Jason Adam Reddy v Tono Management T/A Tono Payroll
[2022] FWC 1285
•25 MAY 2022
| [2022] FWC 1285 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.526—Stand down
Jason Adam Reddy
v
Tono Management T/A Tono Payroll
(C2022/2241)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 25 MAY 2022 |
Application to deal with a dispute involving stand down – failure to prosecute application – application dismissed.
Mr Jason Reddy has made an application for the Commission to deal with a stand down dispute (Application) pursuant to section 526 of the Fair Work Act 2009 (Cth) (Act).
I have decided to exercise my discretion under s 587(1) of the Act to dismiss the Application for the following reasons.
Mr Reddy has not taken any step to prosecute his Application in the time since it has been with my chambers. Mr Reddy did not attend the conciliation conference, by telephone, on 19 April 2022. When contacted by my Associate he explained that he could not participate as he had a medical certificate. This was followed up by an email from Mr Reddy to my chambers at 4:11pm on 19 April 2022:
“I just received a call about a conference call today I cannot have a mediation with this company as I'm reviewing medical treatment because of their abuse they can pay everyone back the money owed if not you can get the evidence I've given and make them I don't know why I would be called into a mediation when they terminated me without any of this so called mediation I'm can supply doctors certificate in relation to why I can have medication”
The conciliation was adjourned on the basis of Mr Reddy potentially not being in a fit state to participate.
Mr Reddy was requested, by email, to provide the medical certificate to which he referred in order to have the conciliation adjourned. There was no response to this email.
As no medical certificate had been provided, my Associate sent a follow up email to Mr Reddy on 21 April 2022.
On 26 April 2022, a further email was sent from my Chambers in the following terms:
“Dear Mr Reddy
Further to my previous emails to you, we are waiting for you to provide a copy of the medical certificate to which you referred in your email below.
It is important for you to understand that the Fair Work Commission is an employment tribunal. It is not an investigatory agency such as SafeWork NSW or the Fair Work Ombudsman.
The Fair Work Commission does not investigate or prosecute claims on behalf of applicants. The role of the Fair Work Commission, in general, is to try to assist parties to resolve matters by an agreement through a conciliation process (similar to mediation). If conciliation is not successful, then the Fair Work Commission may have the power to determine the application by arbitration, which involves parties filing and serving witness statements, documents and submissions and then a Member of the Fair Work Commission conducting an arbitration hearing (much like a hearing in any court), at which time witnesses are cross examined and a written determination is made.
If you would like to proceed with your application, a time for conciliation, by telephone, will be set for the parties to explore settlement with the assistance of Deputy President Saunders. If the conciliation is unsuccessful, then the Fair Work Commission may have the power (at a later time) to determine your application by arbitration.
If you do not wish to proceed with your application in the Fair Work Commission, please respond by reply email, confirming that you wish to discontinue or withdraw your application. In that event, we would close our file in relation to this matter.
Please let me know by 4pm on 29 April 2022 whether you wish to (a) proceed with your application or (b) discontinue/withdraw your application.”
Later that same day, Mr Reddy provided, by email, the Commission with a copy of a referral letter from his treating doctor to a psychologist dated 14 March 2022. No additional response was received in this email.
Also on 26 April 2022, a further email was sent from my Chambers requesting Mr Reddy provide a response as to whether he wanted to proceed with the application or discontinue/withdraw the application. This email also noted that Mr Reddy could request further time to respond if he was not currently in a fit state to provide a response.
Later that same day, Mr Reddy provided, by email, the Commission with a medical certificate confirming he was unfit for work during the period of 7 March 2022 to 21 March 2022. Mr Reddy did not provide any other information in this email and did not respond as to whether he wished to proceed with or discontinue the Application.
A further email was sent on 26 April 2022 from my Chambers requesting Mr Reddy inform the Commission whether he intended to proceed with or discontinue the Application.
A further email was sent on 2 May 2022 from my Chambers requesting Mr Reddy inform the Commission whether he intended to proceed with or discontinue the Application.
On 10 May 2022, my Associate attempted to contact Mr Reddy by telephone. Whilst Mr Reddy took the call, he did not advise whether he intended to proceed with or discontinue the Application but rather insisted on the Commission investigating the matter.
Following this call, an email in the following terms was sent to Mr Reddy from my Chambers:
“Dear Mr Reddy
As we attempted to discuss with you over the phone today and is set out below, the Fair Work Commission is an employment tribunal. It is not an investigatory agency such as SafeWork NSW or the Fair Work Ombudsman whom you may wish to contact in relation to your claim.
The Fair Work Commission does not investigate or prosecute claims on behalf of applicants. The role of the Fair Work Commission, in general, is to try to assist parties to resolve matters by an agreement through a conciliation process (similar to mediation). If conciliation is not successful, then the Fair Work Commission may have the power to determine the application by arbitration, which involves parties filing and serving witness statements, documents and submissions and then a Member of the Fair Work Commission conducting an arbitration hearing (much like a hearing in any court), at which time witnesses are cross examined and a written determination is made.
If you would like to proceed with your application, a time for conciliation, by telephone, will be set for the parties to explore settlement with the assistance of Deputy President Saunders. If the conciliation is unsuccessful, then the Fair Work Commission may have the power (at a later time) to determine your application by arbitration.
If you do not wish to proceed with your application in the Fair Work Commission, please respond by reply email, confirming that you wish to discontinue or withdraw your application. In that event, we would close our file in relation to this matter.
Please let me know by 4pm on 12 May 2022 whether you wish to (a) proceed with your application or (b) discontinue/withdraw your application.”
There was no response to this correspondence.
On 17 May 2022, the following email was sent from my Chambers to Mr Reddy:
“Dear Mr Reddy
I refer to my earlier emails sent to you on 19 April, 21 April, 26 April and 10 May 2022.
You have not informed the Commission whether you wish to (a) proceed with your application or (b) discontinue/withdraw your application. Nor have you provided the Commission with a medical certificate or any other information to justify an adjournment or further delay in proceeding with your application.
In the circumstances, it seems as though you do not wish to pursue your application in these proceedings in the Commission.
If we do not hear from you by 4pm on 20 May 2022, your application may be dismissed without further notice to you.”
Mr Reddy has not responded to this email or to the various earlier communications from my Chambers. In those circumstances, I am satisfied that it is appropriate to exercise my discretion pursuant to section 587(1) of the Act to dismiss the Application for want of prosecution.
Conclusion
The Application is dismissed.
DEPUTY PRESIDENT
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