Mr Gavin Bessant v Graham Burley T/A G J Burley Pty Ltd

[2011] FWA 3002

[2011] FWA 3002

FAIR WORK AUSTRALIA

DECISION

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

Mr Gavin Bessant
v
Graham Burley T/A G J Burley Pty Ltd
(U2010/14794)

COMMISSIONER STANTON NEWCASTLE, 16 MAY 2011

Dismissal of Matter - Failure to Appear.

[1] The applicant in this matter lodged an application for unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 on 6 December 2010. The application included a residential address, home telephone number and a mobile telephone service number.

[2] Prior to retaining legal representation on or about 21 March 2011, the respondent also elected to be served by post.

[3] The applicant was given dispensation from the prescribed application filing fee.

[4] The matter was subsequently allocated to Conciliator Trenerry for Conciliation. On 11 December 2010 a Notice of Listing was forwarded by post to both the applicant and the respondent listing the matter for Conciliation by telephone at 9.15am on 5 January 2011. That notice specifically stated that although the parties were not required to attend Fair Work Australia, they were required to forward contact telephone numbers for the telephone Conciliation.

[5] Both parties participated in the Conciliation Conference on 5 January 2011, however settlement was unsuccessful.

[6] Conciliator Trenerry wrote to both parties on 5 January 2011 and advised that as the matter had been forwarded to a Member of Fair Work Australia, they should take some time to familiarise themselves with the requirements of a formal proceeding. The Conciliator also provided general advice concerning Directions and the process to be followed regarding the preparation of written submissions and written witness statements.

[7] In the correspondence dated 5 January 2011, Conciliator Trenerry confirmed that it was "critically" important that the parties advise Fair Work Australia of any changes in address and, in the event of non compliance with Directions, the application may be dismissed.

[8] A Notice of Listing stating the matter had been set down for Hearing in Newcastle on 22 March 2011 with Directions requiring the production of written submissions and witness statements was issued and posted to the relevant address of each party on 20 January 2011. The respondent was required to file first by no later that 8 February 2011 and the applicant by no later than 1 March 2011. Both parties failed to comply with these Directions.

[9] On 16 March 2011, Fair Work Australia notified the parties the matter was listed for Hearing in Newcastle not before 10.00am on 23 March 2011. The relevant correspondence, which included the original Directions issued on 20 January 2011, was also forwarded to the parties by post.

[10] The applicant failed to attend the Hearing on 23 March 2011. Amended Directions were subsequently issued for the respondent to comply no later than 6 April 2011 and the applicant no later than 20 April 2011. A copy of the Amended Directions was subsequently posted to the parties. On this occasion, the relevant correspondence was sent to the applicant by express post.

[11] The respondent filed written submissions and witness statements on 6 April 2011.

[12] Simply stated, the respondent, an Australia Post mail contractor contended the applicant was engaged as a subcontractor and the contract between the applicant and respondent was terminated due to lack of performance. It was also asserted that a worker's compensation claim made by the applicant against the respondent had recently been denied by the insurer on the grounds that the applicant was not an employee.

[13] The applicant failed to file any material in support of his case pursuant to the Directions made on 23 March 2011 nor did he make a formal application for an extension of time in which to do so or, give a reason for his non-compliance.

[14] On 28 April 2011, the matter was listed for Conference and Hearing in Newcastle at 10.00am on 3 May 2011. The Notice of Listing was forwarded to the applicant that day by express post. The applicant failed to attend Fair Work Australia as required on 3 May 2011 and did not, either prior to the Hearing or subsequent to it, provide the Tribunal with any explanation for his failure to attend.

[15] Correspondence sent to the applicant on 23 March and 28 April 2011 by express post has not been returned to Fair Work Australia.

[16] Fair Work Australia has been unable to make contact with the applicant by mail to his residential address or through the home and mobile telephone contact numbers provided. In that regard, my Associate left a message on the applicant's home phone on 27 April 2011 requesting him to call my chambers. Similarly, a phone call was made and an SMS was also sent to his mobile telephone service the same day via the applicant's voicemail service.

[17] In summary, the applicant has been afforded ample opportunity to put his case forward. No response has been received from the applicant since the initial telephone Conciliation on 5 January this year. As at the date of this Decision, the applicant has not filed any material nor, according to Fair Work Australia's records, has he made any contact to explain himself or seek an extension of time to comply with the Directions issued.

[18] The applicant’s conduct represents an abuse of process and is inconsistent with the provisions of the Act which state, in part under s.381(b)(i), that an object of Part 3-2 , Unfair Dismissal is to establish procedures that "are quick, flexible and informal". Moreover, the applicant has been afforded "a fair go" as contemplated by s.381(2).

[19] Sections 577 and 587 of the Act also provide:

577 Performance of functions etc. by FWA

FWA must perform its functions and exercise its powers 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.

Note: The President also is responsible for ensuring that FWA performs its functions and exercises its powers efficiently etc. (see section 581).

587 Dismissing applications

(1) Without limiting when FWA may dismiss an application, FWA 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) ...

(3) FWA may dismiss an application:

(a) on its own initiative; or

(b) on application.

[20] In the circumstances, and in accordance with s.587 (3)(a), I hereby dismiss the application of Gavin Bessant in matter number U2010/14794. An Order [PR509545] to that end has been issued in conjunction with this Decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR509544>