Ian Hibberson v Services Australia

[2024] FWC 1330

[2024] FWC 1330

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ian Hibberson
v

Services Australia

(U2023/10328)

DEPUTY PRESIDENT SLEVIN SYDNEY, 21 MAY 2024

Application for an unfair dismissal remedy – s.399A application to dismiss.

1. Mr Ian Hibberson has applied for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (the Act). Mr Hibberson alleges that he was unfairly dismissed from his employment with the Commonwealth of Australia working in Services Australia (Services Australia).

1. Services Australia makes application pursuant to s. 399A of the Act that Mr Hibberson’s unfair dismissal application be dismissed because Mr Hibberson unreasonably:

a)   failed to attend a hearing set down to determine the application on 8 and 9 February 2024.

b)   failed to attend a determinative conference on 10 May 2024.

c)   failed to comply with directions relating to the application.

1. Services Australia also makes application pursuant to s. 587(1)(c) that Mr Hibberson’s unfair dismissal application be dismissed on the basis that the application has no reasonable prospects of success.

Background 

1. Mr Hibberson filed his unfair dismissal application on 20 October 2023. On 6 December 2023, directions were issued that Mr Hibberson to file and serve witness statements, documents, and submissions in support of his application by 15 January 2024. Services Australia was required to file and serve its witness statements, documents, and submissions by 22 January 2024. Mr Hibberson was required to file and serve any submissions and witness statements in reply by 29 January 2024.

1. On 15 January 2024, Mr Hibberson filed and served various materials. Those materials did not include a witness statement or an outline of submissions. Services Australia filed its material in accordance with the directions. On 25 January 2024, Mr Hibberson sent an email to the Commission requesting an extension of time to file his submissions and witness statements in reply. The directions made on 6 December 2023 were amended to require Mr Hibberson to file and serve submissions in reply by close of business on 2 February 2024.

1. On 29 January 2024, Mr Hibberson sent a further email requesting an adjournment of the hearing to enable him to seek legal representation. Mr Hibberson requested that the hearing be listed in mid-March 2024 as he was unavailable before 10 March 2024. Services Australia did not object to this request. The hearing was adjourned to 20 and 21 March 2024 with the matter listed for a case management conference at 10.00 am on 16 February 2024.

1. Mr Hibberson failed to file and serve submissions in reply by close of business on 2 February 2024 in accordance with the amended directions. Nor did Mr Hibberson attend the case management conference on 16 February 2024 at the listed time of 10.00 am. Mr Hibberson only joined after he was contacted by the Commission. The hearing remained listed for 20 and 21 March 2024.

1. At 9:29 am on 20 March 2024, Mr Hibberson emailed the Commission stating that he would not attend the hearing which was scheduled for 10.00am that day and requested a further adjournment. Mr Hibberson cited medical reasons and IT issues as to why he could not attend the scheduled hearing. He did not provide any evidence beyond his assertion in the email that these matters prevented him from attending. Mr Hibberson did not attend the hearing.

1. The hearing on 20 and 21 March 2024, was vacated, and re-scheduled for a determinative conference at 10.00 am on 10 May 2024. Mr Hibberson was directed to inform Services Australia and the Commission if he required any of Services Australia’s witnesses to attend the conference by close of business on 26 April 2024.

1. Mr Hibberson failed to comply with the direction to inform Services Australia and the Commission if he required Service Australia’s witnesses for cross examination by close of business on 26 April 2024.

1. On 2 May 2024 Services Australia filed the current application to have the matter dismissed.

1. On 6 May 2024 Mr Hibberson again requested that the matter be adjourned for a further period of at least 4 weeks. His reason for making the request was that he was again having IT issues and would be unable to attend by video conference. His request was denied, and the matter remained listed for 10 May 2024. Mr Hibberson was informed that if he failed to attend the Commission would hear Services Australia’s application to dismiss his unfair dismissal application in his absence.

1. Mr Hibberson failed to attend the determinative conference on 10 May 2024, and, in his absence, Services Australia moved on the current application to have the proceedings dismissed.

Consideration

1. Section 399A gives the Commission a discretion to dismiss an application for an unfair dismissal remedy if satisfied that an applicant has unreasonably failed to attend a conference or hearing in relation to the application or has failed to comply with a direction or order of the Commission relating to the application.

1. I consider that Mr Hibberson’s multiple failures to attend hearings and conferences in March and May 2024, and to comply with directions to file reply material and inform Services Australia which witnesses were required for cross examination were both separately and taken together unreasonable. Consequently, I have a discretion to dismiss the application. I intend to exercise that discretion because Mr Hibberson’s repeated failures to attend and comply with directions suggests that he has no intention to prosecute his application despite being given every opportunity to do so.

1. Having decided to dismiss the application pursuant to s. 399A there is no need to consider Services Australia’s application under s. 587.

1. Mr Hibberson’s application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR775201>