Mr Inderjit Singh v Toll Transport Pty Ltd
[2024] FWC 2594
•17 OCTOBER 2024
| [2024] FWC 2594 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Inderjit Singh
v
Toll Transport Pty Ltd
(U2024/6485)
| DEPUTY PRESIDENT CROSS | SYDNEY, 17 OCTOBER 2024 |
Application for an unfair dismissal remedy
Mr Inderjit Singh (the Applicant) was employed by Toll Transport Pty Ltd (the Respondent) as a truck-driver prior to the termination of his employment on 16 May 2024. The Respondent alleges that the Applicant abandoned his employment. The Applicant filed an application for an unfair dismissal remedy on 6 June 2024 (the Application).
On 7 August 2024, my Chambers issued the following directions (the Directions) and listed the matter for Hearing. The Directions were as follows:
Listing Details:
The above matter is listed for Hearing, in person, before Deputy President Cross at:
10:00 AM
Friday, 20 September 2024
Fair Work Commission
Terrace Tower
80 William Street
East Sydney
FINAL DIRECTIONS
1. Mr Inderjit Singh (the Applicant) is directed to file with the Fair Work Commission, and serve on Toll Transport Pty Ltd (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of the application in this matter by 4pm on 20 August 2024.
2. The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by 4pm on 3 September 2024.
3. The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 10 September 2024.
4. Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4pm on 3 September 2024.
Notes:
a) If you wish to vary these directions, you can make an application to do so in writing directly to the chambers of Deputy President Cross at: [email protected]
b) The Applicant and the Respondent should attempt to resolve this matter prior to the time for compliance with these requirements to minimise their costs in this matter.
c) Any request for an extension of time for the filing of materials, or for an adjournment of the arbitration hearing, must be made as soon as practicable and must be based on substantial grounds. Noncompliance with directions will not otherwise be tolerated.
d) Parties should liaise as to the provision and use of court books, exhibit bundles and authority bundles. Any materials must be supplied to the Chambers of Deputy President Cross 3 days prior to the listing.
The Applicant failed to comply with the first direction and on 21 August 2024, my Chambers sent the following email with respect to the non-compliance:
Dear Parties,
I note the Applicant has not complied with Direction [1] of the Commission’s Directions issued on 7 August 2024 (Listing Directions). Please see below Direction:
1. Mr Inderjit Singh (the Applicant) is directed to file with the Fair Work Commission, and serve on Toll Transport Pty Ltd (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of the application in this matter by 4pm on 20 August 2024.
The Applicant is required to email Chambers by 4:00pm on 22 August 2024 with their submissions and other materials, or otherwise advise the Commission of any request for extension, discontinuance, or other matter affecting submission.
I draw the parties’ attention to Note c) of the Listing Directions, reproduced below:
c) Any request for an extension of time for the filing of materials, or for an adjournment of the arbitration hearing, must be made as soon as practicable and must be based on substantial grounds. Noncompliance with directions will not otherwise be tolerated.
The Applicant filed his material on that same day.
On 27 August the Respondent filed two draft Form F52s. One of the F52s sought electronic communications and telephone records from the Applicant (the First F52) and the other sought medical records from the Royal Adelade Hospital (RAH) (the Second F52). On 30 August 2024, the Union responded to the First F52, confirming that they had no objections to the materials sought. On 2 September 2024, the RAH filed the sought medical records.
On 2 September 2024, the Respondent filed a further Form F52 (the Third F52), seeking email records from the Applicant. On 3 September 2024, the Union objected to the Third F52.
The First F52 was issued without objection as an Order to Produce (the First Order to Produce) by Deputy President Easton on 10 September 2024. An interlocutory hearing was held regarding the contested Third F52 and on 12 September 2024, a further Order to Produce (the Second Order to Produce) was issued by Deputy President Easton, returnable on 17 September 2024. The Second Order to Produce required production of:
1. Any document in your possession or control, electronic or otherwise, that demonstrates that you contacted the Respondent (or any of its representatives) by way of telephone between 4 April 2024 and 16 May 2024.
2. The specific telephone records referred to at paragraph 24 of your Statement filed in these proceedings on 21 August 2024, in which you claim establish that you “made contact with Toll throughout the month of April 2024”.
No material was nor has been produced to the Commission in compliance with the First and Second Orders to Produce and it is accepted by the Applicant that the failure to produce materials in response to the Orders to Produce is a failure on the part of the Applicant.
On 11 September 2024, my Chambers issued an email of noting the Applicants non-compliance with the third direction regarding reply materials. The email relevantly stated:
Deputy President Cross’ chambers are currently awaiting a response from Mr Grumley regarding the materials produced by Royal Adelaide Hospital. The Form F52s filed on 27 August 2024 will be dealt with once Mr Grumley provides a response.
I note the Applicant has not complied with Direction [3] of the Commission’s Directions issued (Listing Directions). Please see below Direction:
3. The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 10 September 2024.
The Applicant is required to email Chambers by 4:00pm this afternoon with their submissions and other materials, or otherwise advise the Commission of any request for extension, discontinuance, or other matter affecting submission.
I draw the parties’ attention to Note c) of the Listing Directions, reproduced below:
c) Any request for an extension of time for the filing of materials, or for an adjournment of the arbitration hearing, must be made as soon as practicable and must be based on substantial grounds. Noncompliance with directions will not otherwise be tolerated.
The Applicants representative responded on 12 September 2024 seeking an extension of time to file reply materials until 13 September 2024, to which the Respondent did not object.
The Applicant failed to file any material in reply by 13 September 2024. On 16 September 2024, my chambers sent a further email regarding the Applicants non-compliance. On that same day, the Respondent issued a letter seeking the matter be dismissed pursuant to s.399A(1)(b) of the Act. The Letter relevantly stated:
We refer to the above matter and hearing listed before Deputy President Cross at 10.00am on 20 September 2024.
Non-compliance with directions
On 1 August 2024, the Deputy President issued directions in these proceedings requiring the Applicant to file materials in reply by 10 September 2024.
On 12 September 2024, the Applicant sought (with the Respondent’s consent) an extension to the timeframe for filing materials in reply until 13 September 2024.
To date, no materials in reply have been filed by the Applicant, notwithstanding the directions issued by the Deputy President and notwithstanding that these proceedings are listed for hearing this Friday 20 September 2024.
The Deputy President has today provided a further opportunity for materials in reply to be filed by 4:00pm today.
Non-compliance with order for production
On 10 September 2024, Deputy President Easton issued an Order for Production on the Applicant, requiring the production of documents pertaining to the Applicant’s telephone records generally as well as the telephone records specifically identified by the Applicant in paragraph 24 of his unsigned witness statement filed in the proceedings on 21 August 2024.
The production was ordered to take place by 13 September 2024.
It appears to the Respondent that the Applicant has not complied with this Order for Production.
Applicant’s whereabouts
During an interlocutory hearing in these proceedings on 12 September 2024, the Applicant’s representative indicated that the Applicant was presently in India, making it difficult to obtain instructions pertaining to a separate Order for Production that was ultimately issued by Deputy President Easton on 13 September 2024 (last week).
The Applicant’s representative has now provided written documentation to the Respondent identifying that the Applicant has been receiving some treatment in India between 10 September 2024 and 13 September 2024. The Respondent has serious concerns that the Applicant will not present for the hearing presently scheduled for 20 September 2024 given the Applicant’s apparent whereabouts.
Application to have the proceedings dismissed
Having regard to the history of these proceedings, which include the fact that the Applicant’s employment itself ceased following a failure to communicate with his employer, the Respondent considers it unlikely that the Applicant will file materials in reply by 4:00pm today as required.
If the materials in reply are not filed by 4:00pm today (as the Respondent anticipates), then having regard to non-compliance with both timetabling directions and the Order for Production identified above, as well as the fact that the Applicant appears to have departed the country despite an imminent hearing, the Respondent respectfully requests the Deputy President to dismiss the proceedings pursuant to section 399A(1)(b) of the Fair Work Act 2009.
The Respondent is available to address these matters before the Deputy President, should the Deputy President wish to hear from the parties further.
In response to the Respondent’s letter, the Applicant sought an adjournment and further extension of time. The email from his Representative was as follows:
In reference to the correspondence below, we note that an extension was sought by the applicant to file all evidentiary materials in reply that were to be relied upon in matter 2024/6485 by COB Friday 13 September 2024 which did not occur.
The applicant’s representative confirmed late Friday 13 September 2024 that the applicant is currently in a treatment centre in India seeking assistance with health matters.
The applicant has not been in a position to comply with the following directions.
1. File and serve reply evidence by Friday 13 September 2024.
2. Provide the documents sought in the notice to produce issued 10 September 2024.
3. Provide the documents sought in the notice to produce issued 12 September 2024.
The applicant will also not be in a position to attend the hearing scheduled for Friday 20 September 2024.
Therefore, the applicant will be required to seek an extension on the natters mentioned above by way of further directions being issued.
The applicant’s representative will obtain further instructions as to when Mr Singh may be in a position to comply with any directions that may be issued.
In response to the respondent’s correspondence issued earlier today the applicant would obviously object to any directions being issued that the proceedings be dismissed.
The applicant’s representative would welcome any opportunity to address these matters further with the Deputy President and the respondent’s representatives if allowed the opportunity to do so.
I rejected the adjournment request. The matter had been listed since early August and the Applicant decided to leave the country, putting the Respondent in an exceptionally difficult position. The Applicant’s Representative filed a medical certificate which was dated 13 September 2024 but only produced to Chambers on 18 September 2024, 2 days before the Hearing of the matter.
A Hearing was conducted on 20 September 2024. The Applicant failed to attend but his Representative appeared on his behalf. The Applicants representative sought an extension of time to provide a response to the s.399A Application.[1]
The Applicant filed their closing submissions on 23 September 2024, and the Respondent filed their closing submissions in reply shortly thereafter.
Applicants Closing Submissions
The Applicant did not dispute that he had failed to comply with a number of directions that were issued by my Chambers, as well as a further direction issued by Deputy President Easton.
The Applicant provided a certificate noting that he was in a treatment facility in India from at least 10 September 2024 and 13 September 2024. The difficulties in interpreting the Medical Certificate were traversed at the Hearing:[2]
MR IZZO: Thank you, Deputy President. Just in relation to the certificate if I might, because I think I do need to clarify this before addressing you on the application, I am having difficulty understanding the effect of the certificate.
THE DEPUTY PRESIDENT: You're not the only one.
MR IZZO: And I think I would be greatly assisted if Mr Grumley could perhaps shed any light on what the certificate is purporting to say, because I have two possible interpretations what it might mean, but I don't know, and Mr Grumley is the one who has got closest contact with the applicant, so he may be able to explain what exactly the certificate is saying.
THE DEPUTY PRESIDENT: Do you have the original?
MR GRUMLEY: No, that's all. I received that via a text message that I forwarded on to Mr Izzo. That's all I have at this stage.
THE DEPUTY PRESIDENT: What does it say? I can tell you what I think it says. I think it says that he was seen on 10 September, or admitted, until, notwithstanding that it says 'since', 13 September 2024 until 10.15 am on that day.
MR GRUMLEY: That's correct.
THE DEPUTY PRESIDENT: Is that a correct understanding?
MR GRUMLEY: That is my understanding as well. I am just a bit mindful we are on record, what I am about to say, any sort of ramifications for the applicant. My understanding is he's still at that place as mentioned on the certificate. He was going to provide me with further information and hasn't been able to do that. Obviously there might be some sort of restrictions on sharing information. I did manage to get that one, but that's all I have been able to get. I've had the odd text message and the odd email come through, but that's all. I had a brief conversation with him, I think it was Friday, and again Monday this week I think it was, but other than that that's all I have been able to obtain from the applicant.
THE DEPUTY PRESIDENT: So notwithstanding that it nominates two dates and it nominated until 10.15 am you say the treatment is continuing?
MR GRUMLEY: That's the instruction I have been given, yes, that the applicant is still at that location, that facility. I don't have any certificate to back that up, but that's the only instruction that I had with (indistinct), the discussion I had. He could be there for some time I believe. It's just difficult getting in touch with him. Obviously he's overseas. Probably restrictions on having phones and things in that facility. So it's not without its difficulties to obtain information, Deputy President.
THE DEPUTY PRESIDENT: You know it to be the case that you can't have phones in that facility?
MR GRUMLEY: He told me that he has difficulties. Yes, he did tell me that he has difficulties to remain in contact while he's there.
THE DEPUTY PRESIDENT: So he was on a phone when he told you he had difficulties. So it's not precluded.
MR GRUMLEY: Yes. The only time he could speak, and he might have a certain time of the day when he's able to speak, but other than that he's pretty much been uncontactable.
The Applicant’s representative also submits that Mr Singh is not able to provide proper instructions other that he would still seek to pursue a remedy from the unfair dismissal. They further submit that the Applicant is still overseas in a treatment facility and appears to be unable to properly engage due to his current situation and his health concerns.
In closing the Applicant submits that fairness between Mr Singh and other persons in a similar situation would require that the application should not be dismissed particularly due to factors that are outside of his control.
The Applicant submitted that the fact that he has not complied with all of the directions that were issued by the Commission is not completely the fault of the Applicant, and the prejudice he would suffer as a result of the dismissal of the Application is too large to justify such dismissal. The Commission should consider the factors of fairness along with the objects of s.381 of the Act, so as to provide the Applicant with an opportunity to pursue his Application.
The Commission ought not dismiss the Application when there is a real question to be answered based on the facts of the matter and the law, and the power of the Commission to dismiss an application is one that should be used sparingly and approached with caution. Fairness between the Applicant and other persons in a similar situation would require that the Application should not be dismissed because other persons who are forced to leave their employment in similar circumstances should not be prevented from seeking a remedy for unfair dismissal.
Respondents Closing Submissions
The Respondent submitted that despite the Applicant’s characterisation of the non-compliance arising as a result of factors outside the Applicant’s control, the Applicant was capable of giving instructions to file the Form F2 and prepare a witness statement in the proceedings.
The Respondent submitted that the Applicant appears to have made a conscious decision to travel overseas, whilst the proceedings were underway, and a hearing date scheduled. The Respondent submits that the Applicant clearly had means to contact his representative and has not contacted his representative as regularly as he should have if he genuinely wished to progress the proceedings.
The Respondent submits that the conclusion should be drawn that unreasonable acts or omissions have given rise to three instances of non-compliance that warrant the dismissal of the proceedings.
The Respondent notes that the Applicant has requested an extension of time to adjourn the proceedings to allow the Applicant to pursue his case, however, no detail has been given as to how long the adjournment should be. Such an indefinite adjournment is inconsistent with the exercise of the Commission’s functions under sections 381 and 577 of the Act.
Relevant Legislation and Authorities
Section 399A of the Act provides as follows:
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.
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
The Commission has the discretion to dismiss an unfair dismissal application under s.399A of the Act on application by an employer, in circumstances where there has been an unreasonable failure to attend a conference or a hearing held by the Commission in relation to the application, or unreasonable non-compliance with directions of the Commission.
The Explanatory Memorandum to the Fair Work Amendment Bill 2012, which amended the Act to include the provision, said in relation to s. 399A applications, that the intention of the provision was “to address the small proportion of applicants who may pursue claims in an improper and unreasonable manner...In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant.”[3]
In Adrian Whittaker v Total Harvesting Pty Ltd T/A Total Harvesting, (“Whittaker”)[4] Deputy President Clancy summarised the relevant principles in considering s.399A, drawing on a decision of the Full Bench of the Australian Industrial Relations Commission in Ghalloub v Aon Risk Services Australia Limited, (“Ghalloub”)[5]. The Deputy President summarised the relevant principles as follows:
“The role of case management was discussed by the Full Bench of the Australian Industrial Relations Commission in Ghalloub v Aon Risk Services Australia Limited (Ghalloub). In summary, that decision outlined the following principles:
1.the starting point of any consideration of an application to dismiss is that an applicant is entitled to have his or her case heard;
2.directions play an important role in case management;
3. accepting the importance of case management principles, only in extreme circumstances should a party be shut out from litigating an issue which is fairly arguable;
4. the circumstances of each case is central;
5. a history of non-compliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period of time is relevant;
6. continuing non-compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.
The sixth principle outlined in Whittaker directs focus on the circumstances of the Respondent, which are undoubtedly a relevant consideration arising from the objects of the Act. As the Full Bench observed in Viavattene v Health Care Australia (“Viavattene”):[6]
“... It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).”
Section 381 of the Act provides:
Object of this Part
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(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.
Note: The expression "fair go all round" was used by Sheldon J in in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.
Consideration
The Applicant failed to comply with multiple directions and orders of the Commission, being:
(a)The failure to file and serve reply materials in accordance with the Directions;
(b)The failure to produce materials in response to the First and Second Orders to Produce; and
(c) The failure to attend the Hearing on the matter on 20 September 2024.
While the Applicant has submitted that there was no obligation to actually file and serve reply materials, a failure to put in issue any part of the Respondent’s case would seriously affect whether the Applicant’s case would be able to be described as “fairly arguable”. I also note as outlined in paragraph [10] above that the Applicant in fact sought an extension of time to file his reply materials.
I consider it is apparent from the materials that the failure by the Applicant to file and serve his reply materials resulted from his leaving Australia some time prior to 10 September 2024, notwithstanding that he had been aware since 7 August 2024 that his Application would be heard on 20 September 2024.
I note that the starting point of any consideration of a s.399A Application is that the
Applicant is entitled to have his case heard, and I am willing to assume for the purposes of
determining the s.399A Application that the Applicant has an arguable case in his unfair
dismissal application.
The history of this matter, however, discloses multiple examples of the Applicant failing to follow directions and orders of this Commission. On two separate occasions the Applicant has unreasonably failed to comply with directions and orders, and on one occasion unreasonably failed to attend a hearing.
The Applicant has been provided with an opportunity to present his case, and the Commission is not required to ensure that the Applicant took advantage of the opportunities presented. As Deane J said in Sullivan v Department of Transport:[7]
“. . . it is important to remember that the relevant duty of the Tribunal is to ensure that
a party is given a reasonable opportunity to present his case. Neither the act nor the
common law imposes on the Tribunal the impossible task of ensuring that a party takes
the best advantage of the opportunity to which he is entitled.”
Justice Kirby made an observation to similar effect in Allesch v Maunez, regarding proceedings in the Family Court of Australia, but equally apposite to proceedings before the Commission, when he observed:[8]
“It is a principle of justice that a decision maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made . . .
. . . it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests.
Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment.”
The Directions provided for case management of the Applicant’s unfair dismissal application to ensure compliance with the objects of Part 3 – 2 of the Act for quick, flexible and informal procedures that address the needs of employers and employees. The history of the Applicant’s non-compliance with those directions clearly indicates an unwillingness on the Applicant’s part to have the matter ready for trial within an acceptable period of time. In fact, the Applicant cannot nominate a time when he would be available for his matter to be heard.
The Respondent has throughout appropriately sought to ensure the Applicant’s compliance with all directions issued. That has without doubt resulted in unnecessary expense to the Respondent. It would be unfair to the Respondent to allow these protracted proceedings to continue.
In the circumstances of this case, it is appropriate that I exercise my discretion to dismiss the Applicant’s unfair dismissal application pursuant to s.399A of the Act as sought by the Respondent.
Conclusion
For the reasons outlined above, I have decided to grant the application by the Respondent and dismiss the Applicant’s s.394 application pursuant to s.399A(1)(b) of the Act.
An order dismissing the application will be issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
Mr A Grumley, on behalf of the Applicant.
Mr L Izzo, on behalf of the Respondent.
Hearing details:
20 September 2024.
Sydney.
In-person.
Final submissions
Applicant closing submissions filed on 23 September 2024.
Respondent closing submissions filed on 24 September 2024.
[1] Transcript PN129.
[2] Transcript PN20-34.
[3] Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161-163].
[4] [2018] FWC 1583, at [24]; See also Ingui v MSS Security Pty Ltd [2018] FWC 2201, decision of Masson DP.
[5] Print PR956665, 21 March 2005, Giudice J, Hamilton DP and Larkin C.
[6] 4 [2013] FWCFB 2532, at [39].
[7] (1978) 20 ALR 323 at 343.
[8] (2000) 203 CLR 172. at [35], [38]-[40].
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