Mr Satnam Singh v Woolworths
[2018] FWC 657
•9 February 2018
| [2018] FWC 657 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s 394 - Application for unfair dismissal remedy
Mr Satnam Singh
v
Woolworths
(U2017/12517)
| Deputy President Sams | SYDNEY, 9 February 2018 |
Application for an unfair dismissal remedy – summary dismissal for serious misconduct – Commission’s processes – failure to attend two conferences – no explanation or communication with the Commission – employer application made under s 399A of the Act – principles considered – substantive application dismissed.
On 23 November 2017, Mr Satnam Singh (the ‘applicant’) filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) in which he sought an unfair dismissal remedy arising from his dismissal by Woolworths Limited (the ‘respondent’) on 9 November 2017. For the purposes of this decision, it is not strictly necessary to set out the background to the applicant’s dismissal or the reasons for it. It is sufficient to note that it was alleged by Woolworths that the applicant was dismissed for:
(a)A pattern of unacceptable and inappropriate behaviour; and
(b)Breaking Woolworths’ Code of Conduct and Appropriate Workplace Behaviour policies.
In accordance with my usual practice, my Chambers advised the parties of a conference on 10 January 2018 in order to explore settlement of the applicant’s claim. At the same time, directions were issued for a hearing of the application on 23 February 2018. Mr Singh did not attend the conference and had not made any contact with the Commission to explain why he was unable to do so.
Arising from the applicant’s failure to attend the 10 January 2018 conference, Mr Singh was advised by my Chambers as follows:
‘I am emailing you in relation to the above matter. The matter was listed for conference today at 10am. You were advised of this listing on 2 January 2018 by email. Notwithstanding that, you failed to appear in the Commission today and were unable to be reached by telephone. His Honour requires an explanation from you as to why you did not appear at today’s conference. The conference will be listed for a further conference at 2pm on Monday 15 January 2018. Please note, if an applicant to an unfair dismissal application unreasonably fails to appear at a conference, the Commission may, pursuant to s 399A of the Fair Work Act, dismiss the application.’
At the relisted conference on 15 January 2018, Ms N Thurgood and Ms C Jaffe appeared for the respondent. There was no appearance by, or on or behalf of Mr Singh and no communication had been received explaining the reason for his failure to attend on that day or on 10 January 2018. Further unsuccessful attempts were made by my Associate to phone Mr Singh before the conference. In light of these circumstances, Woolworths made an application to dismiss the applicant’s unfair dismissal application, pursuant to s 399A(1)(a) and (b) of the Act.
To date, there has been no communication from Mr Singh as to any matter, least of all providing explanations for his non-appearance at two conferences convened by the Commission. He was expressly warned of the consequences of his failure to attend or a failure to provide reasonable explanations for his non-attendance.
In light of the above narrative, I have decided to dismiss this application for want of prosecution and the applicant’s failure to attend conferences conducted by the Commission.
The Commission’s power to dismiss an application are set out generally at s 587 of the Act and specifically in respect to unfair dismissal applications under s 399A. I set out both sections below:
SECTION 587
Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC 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.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC 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) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.
SECTION 399A
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 power to dismiss a substantive application should only be exercised cautiously; see: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at para [8]. This is so because it results in the extinguishment of a party’s application, which has been made in order to seek some form of relief, from a beneficial statutory provision. In other words, the application is dismissed before an applicant has had, in the common vernacular, their ‘day in court’.
That said, s 587 of the Act does not limit the grounds on which the Commission, of its own motion, may dismiss an application. In the present case, the applicant has demonstrated a persistent unwillingness to properly engage with the Commission in respect to his application by failing to attend conferences convened by the Commission, notwithstanding it might well have been in his interests to attend settlement conferences. The applicant has made no attempt to explain his non attendance, despite being warned of the possible consequences. Given this history, I have little confidence that the applicant will, at some future point, seek to properly prosecute his claim.
I am reminded of what Kirby J said in Allesch v Maunz (2000) 203 CLR 172. At paras [35]-[39], His Honour said:
‘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.’ (My emphasis)
In Viavattene v Health Care Australia [2013] FWCFB 2532, a Full Bench of the Commission said at para [39]:
‘[39] It is apparent from the decision subject to appeal that the Commissioner had regard to Sayer v Melsteel, and made her decision following an analysis of the respondent's uncontested evidence, noting that the respondent's sworn statements and submissions contained “substantial arguments in response to the Applicant's contentions”. There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. 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).’ [endnotes omitted] (My emphasis)
In my view, it would be unfair and unreasonable to put the respondent to more time and cost in defending a matter which is not properly, or at all, being prosecuted by the applicant. This is a telling factor in favour of making an order to dismiss this application, given the overarching Object of the Commission’s unfair dismissal jurisdiction as set out at 381(2) of the Act which states:
‘(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.’
In the exercise of my discretion, I dismiss application U2017/12517, pursuant to s 587 and s 399A(1)(a) and (b) of the Act. I so order.
DEPUTY PRESIDENT
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