Mr Shane Ahsan v Polar Fresh Cold Chain Services

[2014] FWC 3464

[2014] FWC 3464

FAIR WORK COMMISSION

DECISION

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

Mr Shane Ahsan
v
Polar Fresh Cold Chain Services
(U2014/1054)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 27 MAY 2014

Summary: unfair dismissal - failure to prosecute - failure to respond to jurisdictional objection - full bench authorities - s.587 - scope of power to dismiss an application.

[1] On 1 April 2014 Mr Shane Ahsan made an application under s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy in relation to his alleged dismissal by Polar Fresh Cold Chain Services (“the employer”). The application was not made in compliance with s.394(2)(a) of the Act, and therefore materials were sought to assist in ascertaining whether there were circumstances that warranted exercising the conditioned discretion to allow the application in another period.

[2] To this end correspondence was directed to the Applicant and the employer at their respective email addresses on 1 May 2014. That email read as follows:

Dear Mr Ahsan/Mr Molisi and Mr Kemp

Re: U2014/1054 – Ahsan v Polar Fresh Cold Chain Services

I refer to the above matter.

As notified in correspondence of 15 April, the issue of extension of time for filing an application must be determined prior to this matter proceeding.

As such, parties please note the attached directions for filing written material, and the relevant dates:

• 8 May 2014 – Applicant to file material



• 15 May 2014 – Respondent to file material.




(This email and attachment is sent by post and email to Mr Ahsan, and by express post to the Respondent.)

[3] The Applicant did not file his materials on the date specified, or on the days thereafter.

[4] Because of this, a further email was sent to the Applicant on 12 May 2014. That email read as follows:

Dear Mr Ahsan

I refer to the above matter, and the email and directions sent on 1 May 2014.

The directions required that you file with the Commission material/statements regarding the late lodgement of your application by 8 May 2014.

No material was received.

Senior Deputy President Richards asks you whether you intend to pursue your application? If so, you must file material by COB on Thursday 15 May 2014. The attached directions provide guidance on the matters that you should address.

If no material and explanation is received by the above date, your application will be dismissed for reason of want of prosecution (under s.587 of the Act). The Respondent would also be at liberty to make an application that the unfair dismissal application be dismissed in accordance with s.399A of the Fair Work Act 2009.

[5] No materials were received from the Applicant on 15 May 2014, or in the time leading up to the publication of this decision. My associate contacted the Applicant by mobile telephone on 14 May 2014, alerting him to the emails sent and the requirement to file material by 15 May 2014.

Legislative provisions

[6] Section 587 of the Act 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.

[7] 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):

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. 1

[8] The circumstances before me do not relate to the facts in Sayer v Melsteel, in so far as the Applicant’s failure to prosecute his case does not arise from his non attendance at a hearing but his failure to provide materials in support of the jurisdictional competency of his application, as directed.

[9] Because of this, and unlike the situation in Sayer v Melsteel, there is no capacity of course for an employer to demonstrate “some defence” relative to the requirements of s.394(3) of the Act for example. In respect of the substantive matter, however, the employer has articulated a defence: the Applicant, it says, had been absent from work for three days continuously without any explanation and was not able to demonstrate - on his return and after being offered opportunities to do so - any medical certificate or evidence he had contacted the business to advise of his absence. The Applicant had also been on a final warning for related conduct.

[10] The Full Bench in Viavattene v Health Care Australia[2013] FWCFB 2532 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:

[39] [...] 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). 2

[11] The Full Bench’s broad commentary applies to a situation such as that here, where the Applicant has demonstrated an “unwillingness to participate in proceedings commenced at his [...] initiative” by failing to comply with directions and make out the jurisdictional competency of his application.

[12] In the particular case under review by the Full Bench, the member at first instance had dismissed the application before her on the basis of s.587 of the Act. The Full Bench upheld that decision. There is no need to set out the facts of that case.

Conclusion

[13] In the current circumstances the Applicant has been given a reasonable opportunity to present his case and he has not done so. I cannot by some action compel the Applicant to take advantage of the opportunity to present his case and/or to make out the validity of his application.

[14] The power to dismiss an application, of course, should only be used cautiously (though there is some commentary to suggest it should also only be used ‘sparingly’, which is a measure of frequency or economy - see [2013] FWC 7080 at 39).

[15] Section 587 of the Act, I note, does not limit the grounds on which, the Commission can under its own motion, dismiss an application:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

[...] [My emphasis]

[16] In this instance, the Applicant has failed to comply with Directions and provided no indication that he wishes to avail himself of an opportunity to present his case (and/or to defend it against a jurisdictional objection) in relation to the application he has agitated.

[17] In my view, s.587 of the Act, by way of its language (see my emphasis above) affords scope for the Commission to dismiss an application on such grounds, as made out on a cautious basis. I add that 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).

[18] In any event, where an application is not pressed, or where an applicant does not respond to a jurisdictional objection in relation to that application, such conduct must imply that the application has no reasonable prospects of success, at either or both of the jurisdictional and the substantive levels.

[19] For the reasons given, I dismiss the application under s.394 of the Act pursuant to s.587 of the Act because the Applicant has evinced an unwillingness to participate in the proceedings he commenced at his initiative.

SENIOR DEPUTY PRESIDENT

 1   [2011] FWAFB 7498 at PN [16]-[17].

 2   [2013] FWCFB 2532 at PN [39].

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