Mr Harjinder Singh v Visy Industries Australia Pty Ltd T/A Visy

[2020] FWC 4793

[2020] FWC 4793

FAIR WORK COMMISSION

DECISION

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

Mr Harjinder Singh
v
Visy Industries Australia Pty Ltd T/A Visy
(U2020/9391)

COMMISSIONER CIRKOVIC MELBOURNE, 7 SEPTEMBER 2020

Application for an unfair dismissal remedy – non-compliance of Applicant – application dismissed.

[1] On 8 July 2020, Mr Harjinder Singh (Applicant) lodged an application under section 394 the Fair Work Act 2009 (the Act), seeking a remedy in relation to his dismissal from employment with Visy Industries Australia Pty Ltd t/a Visy (Respondent). The Applicant said that he commenced employment with the Respondent on 9 September 2020 and that he was notified of his dismissal on 3 July 2020, with it taking effect 6 July 2020.

[2] On 31 July 2020, the Respondent lodged an objection on the basis of genuine redundancy. Despite this objection, the Respondent agreed to participate in a conciliation.

[3] The matter was listed for conciliation by telephone on 3 August 2020 however the matter was not able to be resolved. The matter was subsequently allocated to me for determination.

[4] On 11 August 2020, my chambers issued a notice listing for a case management conference to take place on 20 August 2020.

[5] On 20 August 2020, my chambers made several attempts to contact the Applicant by telephone on the contact numbers nominated on the application. He was not able to be reached at either number. A voicemail was left alerting him to the conference and the obligation to attend.

[6] On the same day, my chambers issued to the parties the following:

•  directions timetabling this matter towards a hearing on the objection and merits of the application; and

•  a letter to the Applicant noting his non-attendance at the case management conference and requesting an explanation within 7 days.

[7] The Applicant provided no explanation for his non-attendance at the case management conference.

[8] On 28 August 2020, my chambers issued a notice of listing for for a non-compliance hearing on 2 September 2020.

[9] On 2 September 2020, my chambers attempted to contact the Applicant by telephone on relevant telephone numbers but was not able to be reach him. A voice message was left requesting he contact the Fair Work Commission (Commission) urgently.

[10] On 3 September 2020, the Applicant was due to file material in accordance with the directions issued on 20 August 2020. The Applicant failed to file any material.

Powers to dismiss applications

[11] Section 399A of the Act describes some of the circumstances upon which an application for an order under Division 4 of the Act can be dismissed. Section 399A provides as follows:

“ (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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).

(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.”

[12] The power of the Commission to summarily dismiss an application should be used sparingly and approached with caution. As Barwick CJ observed in General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others, 1  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’.2

[13] His Honour continued:

‘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. Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 where he says (at p.91):

“A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.”

Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (at p 84), in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.’ 3

[14] Other than lodging his application and participating in the conciliation before a conciliator, the Applicant has failed to participate in the prosecution of his case. Despite directions to do so, he has failed to file any material, he has failed to attend a non-compliance hearing and case management conference at my direction and he has not provided any explanation for these failures. The Applicant has been given adequate opportunity to participate in the conduct of his matter and he was on notice of the consequences he would face should he fail to comply and fail to attend the scheduled hearing. Despite being put on notice, the Applicant did not take any steps to further his application. The Applicant has failed to comply with any direction of the Commission relating to the application. He has provided no explanation for the various instances of his failure to comply with directions.

[15] On the basis of the material before me, I am satisfied, for the reasons earlier stated, that the Applicant has unreasonably failed to attend hearings held by the Commission in relation to his application and he has unreasonably failed to comply with directions of the Commission relating to his application. I am persuaded in the circumstances that I should exercise my discretion pursuant to s.399A of the Act to dismiss the Applicant’s application.

[16] An order will be issued separately giving effect to this decision.

COMMISSIONER

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 1 (1964) 112 CLR 125.

 2   Ibid 128-9.

 3   Ibid 129-130.