Mr Esteban Oreiro v Sydney Waste Services

[2012] FWA 4312

[2012] FWA 4312

FAIR WORK AUSTRALIA

DECISION

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

Mr Esteban Oreiro
v
Sydney Waste Services
(U2012/4477)

DEPUTY PRESIDENT SAMS SYDNEY, 23 MAY 2012

Application for unfair dismissal remedy - failure of applicant to attend proceedings or comply with directions - want of prosecution - application dismissed.

[1] On 27 April 2012, I dismissed this application for want of prosecution, pursuant to s 587 of the Fair Work Act 2009 (the ‘Act’). What follows are my reasons for doing so.

[2] On 31 January 2012, Mr Esteban Oreiro (the ‘applicant’) filed a claim for an unfair dismissal remedy, pursuant to s 394 of the Act. The applicant claimed that he was unfairly dismissed by Sydney Waste Services Pty Ltd (the ‘respondent’) on 16 January 2012. The respondent insists that the applicant resigned on 13 January 2012. It will be immediately apparent that, on either version of events, the application was lodged outside the statutory 14 day time period required by s 394(2) of the Act.

[3] However, the respondent, in its F3 reply to the application, raised three further jurisdictional objections to the application being accepted by Fair Work Australia (FWA); namely, that the applicant:

• had not completed the relevant minimum employment period required by s 383 of the Act in that the respondent is a small business employer;



• had been employed for 8 months;



• was at all times a casual employee; and



• had not been dismissed, but had left the respondent’s employ entirely of his own accord.

[4] The applicant’s lack of diligence in prosecuting his claim was evident from an early stage in the processing of his application in FWA. He failed to attend a conciliation of his claim on 22 February 2012. Directions for the filing of evidence and submissions in reply to the respondent’s jurisdictional objections were issued, reissued and ignored by the applicant. An FWA officer’s file note of 29 March 2012 reveals a phone request for him to call FWA regarding his noncompliance with directions. The phone call was not returned.

[5] I note that the respondent has filed submissions and evidence in support of its jurisdictional objections. Although it is not strictly necessary for the purposes of this decision to make findings on this material, it can be observed that prima facie the applicant’s case will face a number of significant hurdles in respect to both jurisdiction and merits.

[6] The matter was allocated to me for hearing on 20 April 2012. However, on the day before the hearing Mr E Zizer, the respondent’s General Manager, advised my Chambers that he had received a text message from the applicant which disclosed that he was in Uraguay and it would obviously not be possible for him to attend the hearing.

[7] The next day, Mr Zizer said that the applicant had been constantly texting the respondent over a number of weeks, but had given no indication of his intentions in respect to his unfair dismissal claim. Mr Zizar demonstrated that the applicant had indeed been texting the respondent from Uraguay, as that country’s area code was prefixed in the text message, which read as follows:

‘Tanks resived all my paid slips. now is all done no more to ask. is this mater end. Good look and tanks for paid my super and tax. Estaban oreiro [sic]”. (sent 9 April 2012 at 12:07pm).

[8] Following the proceedings, my Associate subsequently advised the parties as follows:

‘A. On 20 April 2012, I conducted a Jurisdiction Hearing in respect to the above application. The applicant did not attend and was not able to be contacted. Arising from the Hearing, I issue the following directions:

1. The applicant is to file and serve on Fair Work Australia (‘FWA’) and the respondent any evidence, submissions and other materials by 4pm, Friday 27 April 2012 setting out why he was not available to prosecute his case at FWA on 20 April 2012;

B. Failure by the applicant to comply with Direction [1] (above), will result in his unfair dismissal application (U2012/4477) being dismissed by FWA for want of prosecution’.

Unsurprisingly, there was no compliance with the directions above.

CONSIDERATION

[9] In a recent decision - Carter v The Hanna Group Pty Ltd[2011] FWA 31 - I dealt with the principles to be applied by FWA in the circumstances of an applicant not prosecuting his/her unfair dismissal claim with due diligence. At paras [3] to [6] I said:

[3] At this juncture, it is trite to observe that Courts and Tribunals must always adopt a cautious and careful examination of the facts and circumstances of a particular case when considering whether to dismiss a substantive application for want of prosecution by a defaulting party. In General Steel Industries Inc v Commissioner for Railways (NSW) and others (1964) 112 CLR 125, Barwick CJ held that the jurisdiction to terminate an action summarily, for want of a cause of action by the plaintiff, was to be sparingly employed and ought not to be used, save where the lack of the cause of action was clearly demonstrated. At pages 128 and 129 his Honour said:

The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to Order 26, r. 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “be manifest that to allow them” (the pleadings) “to stand would involve useless expense”.

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or “so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument”; “so to speak apparent at a glance”.

As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same.

[4] Mason J said in Kioa v West (1985) 49 CLR 550 at 582:

It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.

[5] In Australian Railways Union; Ex parte Public Transport Corporation (1993) 117 ALR 17, the High Court, in observing the powers conferred on the Australian Industrial Relations Commission, said at pages 23 and 24:

But the wide scope given to the Commission in determining the relief which it will give does not absolve it from an obligation to observe the rules of procedural fairness in exercising its arbitral function. In Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd ((1989) 167 CLR 513 at p519) this Court pointed out that it was well settled that the Conciliation and Arbitration Commission was bound to act judicially and that the Commission, as its successor, is bound to do likewise. The Court went on to point out that one aspect of the duty to act judicially is the duty to hear a party and to allow him or her a reasonable opportunity to present his or her case and, coupled with that duty, is the duty to consider the case put. And in Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty. Ltd ((1993) 67 ALJR 389, at p390; 112 ALR 193, at p194) the Court said that the Commission has a duty in considering an application to afford a party a reasonable opportunity to allow his or her case to be put.

[6] I glean from these judgements that the principles to be considered by Fair Work Australia (FWA) in circumstances where a defaulting party, whose application is being considered for peremptory dismissal as a result of a failure to attend proceedings may be summarised as follows:

(a) the defaulting party must be given an opportunity to explain the reasons why the Tribunal should not dismiss his/her claim for a failure to attend the proceedings;

(b) the reasons (if any are given) must be considered in the context of ensuring the proper administration of justice and fairness to both parties. In my view, this is particularly so in a s 394 unfair dismissal application, given the emphasis in the Act of ensuring ‘a fair go all round’ as referred to in s 381(2) of the Act. That section is expressed as follows:

(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.

(c) the defaulting party should be made aware that an application to dismiss his/her substantive application is to be considered by the Tribunal;

(d) the defaulting party should be warned that a failure to attend the hearing of such an application, without a reasonable explanation, may result in the substantive application being dismissed; and

(e) the Tribunal should ensure that all reasonable steps are taken to give an absent party every opportunity to present themselves for hearing: See Grimshaw v Dunbar (1953) 1 All ER 350 at 355.

[10] There is no doubt in my mind that this application should be dismissed for want of prosecution. The applicant has done nothing to prosecute his claim - except for the filing of the originating application. This is hardly sufficient. In these circumstances, it is my opinion that the applicant has no intention of pursuing his claim of unfair dismissal. Moreover, it would not be in the interests of ensuring a ‘fair go all round’ as required by s 381(2) of the Act, for the respondent to be burdened by an unresolved and highly suspect claim against it.

[11] Further, the last text message from the applicant (see para [7] above) would appear to indicate his own view that any claims against the respondent are settled. I can comfortably draw the conclusion that the applicant has simply abandoned his unfair dismissal claim. In addition, there has not been a single communication from the applicant to FWA in respect to his failure to comply with directions or attend the Tribunal proceedings. Such conduct is disrespectful, irresponsible and utterly unacceptable.

[12] I confirm that this application is dismissed for want of prosecution. An order to that effect will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Applicant: No appearance

Respondent: Mr E Zizer, General Manager, for the Respondent.

Hearing details:

2012
SYDNEY
20 April

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