Francis Gnanaseelan v Origin Energy Limited T/A Origin Energy
[2018] FWC 873
•8 FEBRUARY 2018
| [2018] FWC 873 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Francis Gnanaseelan
v
Origin Energy Limited T/A Origin Energy
(U2017/11849)
| Commissioner Bissett | DARWIN , 8 FEBRUARY 2018 |
Application for an unfair dismissal remedy – s.399A application to dismiss – application granted.
Mr Francis Gnanaseelan was dismissed from his employment with Origin Energy Limited T/A Origin Energy (Origin Energy) on 17 October 2017. He made an application to the Fair Work Commission (Commission) seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act) on 2 November 2017.
A conciliation conference was held on 1 December 2017 and Mr Gnanaseelan was dialled into the conciliation conference. Early in the conference Mr Gnanaseelan’s telephone line dropped out. The conciliator sent him an email at the time advising of him of this and that attempts to call him again were unsuccessful. A further email was sent to Mr Gnanaseelan the same day which said:
Further to my earlier email, can you please confirm that you wish to continue with your unfair dismissal claim. If so, can you please provide me with your availability for a second attempt at conciliation.
In the event that we do not here from you further, the matter may be listed at the Commission’s, directly for arbitration. This would be an attendance hearing here at 11 Exhibition Street.
There is no evidence that Mr Gnanaseelan responded to either email.
Given the lack of response from Mr Gnanaseelan with respect to re-scheduling the conciliation directions were issued on 11 December 2017 for arbitration of the application. These direction required Mr Gnanaseelan to file and serve his materials is support of his application by noon on Thursday 21 December 2017.
On 19 December 2017 an SMS was sent to Mr Gnanaseelan reminding him that his submissions were due on 21 December 2017. No submissions were received from him by the due date.
On 22 December 2017 an email was sent to Mr Gnanaseelan advising that his submissions and related material were overdue and requesting that he either file his submissions or make a formal request for an extension of time within which to do so.
On 5 January 2018 a further email was sent to Mr Gnanaseelan noting that he had failed to file his submissions by the due date and requesting that he urgently file his submissions or request an extension of time within which to do so. He was advised that if no extension request was made, or no submissions received, by noon on 9 January 2018 his application may be listed for a non-compliance hearing.
An attempt to contact Mr Gnanaseelan by phone on 5 January 2018 was unsuccessful with a message that the phone number had been disconnected.
On 8 January 2018 a letter was sent to Mr Gnanaseelan’s home address via Express Post conveying the information contained in the email of 5 January 2018 to him.
No response was received from Mr Gnanaseelan to any of the communications from the Commission. For this reason the matter was listed for a non-compliance hearing before Commissioner Wilson on 12 January 2018. Mr Gnanaseelan did not attend the non-compliance hearing.
At the non-compliance hearing Origin Energy made an application that Mr Gnanaseelan’s application be dismissed pursuant to s.399A of the FW Act. A letter was sent to Mr Gnanaseelan on 12 January 2018 by post and email seeking submissions from him by 19 January 2018 as to why the Commission should not dismiss his application pursuant to s.399A of the FW Act.
On 13 January 2018 the Commission received an email from Mr Gnanaseelan which said:
Hi there,
I am currently in overseas helping blind
orphan children teaching English.
I am staying in remote villages.
I don't have access to electricity,
telephone, or Internet. I am sorry I was
able deal this unfair dismissal case.
I will be returning to Australia in on the
28/01/2018.
I apologise for any inconvenience
please make anther date so I can put
forward my case.
Regards Francis (sic)
The submission of Mr Gnanaseelan was forwarded to Origin Energy on 16 January 2018. The covering letter, also sent to Mr Gnanaseelan, invited Origin Energy to make any submissions in reply by 23 January 2018. Mr Gnanaseelan was advised he could make any submissions in reply to anything from Origin Energy by 30 January 2018.
Origin Energy filed submissions by the due date in which it said:
·The Applicant provided no documentary evidence of the matters stated in the email of 13 January 2018;
·Even if the Applicant did have documentary evidence he was aware he was involved in Commission proceedings and he had, at no time prior to the 13 January 2018 email, raised any issues with his ability to engage in those proceedings or otherwise comply with the directions of the Commission;
·The obligation is on an Applicant to raise issues relating to his or her ability to comply with the directions issued or to inform himself of what action he needed to take in relation to the directions of the Commission;
·The Applicant’s decision to travel overseas is not a reasonable basis for non-compliance. He made the application and provided a means by which the Commission should communicate with him. His failure to keep abreast of the progress of his application is not a reason for non-compliance.
For these reasons Origin Energy says the application should be dismissed.
No further submissions were received from Mr Gnanaseelan in accordance with the correspondence of 16 January 2018.
Conclusion
I am satisfied that the application of Mr Gnanaseelan should be dismissed pursuant to s.399A of the FW Act.
Mr Gnanaseelan has had a substantial number of opportunities to engage with the Commission with respect to his application. He has not done so. The Commission has made attempts to contact Mr Gnanaseelan by phone, by email and to his postal address. The only correspondence from Mr Gnanaseelan has been to the first letter with respect to the application made to dismiss his application pursuant to s.399A.
Whilst Mr Gnanaseelan indicated in this correspondence (on 13 January 2018) that he wished have another date set so he could “put forward [his] case” he has failed to provide any submissions in reply to those of the Origin Energy. Further, he has made no contact with the Commission following 28 January 2018 when he said he would be returning to Australia.
Mr Gnanaseelan’s reasons for non-compliance or dismissal of the s.399A application are not satisfactory. Had it been his intention to be out of the country and not reasonably contactable following the time of making his application the obligation was upon him to seek an adjournment of his application. He did not do so. It is not reasonable to make an application to the Commission and consider that it can be held in abeyance for no good reason until the applicant is ready to deal with it. Such an approach is an anathema to the requirement that applications of this sought be dealt with in a quick, flexible and informal manner (s.381(b)(i)). A failure to engage in proceedings should not be confused with flexibility and informality. Both an applicant and respondent have a right to have an unfair dismissal matter dealt with expeditiously. Mr Gnanaseelan’s approach to his application has not allowed this to occur.
In all of the circumstances I am satisfied that Mr Gnanaseelan has unreasonably failed to comply with directions with respect to his application. There is no indication from Mr Gnanaseelan that he intends to pursue his application.
For these reasons Mr Gnanaseelan’s application is dismissed. An order[1] to this effect will be issued with this decision.
COMMISSIONER
<PR600274>
[1] PR600276.
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