Mr Shafiq Ahmad v Motoco Group Pty Ltd T/A Honeycombes Cars and 4wds

[2015] FWC 223

[2015] FWC 223

FAIR WORK COMMISSION

DECISION

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

Mr Shafiq Ahmad
v
Motoco Group Pty Ltd T/A Honeycombes Cars and 4wds
(U2014/9217)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 13 JANUARY 2015

Application for relief from unfair dismissal.

[1] The Applicant in this matter, Mr Shafiq Ahmad (“the Applicant”) lodged an application under s.394 of the Fair Work Act 2009 (“the Act”) on 11 September 2014. By that application the Applicant was seeking an unfair dismissal remedy arising from his dismissal by Motoco Group Pty Ltd T/A Honeycombes Cars and 4WDs (“the employer”).

[2] A directions conference was listed for 11 November 2014. The notice of listing was sent by email and post to the Applicant. The Applicant did not appear personally or by telephone.

[3] Numerous efforts were made to contact the Applicant at the time of the directions conference. A voice message was left on his voicemail.

[4] The following day the Applicant contacted the Commission by telephone (by way of a voice message) and indicated that he wished to pursue his application.

[5] Directions for the filing of materials were issued by email on 24 November 2014.

[6] The Applicant did not respond to the directions and his materials were not submitted.

[7] On 19 December 2014 the following email was sent to the Applicant’s email address:

Dear Mr Ahmad

Re: U2014/9217 - Ahmad, Shafiq v Motoco Group Pty Ltd T/A Honeycombes Cars and 4wds

I refer to the directions issued in this matter on 24 November 2014 (by email). Those directions required you to file witness statements and an outline of submissions in support of your application, by 15 December 2014.

No material has been received.

Senior Deputy President Richards asks if you intend to press your application for unfair dismissal remedy?

If you do wish to press your application, you must file your statements and submissions by COB on Monday 22 December 2014. After that time the Respondent would be at liberty to make an application that the matter be dismissed, under s.399A of the Fair Work Act 2014. Additionally, the Commission also has power to dismiss an application under s.587 of the Act.

[8] But these efforts were to no avail; the Applicant made no contact with the Commission.

[9] The Applicant’s home address has apparently changed and an item of surface mail (the notice of listing for the initial directions conference) was returned undelivered. The Applicant had not provided a new address to the Commission.

[10] A telephone message was left on the Applicant’s voicemail on 19 December 2014 alerting him to the email and encouraging him to consider its contents.

[11] The Applicant has not responded to any communications from the Commission.

[12] In light of the Applicant’s non-responsiveness to these requests, I have determined to dismiss the application for want of prosecution pursuant to s.587 of the Act, which provides as follows:

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.

[13] The power to dismiss an application, of course, should only be used cautiously (though there is some commentary that goes further and suggests it should also only be used ‘sparingly’, which is a different notion altogether- see [2013] FWC 7080 at 39).

[14] In this instance, the Applicant has not evinced sufficient effort to continue to pursue the application he has agitated, despite the Commission’s approaches.

[15] Section 587 of the Act, by way of its language affords scope for the Commission to dismiss an application on such grounds, as made out on a cautious basis. The Federal Court has commented upon the “wide” scope of the words at s.587 of the Act in another context arising under the Act (see Australian Postal Corporation v Gorman [2011] FCA 975 (25 August 2011) at paragraph 33).

[16] In the Full Bench decision in Sayer v Melsteel[2011] FWAFB 7498,the Full Bench provided guidance on the approach to be followed in circumstances where an applicant failed toprosecute their case. The Full Bench noted (relevantly)(at [16]-[17]):

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.

[17] In the circumstances now before me, the employer has provided a summary response to the Applicant’s claims by way of its Form F3. The employer essentially argues that the Applicant was overheard speaking to a customer in an inappropriate manner and had entered into private commercial arrangements in the course of his professional dealings on behalf of the employer. The employer, on the face of its claims, has “a defence of substance” against the claims, or at least “a defence to the action”.

[18] The Full Bench in Viavattene v Health Care Australia[2013] FWCFB 2532 (at [39]) commented on the circumstances where an applicant evinces “an unwillingness to participate in proceedings”, and did so in the immediate context of a discussion of the authority in Sayer v Melsteel:

[...] 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).

Conclusion

[19] I exercise my discretion in this regard in the knowledge that the Respondent’s materials lodged indicate, even if at the prima facie level, a defence against the claims as made. The Applicant has failed to prosecute his claims despite being afforded ample opportunity to do so. I dismiss the application for those reasons.

SENIOR DEPUTY PRESIDENT

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