Khoi (Richard) Tran v Australia and New Zealand Banking Group Limited

[2015] FWC 928

[2015] FWC 928

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Khoi (Richard) Tran
v
Australia and New Zealand Banking Group Limited
(U2014/14335)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 6 FEBRUARY 2015

Application for relief from unfair dismissal.

[1] Mr Khoi Tran alleged that his dismissal by Australia and New Zealand Banking Group Limited was unfair.

[2] On 19 November 2014, directions were issued to Mr Tran to file material in support of his application by no later than 1 December 2014. The directions advised the parties that they are required to comply with the directions.

[3] Mr Tran was represented in this matter by Kabo Lawyers.

[4] Mr Tran did not comply with these directions and no application for an extension of time was made before the compliance date.

[5] On 11 December 2014, ANZ contacted the Commission and advised that Kabo Lawyers had contacted it on 1 December 2014 requesting an extension of time to file his material. Mr Tran’s lawyers did not contact the Commission about this request. ANZ advised that it tried to follow this up with Mr Tran’s lawyers but they did not respond. ANZ foreshadowed in that correspondence which was copied to Mr Tran’s lawyers that it would seek to have the application dismissed under section 399A.

[6] The matter was then listed for non compliance on 24 December 2014. Mr Tran provided a contact number for the non compliance hearing. Mr Tran contacted the Commission on the morning of the non compliance hearing to confirm his telephone number as he had not been called.

[7] At the non compliance hearing neither Mr Tran nor his representative were present. The ANZ made a section 399A application and Commissioner Bissett waived compliance with the Rules and accepted the oral application. A letter was sent to Mr Tran giving him until 14 January 2015 to respond to that application. Mr Tran filed submissions in opposition to the application to dismiss and the ANZ responded to those submissions.

[8] Mr Tran submitted that he had planned to prepare his material in the week commencing 24 November 2014 as he had been unavailable due to work commitments prior to that date. Mr Tran had commenced new employment on 10 November 2014. On 21 November 2014, Mr Tran was advised that he had to attend training sessions in Brisbane from 24 to 28 November 2014. As a result he was unable to meet with his solicitor on his return due to a backlog of work and he was again required to go to Brisbane for training from 16 to 19 December 2014.

[9] Mr Tran gave priority to his new job.

[10] Mr Tran submitted that he did not attend the non compliance hearing because the confusion about the contact phone numbers meant that his solicitors were not contacted.

[11] Mr Tran submitted that he suffered depression and provided a medical certificate dated 4 October 2014 to support that claim. A copy of the drugs prescribed for Mr Tran at this time was also exhibited.

[12] ANZ submitted that in response to Mr Tran’s request for an extension of time, it had proposed alternative dates but Mr Tran’s solicitors did not respond.

[13] ANZ submitted that Mr Tran had not sufficiently explained why his new job prevented him from complying with directions. Further it said there was no adequate explanation of why Mr Tran could not instruct his solicitors in the period from 10 November 2014 to 1 December 2014. He could have done so outside of working hours or by email or telephone. Further Mr Tran provided no explanation of why witness statements for the witnesses he intends calling could not have been prepared. ANZ also relies upon the failure of Mr Tran to seek an extension of time.

[14] ANZ submitted that the medical certificate does not support a finding that his medical condition prevented him from complying with directions and in any event the medical certificate is dated.

Consideration

[15] On application by an employer the Commission has the discretion to dismiss an unfair dismissal application because there has been non compliance with directions of the Commission. 1

[16] 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

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

[18] 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.

[19] While not an exhaustive lists of matters that may be considered, I will adopt the approach of the Full Bench in this matter.

Conclusion

[20] Despite being aware that he could not comply with the directions of the Commission and despite the co-operation of ANZ in supporting an extension of time, Mr Tran did not apply to the Commission for an extension of time prior to the date of compliance. In fact neither Mr Tran nor his lawyers contacted the Commission until the matter was listed for non compliance.

[21] It is not unusual for applicants to gain other employment. While I understand that the new employment will take priority I do not accept that Mr Tran’s circumstances meant that he was incapable of giving instructions to his lawyers. Even when he was in Brisbane he could still communicate with his lawyers. I also note that Mr Tran did not give any evidence in his statutory declaration to support his submissions.

[22] I am unable to find on the evidence that Mr Tran did not comply with the directions to participate in the non compliance hearing. The material supports a finding that he was available to be called and why this did not happen is not explained by the material before me.

[23] Mr Tran has still not filed all the material he seeks to rely upon. The making of a s.399A application does not absolve a non compliant party from its obligations to be ready for trial particularly when in his submissions Mr Tran advised that he did not wish to lose the hearing dates of 18 and 19 February 2015. Unfortunately those hearing dates are now lost.

[24] The ANZ submissions that this application should be dismissed, has merits. However I am not prepared to dismiss this matter. While Mr Tran and his lawyer’s conduct exhibited a cavalier attitude to the Commission and ANZ, it is clear that this is not a case in which I could conclude that Mr Tran is unwilling to prosecute his case in a timely fashion.

[25] I will issue directions for Mr Tran to file any additional material on which he intends relying including witness statements by noon on 13 February 2015. ANZ will then have three weeks to reply. If Mr Tran does not file any additional material he will not be able to adduce further evidence at the hearing/conference without the permission of the presiding member.

DEPUTY PRESIDENT

Appearances:

K. Tran and N. Young on behalf of Applicant.

F. Forrest on behalf of Respondent.

Hearing details:

2015.

Melbourne:

6 February.

 1 S.399A of the Fair Work Act 2009

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

 3   PR956665

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