John Mahoney v Ossa Services Pty Ltd

[2016] FWC 2783

[2016] FWC 2783

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Mahoney
v
OSSA Services Pty Ltd
(U2016/4776)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 4 MAY 2016

Application for relief from unfair dismissal.

[1] On 22 February 2016, Mr John Mahoney made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Mahoney says his employment was terminated by OSSA Services Pty Ltd on 2 February 2016.

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

[3] Mr Mahoney was directed to file an outline of submissions, witness statements and other documentary material he wished to rely on by noon, on 11 April 2016.

[4] Mr Mahoney requested an extension to file his submissions. A further period of time was granted on 18 April 2016 and Mr Mahoney was now required to file his material by noon 26 April 2016.

[5] On the same day, OSSA made an application, pursuant to s.399A of the Act to have Mr Mahoney’s application dismissed for failure to comply with the Commission’s directions issued on 21 March 2016, in addition to failure to attend the conciliation conference.

[6] On 20 April 2016, Mr Mahoney was sent correspondence informing him of OSSA’s section 399A application. Mr Mahoney was directed to file submissions and other documentary material in respect of OSSA’s application by noon, on 2 May 2016. He was advised that if he failed to comply with this direction, his application would be dismissed.

[7] On 22 April 2016, Mr Mahoney advised the Commission of who he wanted as witnesses to support his case and outlined that he wanted to rely on paperwork from WorkSafe. Further, on 26 April 2016, the Commission received additional advice from Mr Mahoney that he wanted to rely on his original documentation filed in the matter.

Conclusion

[8] 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

[9] 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

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

[11] 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.

[12] 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.

[13] I am not satisfied that Mr Mahoney has unreasonably failed to comply with a direction of the Commission. Even if I had found his non-compliance to be unreasonable I would not, in my discretion, have dismissed this matter. Mr Mahoney has not indicated an unwillingness to have her matter ready for hearing. He has now filed his material that he wishes to rely on. In these circumstances, I will dismiss OSSA’s section 399A application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

<Price code A, PR579978>

 1 S.399A of the Fair Work Act 2009.

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

 3   PR 956665.

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