I caused an email to be sent to Mr Dobson in reply on 31 August 2023 which stated, amongst other things, that it was not the Commission requiring the attendance of his witnesses and that it was his responsibility to file any evidence upon which he seeks to rely. The email advised that where witnesses are not available for cross-examination, the weight of their evidence will be dealt with accordingly.
On 1 September 2023, Mr Dobson replied with the following email:
“Thanks for your email , I will send through the remaining appendixes , regarding my witnesses availability , they are willing to testify as I have mentioned , however, the judiciary processes and systems in the United States of America especially the State of Minnsota is very careful and very procedural and as such require processes. Hope you considered that evidences to decide this matter heavily depends on actors( people and institutions )in the United States of America precisely Minnesota , upon consultation and advised with counsel and the witnesses, I am requesting till the 15 September 2023 to provide the requested information to the commission .”
On 1 September 2023, the directions were amended to allow Mr Dobson until 8 September 2023 to provide the remainder of his materials. To date, Mr Dobson has not filed any further materials.
On 19 September 2023, Toyota filed a Form F52 application requesting the Commission make an order requiring Mr Dobson to produce various documents to the Commission. I made the order that same day, requiring Mr Dobson to provide by 4:00pm on 22 September 2023 the following documents:
“1. A copy of the Applicant's original flight itinerary issued by United Airlines in respect of the Applicant’s travel between Melbourne and Minneapolis, departing on 19 December 2022 and returning in January 2023, including any cover email containing a link to, or attaching, that itinerary;
2. A copy of the Applicant’s amended flight itinerary, showing a revised return date on or about 30 January 2023, including any cover email containing a link to, or attaching, that itinerary; and
3. Copies of all correspondence exchanged between the Applicant and United Airlines on or after 1 February 2023, in regards to the flights referenced in Orders 1 and 2.”
Mr Dobson did not provide these documents to the Commission by the deadline, so on 22 September 2023, I caused an email to be sent to him which requested an explanation for his non-compliance by 4:00pm on 25 September 2023 and advised that if no response is received from him, the application may be dismissed without further notice to him.
Mr Dobson did not provide a response by the deadline, so my chambers sent him another email in the late afternoon of 25 September 2023 which required him to provide an explanation for his non-compliance with the order by midday on 26 September 2023 and noted that a failure to provide an explanation by the deadline risked his application being dismissed.
On the evening of 25 September 2023, Mr Dobson sent the following email to chambers:
“Thanks for your email dated September 22, 2023, reference to the commission request for witness statement and final submission,I have ealier indicated that my witesses, i had mentioned to the Fairwork commission are in the United States of America and they are willing to produce statement to the effect of the documents( Doctor Certificate) they have provided me to satisfied the work place agreement (WPA)clauses regarding carer leave at TMCA, However, Due to the intricacy of the legal system of the United States , my witesses had to go through series of consultations to undestand how the legal system work in the commonwealth of Australia as well acquaint themselves with every other issues that comes with giving witness statement overseas as citizen of the United States and employee of Allina Health, especially i am not a direct client of the hospital rather my wife . inadditional, every other evidences that is require will be made available as require by law.
I have been assured by my witnesses that all legal barriers has been cleared and statement from my wife and her doctor will be made availble by 2nd octocber 2023. as well , they are willing to be crossed- examine in the presence of their lawayers if the need be through zoom or other digital means . Also my final submission will also be made avalible by set date.”
My chambers responded that same day, stating that his email did not address any of the issues in the order to produce and advising he needs to provide a response to the order and an explanation for why he has not complied with the order. The email further advised Mr Dobson that an explanation for his failure to comply with the order was due at midday the following day and that a failure to provide an explanation risked his application being dismissed.
Mr Dobson failed to provide an explanation by the deadline.
On 27 September 2023, Toyota filed an application under sections 399A and 587 of the Act for dismissal of Mr Dobson’s application, supported by an affidavit of Ms Stephanie Carter, Senior Workplace Relations Advisor for Toyota. That same day, my chambers forwarded the application and affidavit to Mr Dobson and requested that he provide a response to the application by 4:00pm on 28 September 2023. The email also stated:
“If we do not receive a response from you by the deadline, the Respondent’s application may be determined without any further notice to you.”
Mr Dobson failed to provide an explanation by the deadline and has not engaged with the Commission since his email to chambers on 25 September 2023.
Toyota’s submissions
Section 399A
Toyota submits Mr Dobson’s application should be dismissed pursuant to s.399A because he has failed to comply with multiple directions and orders of the Commission. They allege his behaviour is unreasonable, and otherwise warrants dismissal, because:
· It has been repeated;
· This is not a case where Mr Dobson failed to receive communications from the Commission. Toyota submits the Commission’s communications have been ignored with no explanation provided by Mr Dobson for his behaviour. Toyota submits that such behaviour reflects a general lack of respect for the Commission and the Commissioner’s intended programming of his application;
· Mr Dobson has been on notice of the risk of his application being dismissed for several weeks;
· Mr Dobson’s behaviour occurred against the background of a broader failure to acknowledge or respond to the directions amended on 1 September 2023 and his failure to provide an explanation for why no further materials were submitted by him despite his earlier correspondence with the Commission suggesting that such materials were forthcoming. Toyota submits this has caused them unnecessary delay and uncertainty; and
· It is difficult to see how Mr Dobson’s application will be successful even if the materials foreshadowed in his email dated 25 September 2023 are filed, noting their submissions made with respect to s.587 outlined below.
Section 587
Toyota submits that in the alternative, Mr Dobson’s application should be dismissed under s.587(1) of the Act on the basis that the application is frivolous or vexatious or has no reasonable prospects of success.
Toyota supports this contention with the following submissions:
· Mr Dobson’s case appears to focus on the question of whether or not the medical information he supplied to Toyota was sufficient to meet the requirements of clause 37 of the Toyota Motor Corporation Australia (TMCA) Toyota Parts Centre (TPC) Agreement 2021 (the Agreement) and Toyota submits those matters are irrelevant to Toyota’s decision to dismiss Mr Dobson;
· Toyota’s case is that it dismissed Mr Dobson for supplying inauthentic material to them in support of his application for carer’s leave and was otherwise dishonest in responding to their enquiries regarding the authenticity of the material;
· Toyota had a sound and defensible basis for concluding that the documents supplied were not authentic, and although Mr Dobson maintains the authenticity of those documents, he has taken no steps available to him to establish their authenticity;
· It would appear that Mr Dobson intended to file the following evidence on 2 October 2023, which they submit again appears to be directed at whether or not the documentation supplied by Mr Dobson was sufficient to satisfy the evidentiary requirements at clause 37 of the Agreement, pointing to his email of 25 September 2023:
“I have ealier indicated that my witnesses … are willing to produce statement to the effect of the documents( Doctor Certificate) they have provided me to satisfied the work place agreement (WPA)clauses regarding carer leave at TMCA…”; and
· This evidence would not establish the authenticity of the documentation produced by Mr Dobson and in the absence of same, his application is manifestly groundless and has no reasonable prospects of success.
Consideration
Section 399A of the Act provides the following:
“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
(c) failed to discontinue the application after a settlement agreement has been concluded.
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.”
Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.
Mr Dobson has not filed any material in opposition to the application to dismiss. I will determine the application on the papers.
The power to dismiss an application if the non-compliance was unreasonable is discretionary.
Mr Dobson was given numerous opportunities to file witness statements on which he seeks to rely but to date, he has not filed any witness statements.
Mr Dobson has not complied with the order to produce, nor has he provided an explanation as to why he failed to do so.
Mr Dobson was required to respond to Toyota’s application under sections 399A and 587. He has failed to do so.
In spite of numerous opportunities to file witness statements and Mr Dobson’s additional commitment to do so, he has failed to file any witness statements. He has also not complied with the order to produce, nor has he provided any explanation for his failure to comply. In these circumstances, I am satisfied that Mr Dobson unreasonably failed to comply with directions and the order to produce and I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Mr Dobson’s application. Accordingly, I do not need to consider the alternate submission by Toyota for dismissal of the application under s.587(1).
An order giving effect to this decision will be issued shortly.
COMMISSIONER
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