Garcia v A.P.S. Group
[2016] FWC 2192
•12 April 2016
[2016] FWC 2192
DECISION
| Fair Work Act 2009 | |
| s.394—Unfair dismissal | |
| Matthew Garcia | |
| v | |
| A.P.S. Group | |
| (U2015/17076) | |
| DEPUTY PRESIDENT GOOLEY | MELBOURNE, 12 APRIL 2016 |
| Application for relief from unfair dismissal. |
[1] On 23 December 2015, Mr Matthew Garcia made an application for remedy for unfair
dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Garcia’s employment
had been terminated by A.P.S. Group on 2 December 2015.
[2] The matter was listed for conciliation on 17 February 2016 however it could not take
place. Consequently, directions were issued and the matter was listed for hearing.
[3] Mr Garcia was directed to file an outline of submissions, any witness statements and
other documentary material he wished to rely on by noon, on 15 March 2016.
[4] Mr Garcia hand delivered letters from the Accident Compensation Conciliation
Service and other documents relating to his capacity to work on 15 March 2016.
[5] Mr Garcia did not file submissions and a witness statement and as such, the matter was
listed for a non compliance hearing before Commissioner Wilson on 18 March 2016.
[6] Mr Garcia did not attend the non compliance hearing. A.P.S. made an oral application,
pursuant to s.399A of the Act, that the matter be dismissed as Mr Garcia had failed to comply
with the direction of the Fair Work Commission. Commissioner Wilson waived compliance
with the Fair Work Commission Rules 2013 and accepted A.P.S.’ oral application.
[7] Mr Garcia was sent correspondence informing him of A.P.S’ section 399A
application. Mr Garcia was directed to file submissions and other documentary material in
respect of A.P.S.’ application by close of business, on 28 March 2016. Mr Garcia was advised
that if he failed to comply with this direction, his application would be dismissed.
[8] On 18 March 2016, the Commission contacted Mr Garcia by telephone and advised
him of the correspondence and the oral application made by A.P.S. Mr Garcia indicated
during that telephone conversation that he filed his documents he wished to rely on in the
Commission on 15 March 2016. Mr Garcia was asked to respond to the Commission’s
correspondence.
[2016] FWC 2192
[9] On 24 March 2016, the Commission received a response from Mr Garcia which
th
| confirmed that he “handed [his] documents in to your office on Tuesday, 15 | March at |
11am…a member of your staff photocopied all my documents and stamped them. I was told
that all my documents will go straight to his desk.”
[10] On 5 April 2016, the Commission contacted Mr Garcia. He confirmed that these
documents were all he intends to rely on as submissions along with his Form F2.
[11] A.P.S. was provided with an opportunity to respond to Mr Garcia’s correspondence of
24 March 2016. In its response, A.P.S. reaffirms that Mr Garcia’s application should be
dismissed as he failed to file submissions and witness statements in accordance with the
Commission’s direction. It says that the Commission, on its own initiative listed the matter for
a non compliance hearing. Further, in relation to the documents filed by Mr Garcia on 15
March 2016, A.P.S. says they bear no relevance to the Applicant’s non compliance with the
Commission’s direction and he has failed to provide a reason for his non compliance.
[12] A.P.S. also argues that the documents filed by Mr Garcia on 15 March 2016 were not
provided to the Respondent or its representative. It says that to date, Mr Garcia has not
prepared witness statements or submissions supporting his claim.
Conclusion
[13] On application by an employer, the Commission has the discretion to dismiss an unfair
dismissal application because there has been unreasonable non compliance with directions of
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the Commission.
[14] The Explanatory Memorandum said that the intention of this provision was “to address
the small proportion of applicants who may pursue claims in an improper and unreasonable
manner. ....In particular, the power to dismiss an application is only intended to be available
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where there is an unreasonable act or omission by the applicant.”
[15] The role of case management was discussed by the Full Bench in Ghalloub v Aon Risk
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| Services Australia Limited | . |
[16] In summary, that decision said:
| | the starting point of any consideration an application to dismiss is that an applicant is |
| entitled to have his or her case heard; | |
| | directions play an important role in case management; |
| | accepting the importance of case management principles, only in extreme |
| circumstances should a party be shut out from litigating an issue which is fairly | |
| arguable; | |
| | the circumstances of each case is central; |
[2016] FWC 2192
| | a history of non compliance with directions indicating an inability or an unwillingness |
| to have the matter ready for trial within an acceptable period of time is relevant | |
| | continuing non compliance which causes unnecessary delay, expense or prejudice to |
| the other party is relevant. |
[17] While not an exhaustive lists of matters that may be considered, I will adopt the
approach of the Full Bench in this matter in deciding whether to exercise my discretion to
dismiss the application.
[18] I am not satisfied that Mr Garcia has unreasonably failed to comply with a direction of
the Commission. He filed the material he wished to rely on for his unfair dismissal application
on the date that they were required. Despite Mr Garcia’s material not being in a traditional
format of a submission or witness statement, I am of the view that Mr Garcia’s matter can still
proceed to a formal proceeding for determination as originally listed, on 6 May 2015.
[19] In these circumstances, I will dismiss A.P.S.’s section 399A application. An order
giving effect to this decision will be issued today.
DEPUTY PRESIDENT
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1
S.399A of the Fair Work Act 2009
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Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161-163]
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PR 956665
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