Mr Ram Munisamy v Halliburton Australia Pty Ltd

[2016] FWC 4471

[2016] FWC 4471

FAIR WORK COMMISSION

DECISION

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

Mr Ram Munisamy
v
Halliburton Australia Pty Ltd
(U2015/13580)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 13 JULY 2016

Application for relief from unfair dismissal.

[1] This decision arises from an application pursuant to s.394 of the Fair Work Act 2009 (the Act) filed on 14 October 2015.

[2] The chronology of the Fair Work Commission’s (the Commission‘s) dealings with this application is set out below.

[3] On 15 October 2015 a listing was issued for a telephone conciliation conference on 16 November 2015.

[4] On 22 October 2015 the respondent, Halliburton Australia Pty Ltd (Halliburton), filed an Employer Response.

[5] On 16 November 2015 the listed conciliation conference was cancelled due to the illness of the conciliator and relisted for 18 November 2015.

[6] On 18 November 2015 on the occasion of the conciliation conference the applicant was not able to be contacted. Halliburton requested another conciliation conference.

[7] On 19 November 2015 Mr Munisamy requested that all correspondence from the Fair Work Commission be sent by standard mail rather than electronic mail.

[8] On 3 December 2015 the application was listed for a further telephone conciliation conference on 17 December 2015.

[9] On 14 December 2015 Mr Munisamy requested the adjournment of the telephone conciliation conference set down for 17 December 2015 because he did not receive the Notice of Listing with what he said was enough notice. The notice had been received by Mr Munisamy on 8 December 2015. Mr Munisamy’s request for adjournment was refused.

[10] On 17 December 2015 on the occasion of the listed conciliation conference Mr Munisamy was not able to be contacted by telephone. There was no facility available for voice messages on either Mr Munisamy’s mobile telephone or landline.

[11] On 22 January 2016 Mr Munisamy provided a medical certificate stating that he was unavailable to attend meetings from 17 December 2015 until 17 March 2016.

[12] On 21 December 2015 the application was allocated to me for hearing.

[13] On 11 January 2016 I allocated this application to Commissioner Riordan for conciliation in Perth on 22 January 2016.

[14] On 18 January 2016 Commissioner Riordan requested a copy of the Income Protection policy pursuant to which MLC Claims was making payments to Mr Munisamy. It was provided on 21 January 2016.

[15] On 22 January 2016 Mr Munisamy provided a further copy of the medical certificate lodged with the Commission on 17 December 2016 stating that he was unfit to attend meetings until 17 March 2016.

[16] Mr Munisamy did not attend the conciliation conference before Commissioner Riordan.

[17] On 22 January 2016 Commissioner Riordan asked Mr Munisamy to advise within seven days whether he would proceed with his application.

[18] On 4 March 2016 I wrote to Mr Munisamy and advised him that his application would be dismissed without further notice to him, on 10 March 2016, unless he responded to Commissioner Riordan’s correspondence of 22 January 2016.

[19] On 9 March 2016 Mr Munisamy responded. He asked why the Commission would not accept his medical certification that he was unfit to attend meetings until 17 March 2016.

[20] On 10 March 2016 I responded to Mr Munisamy’s correspondence of 9 March 2016. I advised Mr Munisamy that the medical certificate provided by him did not deal with his fitness to conduct his application. He was asked to attend a conference in Perth on 22 March 2016.

[21] On 14 March 2016 I wrote again to Mr Munisamy advising that his application would be dismissed if he did not attend.

[22] On 16 March 2016 Mr Munisamy forwarded by facsimile a medical certificate from Dr T D Hoffman, certifying that he was unfit to attend court related matters, conferences or hearings from 16 March 2016 until 16 April 2016 inclusive.

[23] On 17 March 2016 the listing of this application requiring a personal attendance on 22 March 2016 was cancelled. The application was relisted for mention/directions by telephone link for the same date at 1pm (EST).

[24] On 17 March 2016 Mr Munisamy corresponded pointing to his medical certification and querying why the Commission would not accept his previous certificate.

[25] On 18 March 2016 Mr Munisamy resent by facsimile his letter of 9 March 2016, reiterating that communication with him should be by standard mail, and that after an appointment with his doctor on 16 March 2016, he would appoint a solicitorto take on his case.

[26] On 22 March 2016 Mr Munisamy called at 9:25am (EST) and advised that he was unable to attend the listing for mention/directions by telephone link. Halliburton made an application pursuant to s.399A of the Act that Mr Munisamy’s application be dismissed.

[27] On 24 March 2016 Mr Munisamy’s application was listed for hearing by telephone link to determine the respondent’s dismissal application on 15 April 2016.

[28] I wrote to Dr Moody seeking confirmation that the applicant was unable to use a telephone.

[29] On 5 April 2016 Dr Moody responded to my correspondence of 24 March. He stated that Munisamy could use a telephone. He advised that, as the applicant was recovering from a life-saving renal transplant and as Mr Munisamy was experiencing stress and high blood pressure due to his dealings with the Fair Work Commission, that the Fair Work Commission should allow further time for the applicant to arrange legal representation.

[30] On 6 April 2016 the listing for 15 April 2016 was cancelled and Halliburton’s application was relisted for 13 May 2016. Dr Moody’s letter was provided to the respondent.

[31] I advised Mr Munisamy of the cancellation of the listing and the adjournment of the hearing until 13 May. I directed that written submissions be filed one week prior to the hearing.

[32] On 21 April 2016 Mr Munisamy wrote to the Fair Work Commission complaining about the bias shown to him by the Fair Work Commission by refusing to acknowledge the medical certificates provided and asked that I remove myself from hearing the application. I considered Mr Munisamy’s application. I determined that there was no basis to remove myself from the determination of the application. On 28 April 2016 I wrote to Mr Munisamy and refused his request.

[33] On 10 May 2016 I received an affidavit from Mr Munisamy dated 9 May 2016.

[34] On 11 May 2016 I received further correspondence and a medical certificate from Dr Moody reaffirming the applicant’s condition.

[35] I decided to proceed and hear Halliburton’s application to have Mr Munisamy’s application dismissed.

[36] When considering whether to list and hear Halliburton’s application I took into account the medical certification provided by Mr Munisamy’s treating specialist. I was satisfied that, whilst the applicant had severe health problems related to his kidney transplant, he was not prevented by that medical condition from presenting his arguments in writing.

[37] In reaching this conclusion I also took into account Mr Munisamy’s written responses to my dealings with the application and in particular, the detailed responses provided by him to my listing his application.

[38] I also took into account the detriment to Halliburton if Mr Munisamy’s application remained unlisted for arbitration and not determined.

[39] On 13 May 2016 I heard the application of Halliburton by telephone link without an attendance by Mr Munisamy.

[40] On 31 May 2016 Mr Munisamy was forwarded by standard mail a copy of the transcript of proceedings of 13 May 2016. Mr Munisamy was advised that he had 14 days to respond.

[41] On 14 June 2016 I received the submissions in response from Mr Munisamy.

[42] On 22 June 2016 Mr Munisamy’s submissions in response were provided to Halliburton. Halliburton declined to provide a further response.

[43] Halliburton’s submission in support of its application to dismiss Mr Munisamy’s application is set out below.

“------

As you are aware we presented for a scheduled Mention and Directions telephone Hearing in relation to this matter earlier today. Unfortunately the applicant was not available and could not be contacted by telephone. We also attended a scheduled conciliation Conference on behalf of the respondent on January 22, 2016 at which the applicant failed to attend. Although we were not acting for Halliburton at the time they have informed us that there were two previous Conciliation Conferences scheduled in the fourth quarter of 2015 which Mr Munisamy also failed to attend. We understand a Halliburton representative attended on both these occasions.

In accordance with Section 399A of the Fair Work Act we hereby respectfully request that the FWC dismiss this application on the grounds that the applicant has unreasonably ‘failed to attend a Conference conducted by the FWC, or a hearing held by the FWC, in relation to the application.’

Should the commission not consider the above grounds sufficient we would alternatively seek to rely on Section 587 (1)(cc) of the Act (that the application has no reasonable prospects of success). Further details are contained in the Form 3 response to this matter but in summary:

i. Mr Munisamy has been unfit for work since 2007 and his medical prognosis prior to termination was that he would never be fit to return to his work duties

ii. Mr Munisamy has been paid out all his accrued benefits on termination

iii. Mr Munisamy has been paid a salary in accordance with a Halliburton provided Salary Continuance Insurance Plan since 2007 and continues to be in receipt of those payments from MLC Insurance

iv. The remedies which Mr Munisamy seeks in his Form 2 Application are not supported by the facts of this matter or are not within the jurisdiction of the Fair Work Commission.

We believe that in all the circumstances it is unfair for the respondent to incur any further costs in this matter. Should you require any further information in relation to this application please contact me as per the details below.”

Conclusion: Halliburton’s application pursuant to s.399A of the Act

[44] Halliburton’s application pursuant to section 399A of the Act cannot succeed. Despite his manifest failures of communication, and the consequent inconvenience and cost to both the Commission and Halliburton, Mr Munisamy was unfit to attend a conciliation or arbitration on the occasions when his application was listed for conciliation.

Conclusion: Halliburton’s application pursuant to s.587(1)(cc) of the Act

[45] Pursuant to s.587(1)(cc) of the Act the Commission may dismiss an application if the application has no reasonable prospects of success.

[46] Mr Munisamy is totally unfit for work. His specialist, Dr Moody, has certified him as unfit. He has been medically unfit from 17 July 2007 and on unpaid leave from Halliburton since 29 July 2007. He is presently recovering from a renal transplant. Halliburton’s Group Disability Income Benefit (salary continuance) insurance scheme is meeting its obligations to Mr Munisamy and he has been in receipt of full benefits pursuant to that policy from 20 August 2007.

[47] On the basis of his continuing medical incapacity for work Halliburton terminated Mr Munisamy’s employment by letter dated 20 August 2015 effective from 24 September 2015.

[48] I am satisfied that Mr Munisamy’s application has no reasonable prospects of success. Mr Munisamy cannot perform work for Halliburton. He could not do so at the date of termination of employment or lodgement of his application and he cannot do so now.

[49] This application is dismissed pursuant to s.587(1)(cc) of the Act.

SENIOR DEPUTY PRESIDENT

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