Jason Kogelman v Yarra Trams

[2013] FWC 4161

[2013] FWC 4161

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Kogelman
v
Yarra Trams
(U2012/16974)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 26 JUNE 2013

Application for Relief from Unfair Dismissal Dismissed - Respondent Objection - Frivolous or Vexatious - No Reasonable Prospects of Success.

[1] On 19 December 2012, an application for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act) was lodged by Mr Jason Kogelman (the Applicant). The Applicant’s employment was terminated by Yarra Trams (the Respondent) on 13 December 2012.

[2] The matter was the subject of conciliation on 1 February 2013, however was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] The Applicant was directed to file in the Commission and serve submissions, witness statements and other documentary material he wished to rely on by 25 March 2013.

[4] The Applicant failed to comply with these directions. The matter proceeded to a non compliance hearing on 27 March 2013 to deal with his failure to comply with directions.

[5] At the non compliance hearing, the Commission attempted unsuccessfully to contact the Applicant. Commissioner Jones sent correspondence to the Applicant which directed the Applicant to provide an explanation, within seven days, as to the Applicant’s failure to file material and attend the hearing.

[6] A file note dated 28 March 2012, confirms that a Member of the Unfair Dismissal Case Management Team spoke with the Applicant who advised that he had been overseas. During the course of this conversation, the Applicant advised that he will send via email an extension of filing request in addition to proof of his absence.

[7] On 4 April 2013, correspondence outlining Commissioner Jones’s decision of 27 March 2013 was sent to the Applicant.

[8] On 11 April 2013, the Commission received correspondence from the Applicant; however that correspondence was non-responsive to the matters raised by Commissioner Jones.

[9] On 19 April 2013, the Respondent filed an Objection to Application for Unfair Dismissal Remedy. The Respondent sought to have the application dismissed pursuant to s.399A of the Act.

[10] In light of the Respondent’s objection and the Applicant’s email dated 11 April 2013, a further Mention was held on 1 May 2013.

[11] On 30 April 2013, the Respondent by way of a letter amended its Objection and sought to have the matter dismissed pursuant to s.587 of the Act.

[12] Prior to the Mention hearing, the Commission received an email from the Applicant in which he advised that if required he could provide medical certificates to explain his non compliance.

[13] In response to this email, the Applicant was directed to provide medical certificates to the Commission.

[14] On 1 May 2013, the Applicant did not attend the Mention and the Commission was unable to contact the Applicant by telephone.

[15] Following the Mention, the Respondent filed an amended Objection on 1 May 2013 which provided that it wished to have the matter dismissed pursuant to s.587(1)(b) and (c) of the Act.

[16] On receipt of this application, the Commission listed the matter for a Jurisdictional Hearing on 28 June 2013 to hear and determine the Respondent’s application to dismiss the unfair dismissal claim on the grounds that:

(a) it was frivolous or vexatious; or

(b) that it had no reasonable prospect of success.

[17] Directions were issued to the Applicant to file and serve any material he wished to file in respect of the Respondent’s Objection by 23 May 2013.

[18] On 17 May 2013, a further email was sent to the Applicant directing him to file medical certificates by close of business, 22 May 2013.

[19] On 22 May 2013, the Respondent filed in the Commission its submissions, a sworn witness statement and documentary material. That material was served on the Applicant.

[20] On 28 May 2013, a further Direction was issued which required the Applicant to file submissions and evidence in response to the Respondent’s application to dismiss.

[21] In addition, the Applicant was advised that if he failed to comply with the directions by close of business, 12 June 2013, the matter would be determined on the papers.

[22] The Commission did not receive any further correspondence or advice from the Applicant in respect to this matter.

[23] Section 587 of the Act provides as follows:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[24] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[25] Section 397 of the Act provides that the Commission must hold a conference or a hearing if there are contested facts. Given the Applicant has not filed any material in opposition to the application to dismiss or in support of his unfair dismissal application it cannot be said that there are contested facts and consequently I decided to determine the matter on the papers.

[26] The Respondent provided a chronology of events that led to the Applicant’s dismissal. The Respondent dismissed the Applicant for serious and wilful misconduct. It was alleged that the Applicant had engaged in violent, threatening and intimidating behaviour towards a fellow employee. That employee made a sworn statement to the police. The Respondent held a meeting with the Applicant who had his union representative with him. The allegations were put to the Applicant. The Respondent submitted that the Applicant denied the allegations but those denials were not accepted and the Respondent decided to terminate the Applicant’s employment.

[27] I have had particular regard to the uncontested sworn statement of the employee to whom the threatening comments were directed. The Applicant has not filed a statement denying these allegations. Further the Applicant did not file a statement contesting the submissions from the Respondent about the process it followed. On the basis of the uncontested material available to me, I find that the application has no reasonable prospects of success.

[28] The Applicant’s application is dismissed pursuant to s.587(1)(c) of the Act as it has no reasonable prospects of success. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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