Michael Graham v Ambulance Victoria

[2021] FWC 2166

[2021] FWC 2166

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Graham
v
Ambulance Victoria
(U2020/13355)

COMMISSIONER BISSETT MELBOURNE, 26 APRIL 2021

Application for an unfair dismissal remedy.

[1] On 8 October 2020, Mr Michael Graham (Applicant) made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The Commission attempted to contact the Applicant on 12 October 2020 however the Applicant did not answer, and a voice mail was left to advise the date of conciliation and the process involved. Confirmation of Mr Graham’s preferred contact number for conciliation was also sought. Mr Graham did not respond to the voice mail.

[3] On 19 October 2020, another voice mail was left for Mr Graham on his nominated telephone number to obtain contact details for conciliation.

[4] On 22 October 2020, conciliation could not take place as Mr Graham did not answer the Conciliator’s calls made to the phone number provided by him in his application. The Applicant was called at 11:13am, 11:18am and 11:34am with voice mails being left on each call.

[5] On 23 October 2020 Ambulance Victoria (Respondent) requested that a second conciliation take place. An email was subsequently sent to the Applicant on 26 October 2020 asking if he agreed to a second conciliation.

[6] The Commission received a phone call from Mr James Davis, Workplace Advisor from Ambulance Victoria on 28 October 2020 who said the Respondent had concerns for Mr Graham’s welfare however requested that the matter remain open for a second conciliation.

[7] On 5 November 2020, Mr Davis of the Respondent telephoned the Commission and said he had contacted Mr Graham and Mr Graham advised he was seeking treatment from a health professional. Mr Davis requested the matter to be listed for a second conciliation and not proceed to arbitration at this stage. The Case Manager informed Mr Davis the Applicant would be contacted.

[8] On the same day, the Commission attempted to contact Mr Graham however no response was received. A voice mail was left requesting Mr Graham contact the Commission regarding participation in a second conciliation. An email was also sent to Mr Graham seeking his views on a second conciliation and to provide any dates of unavailability. The Respondent was also sent an email requesting dates of unavailability.

[9] On 11 November, the matter was allocated to my Chambers where an email was sent to Mr Graham requesting a medical certificate with respect to his capacity to participate in proceedings to be provided to Chambers by no later than 27 November 2020. The Applicant failed to provide this to Chambers. A follow up email was sent to Mr Graham on 30 November 2020. Mr Graham replied on 8 December 2021 stating a certificate would be provided at the end of the day as Mr Graham was awaiting contact from his practitioner’s office. A certificate was not received, and an email was sent to Mr Graham on 9 December 2020 seeking the status of the certificate.

[10] On 11 January 2021, Chambers sent a further email to Mr Graham seeking an update on his medical certificate. No response was received.

[11] On 19 January 2021, Chambers emailed parties advising that as the Respondent was willing to proceed to a second conciliation, and if Chambers failed to receive an update from Mr Graham, the matter would be referred to the conciliation unit where it would be listed for conciliation.

[12] On the same day an email was sent to parties from the conciliation unit seeking the availability of the parties for a conciliation to be listed. The Respondent provided their availability on 20 January 2021. Mr Graham did not contact the Commission.

[13] The Commission again attempted to contact the Applicant on 21 January and 4 February 2021 to confirm his availability for conciliation however both attempts were unsuccessful, and the calls went to voice mail.

[14] The matter was listed for conciliation on 9 February 2021 however Mr Graham failed to attend.

[15] The matter was again referred to my Chambers on 9 February 2021.

[16] An email was sent to Mr Graham on 12 February 2021 directing Mr Graham to contact the Commission by 19 February 2021 to advise Chambers if he wished to pursue his application. Mr Graham failed to contact the Commission.

[17] A final email was sent to Mr Graham on 31 March 2021 advising him that Chambers has not heard from him about pursuing his application with the Commission. Chambers advised Mr Graham how the application may be discontinued if he wished to no longer pursue it. If no response was received, Mr Graham was advised that his application may be dismissed.

[18] To date, Mr Graham has not contacted the Commission about his intention to pursue his application.

[19] Section 587(3) of the FW Act provides:

“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.”

[20] It is well accepted that the reasons for dismissing an application under s.587 of the FW Act as set out in s.587(1) are not exhaustive. This much is apparent form the wording “Without limiting when the FWC may dismiss an application…” In this case Mr Graham has been given extensive and ample opportunities to advise the Commission of his medical condition (to the extent he indicated in 2020 that his medical condition meant he could not participate in Commission proceedings at that stage).

[21] Having made his application on 8 October 2020, Mr Graham has contacted the Commission only once, despite numerous invitations and requests from the Commission for him to provide relevant information that would enable his matter to be appropriately programmed.

[22] In these circumstances I am satisfied that Mr Graham does not wish to pursue his application. I have therefore determined, on my own initiative, that his application should be dismissed for want of prosecution.

[23] Having regard to the circumstances of this matter, the application is dismissed pursuant to s.587 of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

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