Mr Peter Viavattene v Health Care Australia

[2013] FWC 756

Note: An appeal pursuant to s.604 (C2013/3139) was lodged against this decision - refer to Full Bench decision dated 24 April 2013 [[2013] FWCFB 2532] for result of appeal.

[2013] FWC 756

FAIR WORK COMMISSION

DECISION

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

Mr Peter Viavattene
v
Health Care Australia
(U2012/10654)

COMMISSIONER BOOTH BRISBANE, 4 FEBRUARY 2013

Application for unfair dismissal - arbitration.

[1] Mr Peter Viavattene (the Applicant) alleged he was unfairly dismissed from his employment with Health Care Australia Pty Ltd (the Respondent).

[2] The Respondent raised a number of objections to the application including an assertion that the Applicant was a casual employee and therefore not covered by the unfair dismissal legislation, and alternatively that the termination of employment was not in breach of the relevant legislation.

[3] The Applicant failed to attend the hearing of the matter. The Respondent applied for dismissal of the application pursuant to section 587 of the Fair Work Act 2009 (the Act).

Chronology

[4] The Applicant was employed by Health Care Australia Pty Ltd as a registered nurse in August 2010. The Respondent company provides agency nursing services, including to one facility at which the Applicant appears to have been allocated work, The Park, a psychiatric facility at Wacol operated by Queensland Health.

[5] His employment was terminated on 14 June 2012. An application for unfair dismissal remedy under the Act was made by the Applicant on 18 June 2012. The Respondent responded on 4 July 2012 asserting that the Applicant was a casual employee and therefore not protected by the unfair dismissal provisions of the Act, and alternatively that the dismissal was not in breach of the Act.

[6] Attempts at conciliation were unsuccessful, and Mr Viavattene began to prosecute his application, including seeking directions. A hearing was eventually set down for three days commencing 17 October 2012.

[7] Prior to the hearing, on several occasions, the Tribunal, through members’ associates, sought further information or documentation of the Applicant in order to assist him comply with directions issued by, Senior Deputy President Richards, Commissioner Jones and me.

[8] Both the Applicant and the Respondent (through its representatives) attended the hearing on 17 October 2012. Prior to commencement of the hearing the Applicant was arrested by officers of the Australian Federal Police on unrelated matters. As a result I adjourned the hearing and vacated the listing. Both parties were given liberty to apply.

[9] On 27 November 2012, the Respondent contacted the Tribunal to request the matter be further listed for directions to decide the future conduct of the matter including setting the matter down for a further hearing.

[10] On 19 December 2012 at a directions hearing both parties sought further directions. The Respondent sought the usual details of the Applicant’s earnings and efforts to mitigate loss. The Applicant, who attended by telephone, sought to appear at the hearing by telephone. The Respondent’s representative opposed the Applicant appearing at the hearing by telephone. Further directions were made to provide written submissions on that question.

[11] In a written decision 1 the Applicant was directed to attend the hearing in person. It should be noted that the reason the Applicant sought to appear by telephone was due to the expense and distance of travelling. The Respondent offered to make payment towards the Applicant’s cost of travel and accommodation up to $240. As part of the order I directed that this amount be paid to the Applicant prior to the hearing. The Respondent complied with this direction. New hearing dates were set for 30 and 31 January 2013.

[12] The hearing commenced on 30 January 2013 at 10am. The Respondent’s representatives and their witnesses were in attendance. There was no appearance from the Applicant, who had not advised that he could not attend in person.

[13] My associate contacted the Applicant from the hearing room by telephone. While on the phone the Applicant at times seemed upset or angry. He advised that did not attend in person because of the recent flooding that had affected Northern New South Wales where he is living. The Tribunal was prepared to provide some latitude to the Applicant in the circumstances, taken at face value.

[14] It turned out to be a brief telephone appearance. The Applicant submitted the matter should be decided without a hearing, on the papers, and then hung up. The matter had not been adjourned. He had not asked to be excused. He simply chose to hang up.

[15] The Respondent then sought an order that the application be dismissed for want of prosecution, given the Applicant’s apparent refusal to participate further in the hearing, not having tendered evidence.

[16] Despite these circumstances, and what appeared to be a deliberate choice by the Applicant to cease participation in the hearing, I indicated to the Respondent that, given that flooding apparently preventing the Applicant from attending in person, I would not dismiss the application but would adjourn for the day.

[17] The Respondent opposed the matter being heard on the papers as there were a number of contested evidentiary matters, and a wish on the Respondent’s part that the Applicant’s evidence be tested by cross examination. Any adjournment, it was submitted, should take into account that the Respondent’s representatives had now travelled from Sydney on a second occasion for the hearing and its witnesses attended also for a second time. It was put to me that the matter be reconvened the next day, on 31 January 2013, which was also a day listed for the hearing of this matter.

[18] In a written decision published on 30 January 2013 2 I noted that, given the contest of facts in this matter, there was a need for cross examination and that would require a hearing with the parties present. However given the circumstances of the Applicant’s home apparently having been flooded, or at least his movements curtailed by the flood, the order requiring personal attendance was vacated and the Applicant was given leave to attend the hearing by telephone. The matter was adjourned until the next day, Thursday 31 January 2013 at 10am.

[19] At around lunchtime on Wednesday, 30 January 2013, the Applicant contacted my associate to enquire about a number of matters including the transcript of the hearing that morning. Additionally he advised that his email service had been restored. He then hung up again. There was no further communication by the Applicant with the Tribunal.

[20] The Applicant was advised by email of the decision issued that day, for the resumption of the hearing the next day.

The resumed hearing - 31 January 2013

[21] The Respondent’s representatives and witnesses attended on 31 January 2013 for the third time. The Tribunal attempted to contact the Applicant by telephone at 10am. He did not answer and a message was left. After a short adjournment a further attempt was made again to contact the Applicant by phone. A similar message was left. As at the writing of this decision, the Applicant has not contacted the Tribunal in response to the messages or the directions.

[22] Unsurprisingly after the second failed attempt, the Respondent pressed to have the matter dismissed under section 587 of the Act.

[23] That section provides as follows:

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) Despite paragraphs (1)(b) and (c), FWA must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) FWA may dismiss an application:

(a) on its own initiative; or

(b) on application.

[24] In support of this argument the Respondent drew the Tribunal’s attention to Bryan v SC Rubbish Removal/Sydney Cheapest Rubbish Removal 3 and Sayer v Melsteel Pty Ltd4.

[25] In both cases an application for unfair dismissal remedy was dismissed when the Applicant failed to attend proceedings before a tribunal under the Act.

[26] In Sayer the Full Bench gave express guidance as to the state of evidence when Applicants fail to attend hearings. In that case the Applicant filed submissions and other material but did not attend the hearing of the matter. The Full Bench noted that s587(1) provides for dismissal of an application. In the circumstances of Sayer the application was dismissed without the merits of the application being examined. It was held that this was consistent with s.587:

When, as in this case, the Applicant fails to attend to prosecute their case and the matter is determined in their absence, assuming there is no denial of natural justice, it would be artificial and unproductive to apply the criteria in s.387 on a hypothetical basis involving speculation about the facts. While the Applicant had filed material including witness statements, the fact that he did not attend to pursue his case meant that there was no requirement to take that material into account. The Respondent’s case was, in effect, unchallenged. Furthermore, the Respondent clearly had a defence of substance. If the Commissioner had concluded that the Respondent’s case was frivolous or completely lacking in substance it would have been open to him to take another course, but that is not a matter we need to explore.

It may be prudent, where a matter is determined in the absence of the Applicant, for the tribunal to satisfy itself that the Respondent had some defence to the action. The Commissioner’s decision is consistent with that approach. 5

[27] The Full Bench provides clear guidance as to requirements of making a decision to dismiss in circumstances where the Applicant filed submissions but did not attend the hearing.

[28] In Allesch v Maunz 6 the High Court considered the impact of a party failing to attend a hearing of a matter. Kirby J said:7

… 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. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.

(Footnotes omitted)

[29] These remarks apply equally well to the highly emotive environment of unfair dismissal remedy applications in this Tribunal.

[30] A key requirement for this Tribunal is to ensure natural justice is not denied. It is the reason that, despite the submissions of the Respondent to dismiss the application on 30 January 2013, I adjourned the matter and directed that the Applicant may attend by telephone the next day. The circumstances of the flood were unusual, and procedural fairness dictated that the previous order to attend in person was no longer tenable, based on the Applicant’s assertion that he was disadvantaged by the flood.

[31] However, it was not unreasonable that the Respondent would press for dismissal of the application after the third attempt at a hearing.

[32] In all the circumstances, the Applicant had been given every opportunity to present his case to the Tribunal. Natural justice had been afforded, even if the Applicant had not taken up the opportunities provided.

[33] It remains to consider whether the Respondent’s case can satisfy the Tribunal that it has a defence to the action brought against it. While it is arguable after Sayer that it is not necessary to examine the merits of the alleged dismissal when the Applicant fails to press his or her case at hearing, it is however prudent to ensure that the Respondent has a defence to its action.

[34] The Respondent’s case was contained in the statements of the witnesses Mr Hewerdine and Mr McCombes and the outline of submissions filed on 24 September 2012. By these statements and submissions, the Respondent seeks to defend the claim of unfair dismissal. The sworn statements were put into evidence and are unchallenged. These statements and submissions contain substantial arguments in response to the Applicant's contentions. The Respondent’s case is not frivolous nor does it lack substance.

[35] The Applicant was afforded natural justice, yet failed to participate in the hearing, despite numerous attempts by the Tribunal to facilitate his participation. The Respondent has established that it has a defence to it’s action. Additionally, the Respondent would be prejudiced by further adjournments at the Tribunal’s own motion.

[36] The requirements set out by the Full Bench in Sayer are met in this case. The appropriate course is to dismiss the application pursuant to section 587(1).

[37] In these circumstances, the application for unfair dismissal remedy is dismissed.

[38] An order to the effect will issue separately.

COMMISSIONER

Appearances:

No appearance by the Applicant.

T Capelin on behalf of the Respondent.

Hearing details:

2013.

Brisbane:

January 30, 31.

 1   Peter Viavattene v Health Care Australia [2013] FWC 628

 2   Peter Viavattene v Health Care Australia [2013] FWC 677

 3   [2012] FWA 6325

 4   [2011] FWAFB 7498 per Guidice J, McCarthy DP and Simpson C

 5   [2011] FWAFB 7498 at paragraphs 16 and 17. S.387 prescribes the matter the Tribunal must take into account when considering whether a dismissal was harsh, unjust or unreasonable, and therefore unlawful

 6 [2000] HCA 40; 203 CLR 172

 7 [2000] HCA 40 at paragraphs 38 and 39.

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