Mark Pryke v TNT Australia Pty Ltd

[2016] FWC 9217

[2016] FWC 9217

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Pryke
v
TNT Australia Pty Ltd
(U2016/11734)

DEPUTY PRESIDENT CLANCY MELBOURNE, 22 DECEMBER 2016

Application for relief from unfair dismissal.

[1] On 23 September 2016 Mr Mark Pryke made an application for remedy for unfair dismissal under s.394 of the Fair Work Act (the Act).

[1] The matter was listed for conciliation on 7 November 2016. However, this conciliation could not take place as Mr Pryke’s then representative, Ms M Cerrato of the Transport Workers’ Union of Australia (TWU), advised the Fair Work Commission (Commission) that Mr Pryke had not been contactable since the filing of his application. Consequently, directions were issued and the matter was listed for hearing.

[2] On 7 November 2016, the Commission received a Form F54 – Notice of representative ceasing to act from the TWU.

[3] Mr Pryke was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon on 7 December 2016.

[4] On 7 December 2016, the Commission attempted to telephone Mr Pryke regarding his intention to file submissions and a voice message was left requesting that he return the call.

[5] On the same day, the Commission sent an email to Mr Pryke advising that his submissions had not been received and requested that he contact the Commission by noon on 8 December 2016, or the matter would be listed for a non compliance hearing on 12 December 2016.

[6] On 8 December 2016, the Commission made a further attempt to contact Mr Pryke by telephone. As no answer was received, another message was left for Mr Pryke to contact the Commission. Subsequently, a Notice of Listing was sent to the parties advising them of a non compliance hearing listed before Deputy President Gooley at 10:00am AEDT on 12 December 2016.

[7] On 8 December 2016, the Commission telephoned TNT to confirm its attendance and contact details for the non compliance hearing.

[8] On 12 December 2016, an attempt was made by the Chambers of Deputy President Gooley to telephone Mr Pryke. However, as My Pryke did not answer, a voice message was left for him to return the call regarding the non compliance hearing.

[9] No return telephone call was received from Mr Pryke and, accordingly, the non compliance hearing on 12 December 2016 was only attended by TNT.

[10] At this hearing, TNT made an application under s.399A of the Act that the matter be dismissed due to Mr Pryke’s failure to comply with directions of the Commission (s.399A application).

[1] Section 399A of the Act provides as follows:

399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

....
(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[1] A letter was then sent to Mr Pryke advising him that TNT had made a s.399A application at the non compliance hearing. In this correspondence, Mr Pryke was directed to file submissions providing reasons as to why the Commission should not dismiss his application by close of business on 19 December 2016.

[2] On 12 December 2016, the Commission received a voice message from Mr Pryke in relation to the earlier call regarding the non compliance hearing.

[3] In a further telephone call on 13 December 2016, Mr Pryke advised that he had not received any information about his unfair dismissal matter as he believed the TWU was still acting for him. Mr Pryke expressed confusion as to the status of his representation in the matter. He was advised by the Commission that it no longer had a record of a representative acting for him on file. It was explained to Mr Pryke that his matter had gone to a non compliance hearing on 12 December 2016 because he had not filed submissions in accordance with directions. Mr Pryke stated that he was on workers compensation at the time of his termination and wants TNT to continue to pay his medical costs. Mr Pryke was informed that he could seek legal advice regarding this, and was advised that if that he wished to proceed with his application he would need to file submissions providing reasons as to why his application should not be dismissed under s.399A. Mr Pryke was further advised that these submissions were due by close of business on 19 December 2016 and was provided with the contact details for filing these with the Commission.

[4] On 19 December 2016, Mr Pryke sent an email to the Commission providing submissions in relation to his unfair dismissal application. Included in these submissions was an outline of submissions, correspondence from TNT regarding his employment, and attachments that contained medical examinations and reports. Mr Pryke did not provide submissions that directly addressed the reasons as to why his application should not be dismissed under s.399A. A copy of this email was forwarded to TNT.

[5] On 20 December 2016, my Chambers sent an email to TNT referring to the material filed by Mr Pryke and requested that it advise me whether it wished to maintain its s.399A application and if so, provide reasons why Mr Pryke’s application should be dismissed by 3:00pm on 21 December 2016.

[6] On 20 December 2016, TNT sent an email to my Chambers advising that it wished to press its s.399A application. In this correspondence, TNT noted the following:

● Mr Pryke failed to attend a conciliation conference on 7 November 2016, and no explanation for his non attendance was provided. On this occasion Mr Pryke was represented by the TWU, who did attend the conference, but Mr Pryke himself did not;

● Mr Pryke failed to comply with the directions issued in this matter, which required the filing of material in support of his application by no later than noon on 7 December 2016. No explanation for the non compliance with these directions has been provided; and

● Mr Pryke failed to attend the Non Compliance Conference/Hearing on 12 December 2016. No explanation for his non-attendance has been provided.

[7] As such, TNT submitted that Mr Pryke’s failure to both attend conferences conducted by the Commission and comply with directions, was unreasonable. It was further submitted by TNT that this has caused it inconvenience in terms of time taken to prepare for and attend these conferences. TNT asserted that Mr Pryke has had ample opportunity to prosecute his application and despite receiving correspondence he failed to provide reasons for his multiple failures to participate in the process.

Consideration

[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] In the Explanatory Memorandum to the Act it is 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 of the Commission 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 list 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] Mr Pryke did not comply with the Commission’s directions within time, nor did he seek an extension of time prior to the compliance date or contact the Commission following repeated requests to do so. Mr Pryke also did not attend the non compliance hearing on 12 December 2016. Mr Pryke has been difficult to contact and appears to have been confused as to the status of his representation and the steps he has been required to complete. However, once he became aware of the requirement to file submissions, he did not subsequently ignore his obligation. Mr Pryke subsequently sent an email to the Commission on 19 December 2016 providing materials in support of his unfair dismissal application.

[14]
Mr Pryke has not indicated an unwillingness to have his matter ready for hearing within an acceptable period of time. He has filed his material and there is still sufficient time for TNT to file material in reply without disturbing the hearing date. I will issue amended directions requiring TNT to file and serve on Mr Pryke its material by 4:00pm on Tuesday 10 January 2016. I am not persuaded to dismiss Mr Pryke’s unfair dismissal application. An order giving effect to this decision will be issued today and the matter will proceed to hearing on 16 January 2016.

DEPUTY PRESIDENT

 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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