Mr Steven Maddison v Commonwealth of Australia (acting through and represented by the Department of Defence)

[2016] FWC 2371

[2016] FWC 2371

FAIR WORK COMMISSION

DECISION

Fair WorkAct2009
s.394 - Application for unfair dismissal remedy

Mr Steven Maddison
v
Commonwealth of Australia (acting through and represented by the Department of Defence)
(U2013/5870)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 15 APRIL 2016

Unfair dismissal application – two year delay in proceedings owing to indefinite adjournment - applicant incarcerated for serious criminal offence – law of frustration.

[1] Mr Stephen Robert Maddison lodged an unfair dismissal application under section 394 of the Fair Work Act 2009 (“the Act”) on 23 January 2013 in respect of his dismissal from the Commonwealth of Australia, Department of Defence (“the Department”).

[2] It appears that on 16 December 2011, Mr Maddison was suspended, initially with pay and then subsequently without pay, from his position as an APS employee in the Joint Logistics Unit because the Department became aware that he had been charged with serious criminal offences.

[3] On 29 November 2012, Mr Maddison was found guilty of indecent treatment of a child under 16 under care, and he was sentenced to imprisonment for nine months.

[4] In light of the judgement of the court, Mr Maddison’s employment was terminated on 4 January 2013 because he was unable to perform his duties owing to the fact that he was incarcerated.

[5] Mr Maddison subsequently lodged an unfair dismissal application.

[6] Following the lodgement, the Commission initiated a conciliation conference between the Department and Mr Maddison to see whether the application may be able to be resolved on terms. There was no agreement and the application was set down for arbitration across two days in June 2013.

[7] Mr Maddison was directed to file in accordance with the directions by 15 April 2013. However, on 16 April 2013, the member responsible for the file, former Commissioner Jones, adjourned the application indefinitely.
[8] The Department had received no correspondence or communication from the Commission or Mr Maddison about the application in the course of the two year period, and assumed the application had been discontinued.

[9] It would appear that in May 2015, some two years later, the Commission, through the agency of Senior Deputy President Gooley, the Panel Head for Unfair Dismissals, contacted the Department and advised that Mr Maddison’s application was now to be heard.

[10] In a mention conducted by Deputy President Gooley on 12 January 2016, Mr Maddison explained that he remained incarcerated, presumably owing to a further conviction and sentencing decision of the Court. Mr Maddison’s latest communications indicate that he remains incarcerated at the current time, although he intends to appeal the decision which has led to his further period of incarceration (that is, relative to the initial nine-month period arising from the original conviction and sentence).

[11] Following the mention before the Deputy President, the file was allocated to me.

[12] Mr Maddison filed submissions on 8 February 2016. Mr Maddison’s argument was briefly stated. He argued that he should not have been stood down without pay prior to his conviction, that the periodic reviews of the stand down had been inconsistent with stated policy. Mr Madison sought financial compensation for loss of income and emotional stress during the stand down period.

[13] Mr Maddison also sought a stay to apply to the Department’s decision to terminate his employment until such time as his court processes are concluded – which refers to the pending appeal in relation to matters additional to the initial conviction referred to above.

[14] In response, the Department proposed a path of action.

[15] The Department requests that I do not hold a hearing, in the context of section 399 of the Act, and, in essence, that I exercise my discretion under section 587 of the Act to dismiss the application by Mr Maddison, given that Mr Maddison has not articulated a case of any substance.

[16] In more detail, the Department contends that Mr Maddison’s application has no reasonable prospect of success. It contends that Mr Maddison was incarcerated owing to having been convicted for a serious offence and he was precluded from working for a lengthy period of time as a consequence. The Department consequently terminated Mr Maddison’s employment because he was no longer able to perform the duties as an employee because he had been convicted of a criminal offence and had been imprisoned (and remains imprisoned).

[17] Section 29(3)(c) of the Public Service Act 1999 provides grounds for termination of an APS employee for non-performance of their duties.

[18] In effect, therefore, the Department contends that the contract of employment was terminated because the Department was deprived of the benefit of Mr Maddison’s performance of work, owing to his conviction and incarceration - which is a species of the doctrine of frustration.

[19] Upon the Department so agitating, I wrote to Mr Maddison and invited him to provide me with any submissions he wished to make in respect of that application and provided him with copies of the relevant excerpts from the Act along with copies of decisions referred to in the Department’s correspondence.

[20] Mr Maddison replied and explained that he was not able “to access and therefore provide any of the evidence required to support [his] case.” In fact, Mr Maddison indicated that he had very few resources at his disposal whatsoever.

[21] Mr Maddison’s asserts that is unfair for the Commission to proceed in circumstances in which he has no resources at his disposal to accumulate the evidence to establish his case. This amounts to a request to adjourn his application until such time as he is released from prison.

[22] Mr Maddison went on to claim that “this makes it unfair and unreasonable to continue as to do so will deny me the ability to present a properly prepared case.”

Power to dismiss

[23] The Commission has power to dismiss an application under s.587 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.

[24] Commission’s power to dismiss an application arises relevantly for the matter before me at s.587 of the Act, and is conditioned expressly by the Act (in both the section and more broadly, as is ordinarily the case).

Reasonable Prospect of Success?

[25] Mr Maddison’s essential claim (for compensation for the financial and emotional consequences of the period of unpaid stand down and a stay on the termination effected in January 2013) is unrelated to the reason for his dismissal (which arose from the elementary fact that Mr Maddison was no longer able to perform his duties for the Department owing to his incarceration, and the Department was unwilling to maintain a contract of employment in such circumstances). Mr Maddison has no articulated cause of action to underpin his application.

[26] Mr Maddison’s argument faces an insurmountable challenge, and that is that the reason for his dismissal was because he was no longer able to perform any work for a prolonged period of time, owing to his incarceration. Mr Maddison’s submissions as they have been, are unable to resist or address this elementary reason for his dismissal.

[27] As I have said above, with the Department having been deprived of the benefit of the performance of Mr Maddison’s work owing to his conviction and incarceration, the contract of employment was terminated and Mr Maddison’s employment came to an end. The factual basis to this cause of action on the Department’s part is not contested by Mr Maddison in any of his documentation.

[28] Notwithstanding the need for caution in matters where an applicant is at risk of having their rights of access to a tribunal thrown away, I find that Mr Maddison’s argument cannot be said to have reasonable prospect of success. Pursuant to section 587(1)(a) of the Act it may be dismissed as a consequence of my so finding. The discretion to dismiss Mr Maddison’s application, therefore, is enlivened.

The Discretion

[29] Mr Maddison asserted, as I have mentioned above, that it would be unfair for the Commission to proceed whilst he is in his current predicament. However, Mr Maddison’s claims as the applicant are irrelevant to the grounds for the dismissal as they were, and in any event are beyond jurisdiction (in terms of his request for a stay of the termination decision taken in early 2013).

[30] Further, in exercising its discretion, the Commission must have regards to the interests of both parties. Mr Maddison’s requested an adjournment of all proceedings until such time as he is released from prison (which is an indefinite date given he is still in the process of appealing what seems to be a decision by the court in relation to an outstanding matter and further to the original conviction decision, which was upheld on appeal in May 2013). Such a request would cause significant and indefinite delay and cause additional costs and expenses in bringing what is likely to be a stale matter to hearing. The Department should not be burdened with a liability of this kind, framed by the above circumstances, for a further period of time.

Whether a hearing is required

[31] In my view it is not been necessary to conduct a hearing in relation to this particular matter (s.399 of the Act). An excess of time has passed since the application was originally made, and there appears to me on the basis of the materials before me no need for additional transaction costs to accrue.

[32] Mr Maddison made no submission on this point, despite having the opportunity to do so, but I infer that he seeks that I conduct a hearing (albeit by videoconference following suitable arrangements being made).

[33] It does not appear to me that in the circumstances a hearing would enhance the argument as it is whatsoever.

Conclusion

[34] Upon reflecting on my discretion and the balance of interest between the parties, I consider that it appropriate that I exercise that discretion to dismiss the application.

[35] Mr Maddison’s application under s.394 of the Act is dismissed.

SENIOR DEPUTY PRESIDENT

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