Mr Adam Collins v Workpac Pty Ltd

[2012] FWA 9688

[2012] FWA 9688

FAIR WORK AUSTRALIA

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Adam Collins
v
Workpac Pty Ltd
(U2012/12656)

COMMISSIONER CLOGHAN PERTH, 15 NOVEMBER 2012

Unfair dismissal.

[1] On 23 August 2012, Mr Adam Collins (“the Applicant”) made application to Fair Work Australia (FWA) seeking a remedy for alleged unfair dismissal from his former employer WorkPac Pty Ltd (“the Employer”).

[2] The application was made pursuant ot s.394 of the Fair Work Act 2009 (“the FW Act”).

[3] The application was unable to be resolved at conciliation and was referred to me for arbitration on 14 September 2009.

[4] On 18 September 2012, I issued procedural directions for a hearing on 19 November 2012.

[5] In the first instance, the procedural directions required the Applicant and the Employer to provide each other, and the Tribunal, with whatever documents they intended to rely upon in the hearing.

[6] The Employer complied with the procedural direction and provided the Applicant and the Tribunal with documents it intended to rely upon in arbitration. The Applicant did not comply with the direction.

[7] On 11 October 2012, my Associate requested, as a matter of urgency, that the Applicant provide the Employer and the Tribunal with whatever documents he intended to rely upon at the hearing.

[8] On 19 October 2012, my Associate emailed the Applicant advising that I had observed that he had not provided the documents he intended to rely upon. Further, by this time, Mr Collins had not set out his statement of facts which he relied upon, and any witness statements.

[9] The Applicant was informed that the purpose of the procedural directions were to assist in a fair, efficient and effective hearing.

[10] The Applicant was advised that, in the absence of not complying with the procedural direction, it appeared that he did not intend to progress his application. Should this be the case, the Applicant was required to advise my Associate by 4:00 pm Monday 22 October 2012.

[11] In the alternative, if the Applicant intended to pursue his application, he was required to comply with the procedural directions by 4:00 pm Monday 22 October 2012.

[12] My Associate’s email concluded with advice that if he did not respond to the email by 4:00 pm Monday 22 October 2012, the Tribunal would vacate the hearing date and deem, through the Applicant’s inaction, that he had discontinued the application.

[13] At 2:07 pm, 2:20 pm, 2:21 pm and 3:04 pm on 22 October 2012, the Applicant forwarded to my Associate a series of emails relating to his alleged unfair dismissal.

[14] On the same day (22 October 2012) at 3:23 pm, my Associate again requested the Applicant to set out his case and provide any documentary material as required pursuant to the procedural directions. The Applicant was given an extension to 4:00 pm Tuesday 23 October 2012. My Associate also advised Mr Collins that should he not provide the material required, I would set down a hearing into why the application should not be dismissed for non-compliance with procedural directions. No reply was received from the Applicant.

[15] On 24 October 2012, a Notice of Listing (NoL) was forwarded to the Applicant for a hearing on 8 November 2012. The NoL advised the Applicant as follows:

“The hearing is to consider the Respondent’s request (email dated 18/10/2012) to dismiss the application for non-compliance of procedural directions on the part of the Applicant.”

[16] Between 24 October 2012 and 8 November 2012, no communication was received from the Applicant.

[17] At the hearing on 8 November 2012, Mr Collins did not appear or advise the Tribunal why he was unable to attend. The Employer was represented by Ms Kylie Bowe, Head of Industrial Relations, People and Organisational Capability.

[18] Mr Bowes submitted:

• the Applicant has been encouraged to comply with procedural directions on three (3) occasions but has failed to do so;

• by the Applicant’s inaction, he has demonstrated no real interest proceeding with the application;

• the Applicant has not provided reasons for his non-compliance with procedural directions;

• the Applicant has not made an appearance at the hearing on 8 November 2012;

• s.577 of the FW Act mandates that the Tribunal perform its function in a manner that is fair, just and quick;

• s.578 of the FW Act must take into account the objectives of the FW Act in performing its functions. Part 3-2 of the FW Act which relates to the Applicant’s application has, as its objectives, procedures which are quick, flexible and informal, and the needs of the employer and employee are addressed to ensure a “fair go all round” for both parties;

• the Applicant has been given a “fair go” and advised of the consequences of his inaction, and finally;

• the Employer is entitled to have a claim against it determined in a reasonable time and in a reasonable manner and does not incur unnecessary costs in both monetary terms and time spent working on the application.

[19] For the above reasons, the Employer requested that the application be dismissed either on the Tribunal’s own initiative or on its application.

[20] Applicants and respondents, which in many cases, are employers, have an obligation to assist in the prompt, economical and fair resolution of applications. The Applicant has neglected to set out his case to the Employer, comply with procedural directions and emails of the Tribunal, and attend a hearing. In these circumstances, I dismissed the application on 8 November 2012 for want of prosecution. These are my reasons for dismissing the application and the order reflecting my decision.

COMMISSIONER

Appearances:

No appearance or representation by or on behalf of the Applicant.

K Boweon behalf of the Respondent.

Hearing details:

2012:

Perth,

8 November.

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