Mr Jason Morley v Collins Transport Adelaide
[2019] FWC 50
•4 JANUARY 2019
| [2019] FWC 50 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Mr Jason Morley
v
Collins Transport Adelaide
(U2018/11477)
DEPUTY PRESIDENT ANDERSON | ADELAIDE, 4 JANUARY 2019 |
Application for an unfair dismissal remedy – employer’s application to dismiss under section 399A – unreasonable non-compliance – application dismissed
[1] The facts are set out in my decision of 2 January 2019 1 in which I adjourned the respondent employer’s application under section 399A of the Fair Work Act 2009 (FW Act) that Mr Morley’s unfair dismissal claim be dismissed.
[2] In that decision I found that Mr Morley had unreasonably failed to attend hearings and comply with directions of the Commission. I declined however to exercise my discretion to dismiss the section 394 application at that time, pending the applicant being provided a further opportunity to satisfy me that he was intending to actively prosecute his application in a manner required of an applicant under Part 3-2 of the FW Act. My decision and further Directions of 2 January 2019 2 adjourned proceedings on the employer’s application until a further hearing on 4 January 2019.
[3] The further Directions I issued were as follows:
1. Mr Morley’s application under section 394 of the FW Act and the employer’s application to dismiss under section 399A of the FW Act are relisted for hearing, by telephone, at 11.00am (ACDT) Friday 4 January 2019.
2. Mr Morley is directed to appear at that hearing in person.
3. Mr Morley is directed, at that hearing, to provide, on oath, evidence of:
a. his intention to prosecute his application consistent with the obligations of an applicant including evidence of his availability to attend specific hearing dates that may be set down by the Commission for future procedural hearings on his claim and / or hearings to determine the merits of his claim;
b. his availability to comply with other directions of the Commission that may be issued including directions to prepare and serve witness statements (including his own statement) in advance of a hearing of the merits of his claim and produce documents (if any) in support of his claim; and
c. specific dates in the months of January 2019, February 2019 and March 2019 when he will be available to meet each of the aforementioned obligations.
4. In the absence of Mr Morley appearing in person at the hearing on 4 January 2019 and providing evidence on oath consistent with these directions I will for the reasons set out in this decision and (subject to hearing anything further from Mr Morley, his representative or the employer) dismiss Mr Morley’s application under section 399A of the FW Act.
[4] These further Directions required Mr Morley’s personal participation at the 4 January 2019 directions hearing conducted by telephone (not his in-person attendance at a particular location). They did not preclude Mr Morley being represented at those or other proceedings. I so directed given the history of this matter, including three prior interlocutory proceedings where on two of those occasions no appearance had been made by or on behalf of Mr Morley and when on 2 January 2019 Mr Morley’s partner (who had phoned in at his request to advise of his unavailability) was unable to provide details or assurances of his future availability.
[5] At the resumed proceedings on 4 January 2019 Mr Morley failed to attend or be represented at the appointed time (11.00am ACDT). I am satisfied that a Notice of Listing had been sent to the parties (including to Mr Morley’s email address) on 2 January 2019 together with my decision and further Directions of that date. On 4 January 2019 my Associate endeavoured to phone Mr Morley at the scheduled commencement of proceedings and left a message requesting an urgent return call. None was received. The employer appeared. I commenced proceedings at 11.05am (ACDT). An audio record of proceedings was made.
[6] The employer again pressed its section 399A application. At the conclusion of proceedings I indicated that I would, in all the circumstances, grant the employer’s application and deliver written reasons in due course, which I now do.
[7] Mr Morley has unreasonably failed to attend hearings on his application and has also unreasonably failed to comply with directions of the Commission relating to his application, including my further Directions of 2 January 2019. He has had multiple opportunities to rectify his non-compliance but has not done so. He has been put on specific notice that his application may be dismissed without a merits hearing but has nonetheless continued in non-compliance with directions.
[8] As indicated in my decision of 2 January 2019, whilst I am sensitive to the circumstances which appear to surround Mr Morley’s unavailability (driving trucks in remote and regional Australia as part of his fresh employment) Mr Morley has failed to meet the minimum obligations required of a litigant.
[9] Grounds (a) and (b) of section 399A of the FW Act are made out.
[10] On 2 January 2019 I declined to exercise my discretion under section 399A pending a final opportunity being provided to Mr Morley to participate in proceedings on his application. That opportunity has been provided. He has not availed himself of that opportunity. Nor did anyone on his behalf appear on 4 January.
[11] The options now available to the Commission in these circumstances, are to either issue Directions preparing the matter for hearing (such as setting down a hearing date, hearing location and dates for the lodgement of materials by Mr Morley and then the respondent employer) in the hope that the dates are capable of being complied with by Mr Morley (and duly complied), or to exercise my discretion to dismiss the unfair dismissal proceedings on the employer’s application.
[12] The difficulty with the former course is that Mr Morley has failed to meet the minimum obligations required of a litigant and not satisfied me either directly or through a representative of his intention to actively and attentively prosecute his claim in accordance with any further directions that I may issue.
[13] Having been given multiple opportunities to do so and with non-compliance under section 399A having been made out, the appropriate course is to grant the employer’s application under section 399A. I do so for the reasons set out in my decision of 2 January 2019 and in this Decision.
[14] Accordingly, in accordance with section 399A of the FW Act the application made by Mr Morley is dismissed. I issue an Order to that effect in conjunction with the publication of this Decision.
DEPUTY PRESIDENT
Appearances:
No appearance for the Applicant
E. Rorie, for the Respondent
Hearing details:
2019.
Adelaide; by telephone.
4 January.
Printed by authority of the Commonwealth Government Printer
<PR703611>
1 [2019] FWC 11
2 [2019] FWC 11 and Directions, Deputy President Anderson, 2 January 2019
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