Mark Olley v Itf Hire

[2019] FWC 7945

[2019] FWC 7945

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Mark Olley
v
ITF Hire
(U2019/6791)

DEPUTY PRESIDENT SAMS SYDNEY, 25 NOVEMBER 2019

Application for an unfair dismissal remedy – dismissal for alleged use of Company fuel card for personal use – failure to comply with directions – late explanation not supported by evidence – prospects of success not great – application dismissed for want of prosecution.

[1] On 19 June 2019, Mr Mark Olley (the ‘applicant’) filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) in which he sought an unfair dismissal remedy arising from his alleged dismissal by ITF Hire Pty Limited (the ‘respondent’ or ‘ITF’). The applicant claimed he was employed by ITF for ‘just over [a] year’. In its Form F3 response, ITF said it was a liquid waste/hire organisation which employed the applicant between 5 March 2018 to 4 June 2019. At the time of the applicant’s dismissal, ITF claimed to have ten employees (a small business).

[2] Shortly stated, it is alleged that the applicant used ITF fuel cards for personal use on a number of occasions. This resulted in an investigation being conducted by the ITF. The allegations were found to be substantiated, resulting in the dismissal of the applicant. The applicant denied the allegations and claimed he was not afforded procedural fairness throughout the investigation, which culminated in his dismissal. In its Form F3, the respondent stated that it had contacted the Small Business Hotline and took all steps to ensure that the dismissal was compliant with the Small Business Fair Dismissal Code (the ‘Code’). Although the respondent did not indicate it was objecting on a jurisdictional basis, it subsequently confirmed its objection during an in-person conference convened on 16 October 2019.

THE PROCEEDINGS

[3] On 3 October 2019, I issued directions and a notice of listing for a hearing of the jurisdictional objection and conference. Both parties attended the conference, but the matter was unable to be resolved. During this conference, the parties were also reminded of the requirement to file submissions and witness statements in accordance with the directions.

[4] As the objector, the respondent complied with the directions and filed its submissions on 24 October 2019. The applicant failed to file his evidence and submissions which were required by 14 November 2019. On Tuesday 19 November 2019, after the respondent contacted my Chambers querying whether Chambers had received any correspondence from the applicant, I had cause for my Associate to write to Mr Olley as follows:

‘Chambers notes your failure to comply with the Directions, as your submissions and other evidentiary material were required to be filed by 4pm 14 November 2019. As a result, you are required to urgently advise Chambers by close of business tomorrow 20 November 2019 as to whether you intend on proceeding with your matter. If you do intend on proceeding, His Honour notes that any materials you do file between now and the Hearing listed at 10am 27 November 2019 may not be taken into account due to their lateness.’

No such response was received by the requisite time.

[5] However, on Sunday 24 November 2019, the applicant responded as follows:

‘I’m sorry I’ve been unwell due to a hernia in my groin and have been in servers (sic) pain , I’ve only just seen the email ,I thought that Itf were the only one that had to submit anything , i (sic) was told to sign something saying I had use the company fuel card on quite a number of Times in my own vehicle and that I wasn’t being fired when I refused to sign that she suspended me and ordered me to have a meeting the next morning which I wouldn’t make she made me have Dan is my witness because she wasn’t taking no for an answer that I would not be able to do the meeting why only witnesses are employees of the company who will not go against the company and my bank Statement

I also i’ll (sic) be using the fact that the company fuel card isn’t in my position (sic) and is in a factory where anyone can get access to employees know the pin number being the number plate’

The applicant did not provide any medical or other evidence to support his position. Obviously, this communication was not a witness statement in proper form.

CONSIDERATION

[6] In light of the above narrative, I have decided to dismiss this application, pursuant to s 587 of the Act for want of prosecution on two bases; namely: the applicant’s failure to comply with the directions of the Commission and for his failure to provide credible evidence to support the reasons for his non-compliance.

[7] The Commission’s powers to dismiss an application are set out generally at s 587 of the Act. I set out the section below:

‘SECTION 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.’

[8] It has been long held by the Courts, Commissions and Tribunals that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so; see: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8]. This is because such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form of relief, from a beneficial statutory provision. In other words, the application is dismissed before an applicant has had, in the common vernacular, their ‘day in court’.

[9] That being said, s 587 of the Act does not limit the grounds on which the Commission, of its own motion, may dismiss an application. In the present case, the applicant has demonstrated an unwillingness to properly engage with the Commission in respect to his application by failing to comply with directions. The applicant’s attempt to explain his non-compliance is not persuasive, despite being warned of the possible consequences. Given this history, I have little confidence that the applicant will, at some future point, seek to properly, prosecute his claim. I am also satisfied, from the respondent’s filed material that the applicant’s prospects of success are not great.

[10] I am reminded of what Kirby J said in Allesch v Maunz (2000) 203 CLR 172. At [35]-[39], His Honour said:

‘It is a principle of justice that a decision maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made.

…

… it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.

Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests.’ (my emphasis)

[11] In Viavattene v Health Care Australia[2013] FWCFB 2532, a Full Bench of the Commission said at [39]:

‘[39] It is apparent from the decision subject to appeal that the Commissioner had regard to Sayer v Melsteel, and made her decision following an analysis of the respondent's uncontested evidence, noting that the respondent's sworn statements and submissions contained “substantial arguments in response to the Applicant's contentions”. There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended “to ensure that a ‘fair go all round’ is accorded to both the employer and employee concerned” (s.381).’ [endnotes omitted] (my emphasis)

[12] In my assessment, it would be unfair and unreasonable to subject the respondent to further time spent and cost in defending a matter which is not properly being prosecuted by the applicant. This is a telling factor in favour of making an order to dismiss this application, given the overarching Object of the Commission’s unfair dismissal jurisdiction as set out at 381(2) of the Act which states:

‘(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.’

[13] In the exercise of my discretion, I dismiss application U2019/6761, pursuant to s 587 of the Act. I so order.

DEPUTY PRESIDENT

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