Mohammed Ayaz v Transdev NSW South Pty Ltd

Case

[2016] FWCFB 3672

10 June 2016

No judgment structure available for this case.

[2015] FWC 7098 [Note: An appeal pursuant to s.604 (C2015/7192) was lodged against this decision - refer to Full Bench decision dated 10 June 2016 [[2016] FWCFB 3672] for result of appeal.]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s 394 - Application for unfair dismissal remedy

Mohammed Ayaz
v
Transdev NSW South Pty Ltd
(U2013/8689)

DEPUTY PRESIDENT SAMS

SYDNEY, 15 OCTOBER 2015

Unfair dismissal application – agreement to settle the matter – whether agreement binding – no reasonable prospects of success – unreasonable failure to discontinue application after settlement - failure to prosecute in a timely manner – application dismissed.

[1] This decision will determine an application made by Transdev NSW South Pty Ltd (Transdev), formerly Veolia Transport NSW Pty Ltd (‘Veolia’), pursuant to s 587 of the Fair Work Act 2009 (the ‘Act’) for the dismissal of an unfair dismissal application made by Mr Mohammed Ayaz (the ‘applicant’). The applicant was employed by Veolia as a Bus Driver from December 2006, until his dismissal on 8 April 2013. He lodged an application for an unfair dismissal remedy with the Fair Work Commission (the ‘Commission’) on 17 April 2013. A telephone conciliation of the matter on 22 May 2013 proved unsuccessful and directions were issued for the matter to be determined by the Commission by way of a hearing on 9, 10 and 11 August 2013.

[2] However, on 5 August 2013, the Commission received an email from Mr Adam Guy, a Legal Officer of the Transport Workers’ Union of Australia (TWU) and the applicant’s then representative, which was expressed as follows:

    ‘I refer to the above matter in which directions have been set down for the filing of the Applicant’s evidence and submissions by noon today (5 August 2013).

    Since directions have been issues, the parties have come to an in principle settlement agreement which we anticipate will be finalised shortly.

    Accordingly, we kindly ask that the directions for the above matter be vacated pending the settlement and discontinuance of the matter.

    The Respondent’s representative has been copied in by way of notice of this correspondence.

[3] The Commission’s file reflects that the applicant made contact with the Commission after that time (which I will discuss later). However, it was not until 15 December 2014 that the applicant wrote to the Commission, in response to a request for the filing of a notice of discontinuance sent on 5 December 2014. The applicant’s email is in the following terms:

    ‘Thank you for you’r email, receiving after such a long time from the office of the fwc.
    Please note that I do not have any intention to give up and/or withdraw my application at all and still looking forward to be heard by the authorities, welfare organisations and public media about the role these people playing with help of trade union officials and I make all of them to be responsible of what unfairly happening in the industries. Majority of employees are insecure to raise their voice and rather stay away with silence to sustain their jobs.
    In fact no one understand that why this matter is taking such a long time and I am still waiting patiently. My health condition is not very promising due stress and anxiety, caused by these responsible people who were or/and still are very influential and power full because of positions they hold. Even head of the TWU Law department rudely shouted at me over the phone to push me to sign some paper (s) in thier favour.
    It will be much appreciated if you could please organise the date to be heard these matters.’

[4] Veolia opposed the application being relisted on the basis that the application would have no reasonable prospects of success, within the meaning of s 587 of the Act, as the parties had reached a settlement of the applicant’s claim on 1 August 2013. That section of the Act is expressed as follows:

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.

    (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.

[5] The matter was allocated for me for determination of whether the applicant’s unfair dismissal application should be relisted for substantive hearing. However, following a mention on 20 February 2015, I issued directions for the parties to file evidence and submissions on two discrete preliminary issues:

(a) whether a settlement was reached between the parties; and

(b) the applicant’s alleged failure to prosecute his case in a timely manner.

[6] While the parties consented to the above issues being determined ‘on the papers’, having considered the materials provided by them, I formed the view that there were factual matters in dispute, and that being the case, s 397 of the Act required the Commission to conduct a conference or hearing in relation to the matter; See: Shields v The Trustee for the Jell Discretionary Trust [2015] FWCFB 2945. Accordingly, on 12 June 2015, I issued further directions for the parties to file any further materials, if they wished to do so, and the issues were listed for hearing on 14 August 2015.

[7] At the hearing, the applicant represented himself and Mr N Chadwick, Solicitor, appeared for Transdev with permission granted, pursuant to s 596 of the Act.

SUBMISSIONS

For Veolia

[8] In written submissions, Mr Chadwick referred to the decision of Masters v Cameron (1954) 91 CLR 353 (‘Masters v Cameron’) as referred to by Bissett C in McKinnon v Eventide Homes (Stawell) Inc. [2013] FWC 5273 (‘McKinnon v Eventide’). In the current case, the evidence discloses that Veolia had received an email from Mr Guy on 1 August 2013 in the following terms:

    ‘I refer to our telephone conversation earlier today and I can confirm that Mr Mohammad Ayaz accepts the offer put by your client on the following terms:

    1. [redacted]
    2. [redacted]
    3. [redacted]

    Could you please draft a deed for our consideration and I will return a copy to you when it has been executed.’

[9] The TWU then notified the Commission on 5 August 2013 that the parties had reached an ‘in principle’ settlement (See para [2] above). A deed of release was subsequently sent to the TWU.

[10] Mr Chadwick submitted that the effect of these circumstances was, in the words of Masters v Cameron, that the parties had either:

    ● agreed on all terms and intended to be immediately bound to perform those terms, but simultaneously proposed to have the terms restated in a fuller or more precise form, but no different in effect; or
    ● agreed on all terms and intended no departure from or addition to that which the agreed terms express or implied, but had made performance of one or more of the terms conditional upon the execution of a formal document.

[11] Mr Chadwick referred to Zoiti-Licastro v Australian Taxation Office (2006) 154 IR 1 and Australian Postal Corporation v Gorman [2011] FCA 975 (‘Australia Post v Gorman’) as authorities for the proposition that where the Commission found an agreement had been reached between the parties, an application would be found to have no reasonable prospects of success. It followed that the application should be dismissed, in accordance with s 587(1)(c) of the Act; See also: Howey v Mars Australia Pty Limited t/as Mars Petcare Australia[2012] FWA 6259 (‘Howey v Mars’) and Tomas v Symbion Health[2011] FWA 5458.

[12] Mr Chadwick addressed the second issue of whether the applicant had failed to prosecute his case in a timely manner. He said that on receipt of an email from the applicant to the Commission, dated 4 January 2014, it became apparent that the applicant was withdrawing from the settlement agreement reached in August 2013, and now wanted his application relisted for hearing. That email was expressed as follows:

    ‘Unfortunately my TWU law office has refused to help me any longer to contest my unfair dismissal against Veolia Transport, unless I agree to their limited Terms & conditions and finalise these two issues with out going any further.

    Could I please request to represent my self if I can still avail this support that you have offered to me, as you advised that you could still proceed the matter (s) upon my request.

    There are five issues, as per TWU Lawyer, Mr. Adam Guy, advised as follows.
    a. Unfair Dismissal, and
    b. Discriminations, Bulling and Harassment at the work place, and c. Preplan to create Psychological, emotional and stressful situations for me to end up in the hospitals d. Clear Violations of Equal Employment Place and Benefits to their family members and favourite employees e. 99% decisions were made on the bests of liking and disliking and were not followed by appropriate criteria.

    I am still finding out that all matters will be submitted the Fair works of Australia and/or in the civil court.

    For these matters, I may need to seek advice from different public and Government organisations.

    According Mr. Adam Guy advice, he said I will need to contest for unfair dismissal before going any further. It means that I have to wait for the outcome of my unfair dismissal hearing then prepare for the other matters enlisted above.

    May I please request you to organise a hearing in regard to this in late March or early April. Please advise me on [email supplied].’

[13] Mr Chadwick emphasised that there had been a gap of four months between the draft Deed of Release being sent to the TWU and the applicant’s withdrawal from the settlement. On 14 January 2014, he wrote to the Commission to oppose the matter being reopened on the basis that the parties had reached an agreement. On 11 February 2014, the Commission wrote to the parties to advise that it was proposed that the matter be listed for mention, noting the applicant’s previous advice that he was overseas. He was directed to indicate his availability to attend the proposed listing.

[14] Mr Chadwick said that Veolia/Transdev had heard nothing further from the applicant, or the Commission until 11 February 2015, when it received a notice of listing from my Chambers. In the course of the mention on 20 February 2015, Mr Chadwick was advised that the Commission’s records disclose the applicant had contacted the Commission on 13 March 2014, that there had been another telephone conversation between the applicant and an employee of the Commission on 26 March 2014 and the Commission had left a voicemail for the applicant on 11 June 2014, to which he had failed to respond.

[15] Even so, Mr Chadwick submitted that these circumstances disclose that between March and December 2014, the applicant had taken no action to advance his case before the Commission. It could not therefore be said that he had acted diligently to prosecute his application.

[16] Mr Chadwick put that the respondent would be significantly prejudiced, should the applicant be allowed to pursue his case, two years and four months after his dismissal. The Commission should weigh this consideration against the right of the applicant to have his case heard and in light of the statutory directive to the Commission, in s 381(2) of the Act, to afford a ‘fair go all round’ to the parties; See: Esposito v Customer Service Benchmarking Australia Pty Ltd[2014] FWC 1525.

[17] Mr Chadwick said that the prolonged period of inactivity, on the applicant’s part, should lead to the Commission dismissing the applicant’s application, pursuant to s 587(3)(a) of the Act; See: Dawkins v East Coast Commercials [2013] FWC 3070 and Chand v State Rail Authority NSW, PR975108 (‘Chand v State Rail’).

[18] In oral submissions, Mr Chadwick highlighted a notice issued by the Commission on 6 August 2013 and which was forwarded to the applicant’s home address, cancelling an arbitration to take place between 9-11 September 2013. It was set out in upper case, as follows:

    ‘THE APPLICANT’S REPRESENTATIVE HAS ADVISED THE FAIR WORK COMMISSION THAT THE PARTIES HAVE REACHED A SETTLEMENT AGREEMENT.

    THE LISTING(S) HAS NOW BEEN CANCELLED AND A NOTICE OF DISCONTINUANCE IS TO BE FILED WITH THE FAIR WORK COMMISSION.’

[19] Relying on this notice, Mr Chadwick made a further application to dismiss the applicant’s claim on the basis that he had unreasonably failed to discontinue the application, after a settlement agreement had been reached (s 399A(1)(c)).

[20] Mr Chadwick put that there was no evidence from the applicant as to what he was doing from August 2013 to early 2015. Two particular periods were of note; firstly, the five month period between August 2013 and January 2014, during which the TWU was apparently representing the applicant. At the end of this period, the applicant notified the Commission that he wanted the matter relisted. Secondly, there was then a long period after March 2014 during which the applicant made no contact with the Commission (I note, however, that the Commission’s file does record some contact by the applicant with the Commission during this period. Understandably, Mr Chadwick was not aware of this contact (see para [14] above)). He said that, in any event, there were still significant gaps. It would have been expected that a person as aggrieved as the applicant claims, would have been regularly contacting the Commission.

[21] Mr Chadwick referred to the reasons for the applicant’s dismissal, outlined in a letter dated 8 April 2013 (the date of his dismissal), which set out that he had been issued with many warnings for poor punctuality and unsatisfactory conduct in November 2008, June 2009, with a final written warning in August 2011.

[22] In response to a question from me, Mr Chadwick acknowledged that the draft Deed of Release referred to the applicant filing a Notice of Discontinuance, subject to the payment of certain monies. Mr Chadwick said that no money was paid, because the applicant had not signed the Deed of Release.

For the applicant

[23] The applicant provided a one page statement in response to the directions issued on 20 February 2015. He emphasised that while Mr Guy of the TWU had raised his voice and pressured him to sign a settlement document, he had not done so. When he had asked Mr Guy for more expansive terms and conditions in relation to a settlement, he had been given a ‘format copy’ of the Agreement to read. A few days later he had advised Mr Guy that he did not agree with the terms and conditions set out in the document and that he wanted to proceed with his case. Mr Guy had then told him that the TWU would not represent him, if he decided to proceed with his application.

[24] The applicant said that he had ‘immediately’ contacted the Commission by phone and by email to advise that the matter was not ‘closed’. He had continued to contact the Commission after this time. He noted he had no authority to set hearing dates. He had been assured that he would be informed as soon as a hearing date was set. Whenever he received correspondence, he always called the Commission. The applicant sought an opportunity to prove his dismissal was unfair.

[25] In oral submissions, the applicant claimed that he had been mistreated by the TWU and he had been unable to afford a lawyer to get proper advice. He identified some dates on which he had contacted the Commission. When asked about gaps in these communications, he stressed that he was waiting for a hearing to be listed and had been assured by Commission staff that the matter was not closed.

[26] The applicant was unclear as to what he ultimately sought from the proceedings, although he wanted to make Veolia and the Union accountable for their actions towards him and others. He said that Veolia had not made its decision to dismiss him on a professional basis and that it had humiliated him, which caused him to be hospitalised.

[27] In reply, Mr Chadwick submitted that there was no evidence brought by the applicant to demonstrate that the substance of the email forwarded by Mr Guy to the Commission on 5 August 2013 or the consequential cancellation of the hearing, were incorrect.

The Commission’s file

[28] For the sake of completeness, I summarise below notes made on the Commission’s file by Commission staff during the relevant period(s):

2 September 2013

The applicant’s representative advised the Commission by telephone that he was waiting for the applicant to sign the Deed. He could not say when the matter would be finalised.

4 September 2013

The applicant advised the Commission by telephone that he did not want the listing cancelled. The applicant was told that the listing had been cancelled following advice from him that the matter had settled and that if he wanted to pursue his application, he should put this request in writing. He was also told to discuss the matter with the Union.

22 October 2013

An officer of the Union advised the Commission that the Deed was still awaiting execution.

22 October 2013

An email was sent to the Union in the following terms:

You advised on 5 August 2013, via email that parties have reached an principle settlement agreement and that pending settlement a discontinuance would be filed.

If you do not file a Notice of Discontinuance, as required by the Fair Work Australia Rules 2010, within a reasonable timeframe, the Panel head for Termination of Employment will issue a Decision as to whether the application should be dismissed.

This Decision will be published on the Fair Work Commission website.

A Notice of Discontinuance has been attached for your convenience.

18 December 2013

The applicant advised the Commission by telephone that he had never accepted a settlement and would like to proceed with the matter. He was directed to put this request in writing. The applicant asked about legal advice and was given a telephone number for Law Access NSW.

4 January 2014

The applicant sent an email asking that matter be relisted (see para [12]).

6 January 2014

The respondent’s representative advised the Commission by telephone that it opposed the application being reopened.

8 January 2014

The applicant advised the Commission, by telephone that he would be overseas until March and would be contactable by email during this period.

14 January 2014

The respondent’s representative confirmed in an email to the Commission that the claim was settled on 5 August 2013 and that it would oppose any application to reopen or reagitate the matter. This email was forwarded to the applicant.

30 January 2014

Mr Guy of the TWU advised the Commission by telephone that it was aware that the applicant was seeking to have his application heard. However, the Union had not been able to contact the applicant. Mr Guy had received advice that the matter had settled, but could not provide further details.

4 February 2014

The TWU filed a Notice that it no longer acted for the applicant.

11 February 2014

An email was sent from the Commission to the applicant in the following terms:

I refer to your request for the above matter to proceed to Arbitration Conference/Hearing.

Your request has been considered by Deputy President Gooley, Termination of Employment Panel Head at the Fair Work Commission.

Deputy President Gooley has advised that this matter will next proceed to a Mention hearing to determine whether or not settlement was reached between the parties, and an appropriate future direction for the matter.

I understand from recent correspondence that you are currently overseas. Please advise of your availability to attend a telephone Mention hearing (i.e contact phone number, preferred time and date etc) and when you will be returning to Australia. The information you provide will enable the Commission to make suitable arrangements for the Mention.

13 March 2014

An email was sent from the Commission to the applicant asking him to respond to the email of 11 February 2014.

21 March 2014

The applicant asked to speak to the officer of the Commission’s Unfair Dismissal Team with carriage of his file.

26 March 2014

The applicant advised by telephone that he had returned to Australia. He was again advised that the question of whether his matter would proceed would be determined at a mention. The applicant advised that he was available at any time and date and indicated a preference for the mention to be conducted in person. He apologised for not being available previously.

11 June 2014

Two voicemails were left for the applicant to confirm whether he wished the mention to go ahead.

5 December 2014

A voicemail was left for the applicant to contact the Commission. An email attaching a Notice of Discontinuance was forwarded to him.

15 December 2014

The applicant forwarded an email to the Commission (see para [3]).

At this point, the matter was allocated to me for determination.

CONSIDERATION

Was there ever a settlement of the applicant’s claim?

[29] There can be no doubt that at the time Mr Guy advised the Commission of the ‘in principle’ settlement of the matter, that the Union, and Mr Guy specifically, were acting for, and on behalf of the applicant. On 1 August 2013, Mr Guy sent an email to this effect to Mr Chadwick (see para [8]). It would appear that Mr Guy continued to represent the applicant up to a notice of ceasing to act, filed on 4 February 2014.

[30] Similarly, there can be no doubt that the applicant was advised on 6 August 2013 of the cancellation of the hearing because of ‘a settlement agreement’. He waited a full month (4 September 2013), before contacting the Commission to advise that he did not agree to the cancellation of the hearing.

[31] Relevantly, there was no advice to the Commission that Mr Guy no longer acted for him or that he intended to obtain alternative representation or conduct the hearing himself. Until 4 September 2013, the Commission had no reason to believe that the matter had not been settled. This delay for a month, sits rather uncomfortably with the applicant’s insistence that he had always wanted to pursue his unfair dismissal application, despite Mr Guy’s alleged ‘pressure’ on him to sign the Deed of Release. I shall come back to this matter later.

[32] Given that Mr Guy had, presumably on the applicant’s instructions, formally advised the Commission and the employer of an ‘in principle’ agreement and that Mr Guy continued to represent the applicant, it is not open for the applicant to claim that no settlement was reached. So much so must be the case, given the conclusions in Masters v Cameron, where it is said at page 360:

    ‘Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three classes. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.’

[33] The applicant put much reliance on the fact that he had not signed the terms of settlement and therefore it could not be binding upon him. However, this submission is misconceived, as a plain reading of Masters v Cameron makes clear. A lack of formal signing of terms of settlement does not alter the legal position of a settlement having been reached, in accordance with the understandings reached between the parties. Bissett C, in McKinnon v Eventide, dismissed an unfair dismissal application in circumstances where the parties had reached an agreement and the applicant later decided not to sign the agreement. At para [48], the Commissioner said:

    [48] The question of whether or not there was a binding agreement reached between the parties is a matter of fact. Even though the Applicant did not sign the agreement arising from conciliation this does not mean that a binding agreement was not reached. The question to be determined is if any agreement of the types described in Masters v Cameron was reached between the parties in conciliation. If the agreement reached is of the first or second category it would, following Masters v Cameron, be a binding agreement [endnote omitted].

In the present case, I am satisfied that there was an ‘in principle’ agreement to settle the claim and there is no reason why that settlement should not be the end of the matter.

[34] It must be stressed that this is not a case of an unrepresented applicant being confused or uncertain as to his or her rights under the agreement. The agreement does not appear to be unduly complicated and in any event, the applicant was at all material times represented by an official of the TWU. In these circumstances, as the agreement between the parties is a complete answer to the claim, the claim must have no reasonable prospects of success.

[35] In Howey v Mars, I said at paras [75] and [96]:

    [75] The authorities make plain that the existence of a binding settlement between parties, permits a conclusion that an application should be dismissed on a summary basis, or as Besanko J described in Australian Postal Corporation v Gorman as ‘a valid and effective accord and satisfaction’ which ‘extinguishes the pre-existing cause of action’. In addition, I respectfully agree with Gooley C’s comments in Tomas v Symbion Health at para 59:

      ‘In this matter I find that section 587 employers Fair Work Australia to dismiss an application for relief in circumstances where the parties have reached a binding agreement settling a claim and one party reneges on that agreement and seeks to have their claim determined. It is not necessary to make a finding that the application is frivolous or vexatious or that the application has no reasonable prospects of success as section 587 provides Fair Work Australia with a broad discretion to dismiss an application.’

    [96] It follows, that I am comfortably satisfied that the agreement was a binding settlement reached between the parties and was a complete answer to the claim. In addition, I conclude that the interests of justice and the principle of a ‘fair go all round’ would not be served by voiding the binding settlement.’

See also: Australia Post v Gorman.

[36] Accordingly, pursuant to s 587(1)(c) of the Act, the Commission determines that this application, having no reasonable prospects of success, must be dismissed.

[37] While not strictly necessary to make preliminary findings as to the merits of the applicant’s case, in the materials filed, there is nothing to suggest that the numerous instances over a number of years of the applicant arriving late for work and not advising Veolia of his lateness, did not occur. Nor was it disputed that the applicant had received a number of written warnings for his lateness. Given these were the main reasons for the applicant’s dismissal, it is possible – although I stress on a prima facie basis only - to conclude the applicant’s prospects of success with his claim of unfair dismissal, are not great.

[38] That said, in my opinion, s 399A sets out another discrete power of the Commission under the Act’s unfair dismissal regime, which could be invoked in this case. The section is expressed 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 [my emphasis].

[39] As I am satisfied that the applicant unreasonably failed to discontinue the application after a settlement agreement had been concluded, I would also dismiss this claim, pursuant to s 399A(1)(c) of the Act.

[40] However, even if I be wrong on the above two bases, I would also dismiss this application on the following grounds.

Did the applicant fail to prosecute his claim in a timely manner?

[41] Section 577 of the Act requires the Commission, in the exercise of its powers and functions to do so in a manner that:

    (a) is fair and just; and

    (b) is quick, informal and avoids unnecessary technicalities; and

    (c) is open and transparent; and

    (d) promotes harmonious and cooperative workplace relations [my emphasis].

[42] There are obvious practical and logistical reasons why matters such as this should be conducted as quickly as possible. These include the employer’s entitlement to arrange its workforce or recruit a new employee, so as to minimise any dislocation to the business caused by an employee’s dismissal.

[43] In order to facilitate the above objective, it is incumbent on the person who initiates proceedings, to prosecute their case within reasonable time constraints. Of course, this does not mean that extraneous factors or delays caused by other parties, will be the fault of an otherwise diligent litigant. However, where there are large slabs of unexplained inactivity in pursuing one’s claim, then it may result in the Commission dismissing the matter, based on a failure to diligently prosecute the case. So it is here.

[44] The applicant was dismissed over two and a half years ago. While not all of this time can be attributed to delays caused by the applicant, there are periods of many consecutive months where the applicant failed to inquire as to the progress of his application or comply with a request to advise, in writing, why he wished to pursue his application after the hearing dates were vacated. He was advised of this on 4 September 2013 and again on 18 December 2013, but put nothing, in writing, until 4 January 2014, some four months after being first advised to do so. There was no explanation as to why he did not do so during this time.

[45] I note that the applicant was overseas for the first three months of 2014. Notwithstanding that the applicant had been told on 11 February 2014 that his application would be listed for mention and, presumably he was waiting for a listing, a file note of 17 December 2014 records that the Commission had attempted to contact him by email and phone, numerous times, with no response. The first unanswered phone message was left by the Commission on 11 June 2014. There appeared to be no further action taken by the applicant to pursue his case, let alone make any inquiry as to the progress of his case until 15 December, a period of 6 months.

[46] In my view, the respondent would experience significant prejudice if this application is allowed to progress, given the length of time since the applicant’s dismissal (2½ years) and the significant periods of inactivity, on the applicant’s part, in progressing his claim. That this is a sound basis for dismissing the application is supported by the decision of the Australian Industrial Relations Commission (as the Commission then was) in Chand v State Rail, where it was said at para [48]:

    [48] The classic circumstances that enliven a court’s discretion to dismiss an action for want of prosecution are a failure, typically a repeated failure, by a plaintiff to comply with directions of the court or a prolonged period of inactivity on the part of a plaintiff.’

[47] Section 587 of the Act provides a wide discretion to the Commission to dismiss an application on grounds which are common to other courts and tribunals. There is no doubt that one such ground is the failure of an applicant to prosecute his/her case in a timely manner, that is, with due diligence. In my view, this is one such case. To the extent necessary, I make such a finding under ss 587(1) and (3) of the Act.

[48] For the reasons earlier stated and in order to ensure a ‘fair go all round’ (s 381(2) of the Act), I am satisfied that this unfair dismissal application should be dismissed. Orders to that effect will accompany the publication of this decision.

DEPUTY PRESIDENT

Appearances:

Applicant in person.

Mr N Chadwick, Solicitor for the respondent.

Hearing details:

2015,

Sydney:

14 August.

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