Mr Teata Bryan v SC Rubbish Removal/Sydney Cheapest Rubbish Removal
[2012] FWA 6325
•27 JULY 2012
[2012] FWA 6325 |
|
DECISION |
Fair Work Act 2009
s 394 - Application for unfair dismissal remedy
Mr Teata Bryan
v
SC Rubbish Removal/Sydney Cheapest Rubbish Removal
(U2012/5856)
DEPUTY PRESIDENT SAMS | SYDNEY, 27 JULY 2012 |
Application for unfair dismissal remedy - failure of applicant to attend proceedings or comply with directions of Fair Work Australia - want of prosecution - application dismissed.
[1] Mr Teata Bryan (‘the applicant’) alleges that he was dismissed from his employment as a truck driver with SC Rubbish Removal / Sydney Cheapest Rubbish Removal (‘the respondent’) on 1 March 2012. He has filed a claim for an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act, 2009 (‘the Act’). The circumstances surrounding the applicant’s termination of employment are not materially relevant for the purposes of this decision; although I note that the respondent has objected to the application on two grounds: firstly, that it is not a trading corporation in accordance with s 35 of the Act and, secondly, it is a small business employer, as defined, with only 2 employees, and the applicant is not a person protected from unfair dismissal because he was not employed by the respondent for more than 12 months.
[2] On this later point, strangely, and without any evidence, the applicant stated in his F2 application that he had been employed by the respondent for 5 years. In any event, I am not called upon to determine the two objections, as this matter can be determined on an entirely different basis - it should be dismissed for want of prosecution.
[3] To demonstrate the basis upon which I am satisfied that this application should be dismissed, it will be necessary to sketch a brief chronology of events.
[4] The applicant was advised on 14 June 2012 that the respondent’s objections were listed for hearing at 9am on 20 July 2012. He was also advised of directions to file and serve an outline of submissions and any witness statements or documentary material he intended to rely on by 13 July 2012. There was no compliance with these directions.
[5] At the hearing on 20 July 2012, the respondent was represented by Mr J Farah, Solicitor. After waiting my customary period of 15 minutes, the applicant failed to appear or have anyone appear to represent him. Notwithstanding, Mr Farah’s application that the matter be dismissed for want of prosecution and failure to comply with FWA’s directions, I instructed my Associate to advise the applicant as follows:
‘Dear Mr Bryan
Re: U2012/5856 - Bryan v SC Rubbish Removal / Sydney Cheapest Rubbish Removal
In view of your failure to comply with Fair Work Australia’s directions in this matter, His Honour directs that you:
1. File and serve on Fair Work Australia and the respondent any evidence to support your claim that you were employed by the respondent for 5 years; and
2. Advise Fair Work Australia and the respondent’s solicitor whether you intend to cross-examine Ms Jamilie Nicolas on her statement of 28 June 2012.
These directions must be complied with by 4pm Tuesday 24th July, 2012.
The matter is to be relisted for jurisdictional hearing on 26 July at 10am, Fair Work Australia, 80 William Street, East Sydney.
You are also advised that the respondent has foreshadowed a costs application against you.
A failure to attend or not comply with the above directions may result in your unfair dismissal matter being dismissed.’
[6] Around 10am that day, the applicant contacted my Chambers and said he had misread the listing time. My Associate advised him that the matter would be relisted on 26 July at 10am and he agreed that this was suitable. I note that the applicant did not comply with the above directions issued that day, nor did he respond to a summons for production of his time and wage records issued at the request of the respondent later that same day.
[7] At the hearing on 26 July 2012, the applicant had not appeared by 10:15am, nor had he made any contact with my Chambers to explain his failure to do so. Mr Farah again applied to have the matter dismissed and foreshadowed a costs application. I determined that should such an application be made, it will be dealt with in the usual way. However, I granted Mr Farah’s application to dismiss the substantive matter for want of prosecution. There has been no communication from the applicant since that time.
[8] I now provide my reasons for doing so.
Powers of Fair Work Australia
[9] Section 587(1) empowers the Tribunal to dismiss an application for want of prosecution; see: Sayer v Melsteel Pty Ltd [2011] FWAFB 7498. That section is expressed is as follows:
‘(1) Without limiting when FWA may dismiss an application, FWA 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.
[10] In Carter v The Hanna Group Pty Ltd[2011] FWA 31 - I dealt with the relevant authorities in matters such as this and the principles to be distilled from those authorities. At paras [3] to [6] I said:
‘[3] At this juncture, it is trite to observe that Courts and Tribunals must always adopt a cautious and careful examination of the facts and circumstances of a particular case when considering whether to dismiss a substantive application for want of prosecution by a defaulting party. In General Steel Industries Inc v Commissioner for Railways (NSW) and others (1964) 112 CLR 125, Barwick CJ held that the jurisdiction to terminate an action summarily, for want of a cause of action by the plaintiff, was to be sparingly employed and ought not to be used, save where the lack of the cause of action was clearly demonstrated. At pages 128 and 129 his Honour said:
“The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to Order 26, r. 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “be manifest that to allow them” (the pleadings) “to stand would involve useless expense”.
At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or “so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument”; “so to speak apparent at a glance”.
As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same.”
[4] Mason J said in Kioa v West (1985) 49 CLR 550 at 582:
“It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.”
[5] In Australian Railways Union; Ex parte Public Transport Corporation (1993) 117 ALR 17, the High Court, in observing the powers conferred on the Australian Industrial Relations Commission, said at pages 23 and 24:
“But the wide scope given to the Commission in determining the relief which it will give does not absolve it from an obligation to observe the rules of procedural fairness in exercising its arbitral function. In Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd ((1989) 167 CLR 513 at p519) this Court pointed out that it was well settled that the Conciliation and Arbitration Commission was bound to act judicially and that the Commission, as its successor, is bound to do likewise. The Court went on to point out that one aspect of the duty to act judicially is the duty to hear a party and to allow him or her a reasonable opportunity to present his or her case and, coupled with that duty, is the duty to consider the case put. And in Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty. Ltd ((1993) 67 ALJR 389, at p390; 112 ALR 193, at p194) the Court said that the Commission has a duty in considering an application to afford a party a reasonable opportunity to allow his or her case to be put.”
[6] I glean from these judgements that the principles to be considered by Fair Work Australia (FWA) in circumstances where a defaulting party, whose application is being considered for peremptory dismissal as a result of a failure to attend proceedings may be summarised as follows:
(a) the defaulting party must be given an opportunity to explain the reasons why the Tribunal should not dismiss his/her claim for a failure to attend the proceedings;
(b) the reasons (if any are given) must be considered in the context of ensuring the proper administration of justice and fairness to both parties. In my view, this is particularly so in a s 394 unfair dismissal application, given the emphasis in the Act of ensuring ‘a fair go all round’ as referred to in s 381(2) of the Act. That section is expressed as follows:
(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.
(c) the defaulting party should be made aware that an application to dismiss his/her substantive application is to be considered by the Tribunal;
(d) the defaulting party should be warned that a failure to attend the hearing of such an application, without a reasonable explanation, may result in the substantive application being dismissed; and
(e) the Tribunal should ensure that all reasonable steps are taken to give an absent party every opportunity to present themselves for hearing: See Grimshaw v Dunbar (1953) 1 All ER 350 at 355.’
[11] For completeness, I also refer to the decision of the Full Bench in Sayer v Melsteel Pty Ltd, supra above, in an appeal where an applicant claimed he had been denied natural justice by not being given an opportunity to be heard. At paragraphs 8 - 9, the Full Bench said:
‘[8] When these events are looked at objectively it is clear that there has been no denial of natural justice. Whether he was too ill to attend the hearing on 7 July or not, it is highly unlikely that he was so incapacitated that he was unable to send a message of any kind. But there is no evidence that he took any action to alert anyone to the fact he would not be attending. Mr Sayer was given an adequate opportunity to be heard. While it was open to the Commissioner to adjourn the matter, either generally or subject to some conditions, his decision to decide the matter in the applicant’s absence was not affected by error.
[9] Mr Sayer also submitted that if he were to be permitted to run his case he would have succeeded. In light of our conclusion on the first ground of appeal it is not necessary that we deal with that submission. When an applicant does not take the opportunity provided to prosecute their application, the application will usually fail. It is difficult to envisage circumstances in which it could be otherwise.’ (my emphasis)
[12] Applying the appropriate principles to this matter, I am well satisfied that the applicant has been given an opportunity to be heard and he has failed to do so. Unfortunately, his lack of diligence in this respect is compounded by his failure to comply with directions on two occasions and a failure to comply with an order for production. He was aware of the possible consequences of not doing so.
[13] In addition, given his failure to make any contact with FWA explaining his non attendance for a second time and his apparent indifference and non compliance with FWA’s other directions, I do not consider the interests of justice would be served by taking any further steps to encourage him to pursue his application. The respondent has been put to considerable cost in being legally represented on two occasions and with preparing documents. Its costs have now been thrown away and it is entitled to feel aggrieved.
[14] Moreover, from the only evidence I have before me, the likelihood of the applicant establishing that he was a person protected from unfair dismissal would appear to be remote; not to mention the other evidence advanced as to the merits of his case which, prima facie, do not appear to be particularly strong.
[15] In conclusion, the Act’s unfair dismissal regime in Part 3-4 is underpinned by the principle set out in s 381(2) of a ‘fair go all round’. Applying that principle, compels only one conclusion in this matter; that it must be dismissed for want of prosecution. An order to that effect will be issued contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
Mr J Farah, Sanford Legal, for the respondent
Hearing details:
2011
SYDNEY
20 and 26 July
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