Kevin Snowden v Toyota Material Handling (WA) Pty Ltd

[2012] FWA 3258

[2012] FWA 3258

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kevin Snowden
v
Toyota Material Handling (WA) Pty Ltd
(U2011/12433)

COMMISSIONER WILLIAMS PERTH, 18 APRIL 2012

s.394 - Application for unfair dismissal remedy.

[1] This matter involves an application made by Kevin Snowden (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in October 2011. The respondent is Toyota Material Handling (WA) Pty Ltd (the Respondent).

[2] The application that was the subject of a conference with a Fair Work Australia Conciliator however it was not resolved and so it has been referred to myself for determination.

[3] In early December 2011 I wrote to the Applicant advising that the matter would be listed for a formal determinative proceeding and explaining the procedure involved. The letter requested that the Applicant advise whether he wished to proceed with that hearing or to discontinue the application. At that time the Applicant was represented by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the AMWU).

[4] In response to this correspondence the AMWU on behalf of the Applicant advised that he did wish to proceed with his application to a determinative proceeding.

[5] In mid-December 2011 the parties were requested to provide information with respect to objections raised by the Respondent that the application had been made out of time.

[6] In response the Respondent advised that they were withdrawing this objection.

[7] Consequently on 21 December 2011 the parties were provided with a notice of listing for a hearing. This was sent directly to the Applicant by post and to the AMWU and his lawyers, both by e-mail.

[8] The attached directions explained that the Applicant was required to provide written statements of evidence and an outline of submissions by 1 March 2012.

[9] No materials were received from the Applicant or his representatives on that date.

[10] The following day the Applicant's lawyers advised that they were in discussions with the Respondent and requested an extension of time for filing the Applicant's materials.

[11] On 14 March 2012 the Applicant's lawyers and the AMWU advised that they were no longer representing the Applicant.

[12] Consequently the same day my associate rang the Applicant to clarify the situation. The Applicant advised he still wished to continue with his application. The Applicant advised he did not have an e-mail address but that he could be contacted by post and phone. My associate provided him with the address of the Fair Work Australia office and the Applicant confirmed he knew where that was.

[13] He was advised that his evidence and submissions were now two weeks overdue and that a further eight days would be allowed for him to provide that material.

[14] The following day on 15 March 2012 I wrote to the Applicant confirming that his witness statement and outline of submissions were overdue and these were now required by 22 March 2012.

[15] On 21 March 2012 the Applicant attended at the Perth Fair Work Australia Registry and provided a bundle of documents. The documents have a covering letter which is addressed to the Applicant from his lawyers advising that enclosed were all the papers relating to his application. The lawyer's correspondence explained that he would now need to file any written statements of evidence and submissions in support of his claim. The letter also includes an assessment of the Applicant's claim. Attached to that letter are up a series of documents the majority of which is correspondence between the parties and my chambers including copies of the original application and materials filed by the Respondent in reply.

[16] These documents do not include any witness statements nor an outline of submissions nor any materials that could be interpreted as an attempt by the Applicant to meet the directions to provide these materials.

[17] Accordingly on 23 March 2012 a notice of listing for a directions hearing to be held on 2 April 2012 was posted to the Applicant. The notice of listing advised that the Applicant was directed to attend Fair Work Australia at the time mentioned for a directions hearing to clarify what his wishes were with respect to his application.

[18] At the time and date included on the notice of listing there was no appearance from the Applicant.

[19] Finally having become aware that the address that the Applicant's lawyers had used to contact the Applicant was different from the address the Applicant had provided to Fair Work Australia, out of an abundance of caution, I undertook to write a final letter to the Applicant at both addresses. That letter explained that the Applicant had not attended the directions hearing and on a number of occasions had failed to provide his materials as directed and that without this information his application could not proceed further.

[20] That letter directed the Applicant to provide his witness statement and a written outline of submissions by 12 April 2012 and advised that a failure to comply with this direction would be taken as meaning that he wished to discontinue his application and his file would then be closed and there would be no further proceedings.

[21] As at the date of this decision nothing has been received from the Applicant nor has there been any contact from him.

The legislation

[22] Section 577 obliges Fair Work Australia to perform its functions and exercise its powers in a manner that is fair, just and is quick, informal and avoids unnecessary technicalities and is open and transparent and promotes harmonious and cooperative workplace relations.

[23] Further section 578 relevantly requires that in performing functions or exercising powers in relation to a matter Fair Work Australia must take into account the Objects of the relevant Part of the Act.

[24] A section 394 application falls under Part 3-2 Unfair Dismissal of the Act.

[25] The Objects of Part 3-2 Unfair Dismissal are prescribed in section 381. These Objects include the establishment of procedures dealing with unfair dismissal that are quick, flexible and informal and address the needs of employers and employees and involve procedures and remedies that ensure a “fair go all around” is accorded to both the employer and employee concerned.

[26] Section 587(3) empowers Fair Work Australia to dismiss an application on its own initiative.

Decision

[27] In this case the Applicant has repeatedly failed to comply with the directions to provide a statement of evidence and an outline of submissions. Without these it is not possible for the Respondent to prepare a case in reply.

[28] The Applicant is unable or unwilling to provide the materials required of him. The Applicant has been on notice as to the consequence of further non compliance.

[29] The Respondent employer is entitled to a fair go including having the claim made against them particularised so that they may properly respond and prepare themselves and they are entitled to have the application made against them determined within a reasonable time.

[30] The Applicant has also been given a fair go.

[31] Consequently my decision is that this application for an unfair dismissal remedy should now be dismissed on the initiative of Fair Work Australia under section 587(3) of the Act.

[32] An order to this effect will be issued in conjunction with this decision

COMMISSIONER

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