Mr Martin Campbell v Flexi Group Ltd T/A Flexi Rent Capital
[2012] FWA 9953
•28 NOVEMBER 2012
[2012] FWA 9953 |
|
DECISION |
Fair Work Act 2009
s 394 - Application for unfair dismissal remedy
Mr Martin Campbell
v
Flexi Group Ltd T/A Flexi Rent Capital
(U2012/12678)
DEPUTY PRESIDENT SAMS | SYDNEY, 28 NOVEMBER 2012 |
Application for unfair dismissal remedy - failure of applicant to attend proceedings or comply with directions - warned of consequences - application dismissed for want of prosecution.
[1] On 27 August 2012, Mr Martin Campbell (‘the applicant’) filed a claim for an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (‘the Act’). The applicant claimed he was unfairly dismissed by FlexiGroup Ltd (‘the respondent’) on 9 August 2012. It will be immediately apparent that the application was lodged outside the statutory 14 day time period set out in s 394(2) of the Act. However, on 23 November 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] The applicant failed to attend a conciliation of his claim on 13 September 2012. On 4 October 2012, directions were issued by Fair Work Australia (‘FWA’) requiring the applicant to file evidence and submissions in reply to the respondent’s jurisdictional objection by 19 October 2012 for a hearing on 9 November 2012. An FWA officer’s file note of 4 October 2012 reveals that a detailed telephone message was left with the applicant outlining the Notice of Listing and the relevant directions. This phone message was not returned. On 19 October 2012, an email from the applicant was received by the FWA Unfair Dismissal Team requesting that his filing date be extended until 30 October 2012, citing the illness of a relative in Western Australia. This request was granted.
[3] On 19 October 2012, FWA issued amended directions for the applicant to file evidence and submissions in reply to the respondent’s jurisdictional objection by 30 October 2012. After the matter was allocated to me for a hearing on 23 November 2012, I instructed my Associate to advise the parties as follows:
1. The respondent (Flexi Group Capital T/A Flexi Rent Capital), is not required to appear at the proceedings at the above listed place and time [10:00am, Friday 23 November 2012].
2. The applicant (Mr Martin Campbell) is directed to attend the proceedings at the above listed place and time. A failure of the applicant to appear at these proceedings and to provide an explanation as to why previous directions have not been complied with may result in the application being dismissed for want of prosecution.
There was no compliance with the directions above. The applicant failed to attend the hearing and there has been no communication from him subsequently.
CONSIDERATION
[4] Section 587(1) of the Act empowers the Tribunal to dismiss an application for want of prosecution; See: Sayer v Melsteel Pty Ltd[2011] FWAFB 7498. The section is expressed as follows:
‘(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 grounds of success.’
[5] It is to be observed that the terms of s 587(1) do not limit the circumstances in which FWA may dismiss an application. However, in Carter v The Hanna Group Pty Ltd [2011] FWA 31, I dealt with the relevant authorities applied by Courts and Tribunals and the principles to be distilled from those authorities, when exercising a power to dismiss an application for want of prosecution. 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.’
[6] For completeness, I also refer to the decision of the Full Bench in Sayer v Melsteel Pty Ltd, supra above, in an appeal where an applicant claimed he had been denied natural justice in not being given an opportunity to be heard. At paras [8]-[9], the Full Bench said:
‘[8] When these events are looked at objectively it is clear that there has been no denial of natural justice. Whether he was too ill to attend the hearing on 7 July or not, it is highly unlikely that he was so incapacitated that he was unable to send a message of any kind. But there is no evidence that he took any action to alert anyone to the fact he would not be attending. Mr Sayer was given an adequate opportunity to be heard. While it was open to the Commissioner to adjourn the matter, either generally or subject to some conditions, his decision to decide the matter in the applicant’s absence was not affected by error.
[9] Mr Sayer also submitted that if he were to be permitted to run his case he would have succeeded. In light of our conclusion on the first ground of appeal it is not necessary that we deal with that submission. When an applicant does not take the opportunity provided to prosecute their application, the application will usually fail. It is difficult to envisage circumstances in which it could be otherwise.’ [my emphasis]
[7] Applying the above principles to this matter, I am satisfied that the applicant has been given an opportunity to be heard and he has failed to do so without any explanation. Unfortunately, his lack of diligence in this respect is compounded by his failure to comply with directions of FWA. He was aware of the possible consequences of not doing so. There is no doubt the applicant has been receiving email and oral communications from FWA.
[8] Apart from his initial application and his email of 19 October 2012, the applicant has failed to make any contact with FWA explaining his non-attendance and his non compliance with FWA’s other directions. I am satisfied the applicant has abandoned his claim for an unfair dismissal remedy. Moreover, I do not consider the interests of justice would be served by taking any further steps to encourage him to pursue his application. It should be noted that the respondent has gone to the trouble and expense of obtaining independent legal advice in complying with FWA’s directions and in responding to the applicant’s claims.
[9] In conclusion, the Act’s unfair dismissal regime in Chapter 3-2 is underpinned by the principle set out in s 381(2) of a ‘fair go all round’. This principle fortifies my conclusion that this matter must be dismissed for want of prosecution. An order to that effect will be issued contemporaneously with this decision.
DEPUTY PRESIDENT
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