Glenn Banks-Smith v City of Casey

[2016] FWC 5068

[2016] FWC 5068

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Glenn Banks-Smith
v
City of Casey
(U2016/2288)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 27 JULY 2016

Application for relief from unfair dismissal.

[1] Mr Glenn Banks-Smith alleged that the termination of his employment by the City of Casey was unfair.

[2] On 2 June 2016, directions were issued to Mr Banks-Smith to file material in support of his application. That material was due on 20 June 2016. On that day, the ASU advised that it no longer represented Mr Banks-Smith.

[3] Mr Banks-Smith did not comply with the directions and on 24 June 2016 a non-compliance hearing was conducted by telephone. Mr Banks-Smith did not attend the non-compliance hearing and the City of Casey made a section 399A application to have his claim dismissed. Commissioner Wilson waived compliance with the Rules and accepted the City of Casey’s application. Mr Banks-Smith was given until 1 July 2016 to respond to the application.

[4] On 29 June 2016, Mr Banks-Smith contacted the Commission and advised that he had not had access to his emails and that the mobile telephone number he had provided in his application form was no longer available to him. He said he was unaware of the non-compliance hearing and had not received any correspondence. He said that the ASU had been looking after his matter and that they did not advise him of the hearing. Further, he said he had been told that the union’s lawyers were taking over the matter and that they had not contacted him.

[5] On 4 July 2016, I caused a further email to be sent to Mr Banks-Smith. That email noted that the ASU had ceased acting for him on 20 June 2016 and no lawyer was on the record as acting for him. He was provided with a further five days to explain why he did not comply with the directions.

[6] On 8 July 2016, Mr Banks-Smith said, in addition to the problems he was having with his email, the union’s lawyers did not contact him until 6 July 2016. He further said that the ASU did not tell him that it was not supporting him.

[7] The City of Casey responded that they would be surprised if the ASU did not inform Mr Banks-Smith that they were not representing him.

[8] In response to my inquiry, the ASU advised that it notified Mr Banks-Smith by telephone on 20 June 2016 that it would not be acting for him.

[9] Mr Banks-Smith provided additional information on 24 July 2016 which evidenced SMS communication between him and his ASU representative about the matter, including that the union’s lawyers were trying to contact him.

[10] In reply, the City of Casey submitted that, if as alleged by Mr Banks-Smith, his representatives let him down, he should accept the consequences.

Consideration

[11] 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 the Commission. 1

[12] 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 where there is an unreasonable act or omission by the applicant.” 2

[13] The role of case management was discussed by the Full Bench in Ghalloub v Aon Risk Services Australia Limited 3.

[14] 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;



• 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.

[15] 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.

Conclusion

[16] I am satisfied that some but not all of Mr Banks-Smith’s conduct was unreasonable.

[17] I am satisfied that his failure to attend the non-compliance hearing was because he did not receive the notification of the hearing due to his telephone and email difficulties. I accept that Mr Banks-Smith is not without blame in this regard as it was his responsibility to advise the Commission of any changes to his phone number or if he could not be contacted by email.

[18] As far as the directions are concerned, I am satisfied that the ASU was Mr Banks-Smith’s representative until 20 June 2016 which was the date the submissions and evidence were due. That was the date that the ASU advised both Mr Banks-Smith and the Commission that it was no longer acting for him. It is unfortunate that before it made that decision it took no steps to protect Mr Banks-Smith’s position by advising him in good time that it would not represent him or by making an application for an extension of time for Mr Banks-Smith to file material given it would have understood the difficulty facing Mr Banks-Smith in preparing his material.

[19] However from 20 June 2016, Mr Banks-Smith was aware that he needed to file material and while he says he was waiting to be contacted by the union’s lawyers, it was his responsibility to either file the material or seek an extension of time and he did not do so and has still not filed his material. That conduct is unreasonable.

[20] However I am not prepared at this time to dismiss Mr Banks-Smith’s application. I am prepared to give Mr Banks-Smith a further two weeks from the date of this decision to file his material. The City of Casey will have three weeks after that date.

[21] If Mr Banks-Smith does not file any material or if he is not granted a further extension prior to the compliance date then I will accede to the City of Casey’s application and dismiss Mr Banks-Smith’s application without further notice to him.

DEPUTY PRESIDENT

 1 Section 399A of the Fair Work Act 2009

 2   Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161- 163]

 3   PR956665

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