Mustapha El Mesaoudi v Virgin Australia (Operations) Pty Ltd
[2012] FWA 4455
•25 MAY 2012
[2012] FWA 4455 |
|
DECISION |
Fair Work Act 2009
s 394 - Application for unfair dismissal remedy
Mustapha El Mesaoudi
v
Virgin Australia (Operations) Pty Ltd
(U2011/13697)
DEPUTY PRESIDENT SAMS | SYDNEY, 25 MAY 2012 |
Application for unfair dismissal remedy - proceedings part heard - failure of applicant to attend further proceedings or comply with directions of Fair Work Australia - want of prosecution - application dismissed.
INTRODUCTION
[1] This unfair dismissal application was adjourned, part heard, on 6 March 2012. However, on 12 April 2012, pursuant to s 587 of the Fair Work Act 2009 (‘the Act’), I dismissed the application for want of prosecution and a failure by the applicant to comply with directions in respect to further proceedings in the matter. What follows are my reasons for doing so.
[2] On 18 November 2011, Mr Mustapha El Mesaoudi (‘the applicant’) filed an unfair dismissal claim, pursuant to s 394 of the Act, following his dismissal on 4 November 2011, by Virgin Australia (Operations) Ltd (‘the respondent’). The reasons for the applicant’s dismissal are not necessarily relevant for the purposes of this decision. Nevertheless, it is sufficient to note that the applicant commenced employment with the respondent as an international cabin crew member on 26 July 2010 and was dismissed for the following reasons:
1. A Show Cause notice was issued for Serious Misconduct on 20/06/11 & 30/06/11 regarding an alleged submission of fraudulent documentation through your ASIC application and failure to act honestly in your interactions with us.
We reserve our rights to continue our investigation post advice that you had sustained a significant injury that resulted in your inability to participate in the disciplinary process.
2. After your notification of injury, you were requested on multiple occasions to provide supporting evidence explaining your non-attendance at meetings, your inability to participate in the performance process and to support your ongoing absence from the workplace.
Your failure to comply with the reasonable and lawful directives outlined above resulted in a Formal Warning being issued on 21 September 2011.
A further allegation letter for failure to comply with these directives was issued on 21/09/11.
We reserved our rights to continue our investigation after the provision of limited medical documentation. The documentation did not satisfy all of our requests and led to further investigation by us.
Most recently, you were issued with an allegation letter outlining Serious Misconduct on 27/10/11. Specifically, we alleged that you provided misleading information regarding your injury, you had failed to follow reasonable directives regarding the provision of information supporting your absence from the workplace since the 8th October 2011 and you had failed to maintain contact with the organisation.
You were directed to attend a meeting on 1st November 2011 to respond to these allegations. You failed to attend this meeting and preliminary notification of the decision to terminate your employment was issued on the 2nd November 2011. Your response provided on the 2nd November asserted that you had no knowledge of the meeting on the 1st November.
You provided multiple responses dated 2nd, 3rd and 4th November via email. These responses did not address the concerns we had raised and after consideration of all contributing factors, we have decided to terminate your ongoing employment effective immediately for breach of Virgin Australia policies and your contract of employment.
You will be paid 4 weeks pay in lieu of notice and any outstanding entitlements. Your final pay will be processed on return of all company property to Sydney Airport. Please find enclosed a finishing up check-list that will be required to be completed.
Dave Henning
Manager, Cabin Crew
PROCEEDINGS BEFORE
FAIR WORK AUSTRALIA
[3] The applicant was originally represented by a solicitor from the Kingsford Legal Centre who subsequently filed a notice of ceasing to act. The matter was not settled at conciliation and was subsequently allocated to me for arbitration on 5 and 6 March 2012. Both parties filed submissions and evidence in preparation for the arbitration. The proceedings did not conclude on the second day and, by consent, were adjourned to complete the evidence and final submissions on 4 April 2012. However, on 2 April 2012, the applicant notified my Chambers, by email, that he had just commenced new employment and that he sought an adjournment of the 4 April 2012 listing to a date after 25 June 2012, as he claimed he was unable to take leave to attend a hearing until after the completion of a 12 week probation period with his new employer. The same day, the respondent notified my Chambers that it objected to the applicant’s request for an adjournment, as travel had been booked for witnesses and Counsel had been organised to attend the proceedings on 4 April 2012. In light of the respondent’s objections and the listing date two days later, attempts were immediately made by my Chambers to contact the applicant. A voicemail message was left on the applicant’s phone and an email sent to him requesting he urgently contact Chambers regarding a time and date for a further directions hearing. The applicant did not respond. Nevertheless, he made himself available on 4 April 2012, for a telephone hearing.
[4] Counsel for the respondent, Mr T Saunders, opposed the adjournment application on the following grounds:
● the adjournment application was made extremely late - the date having been agreed as 4 April 2012;
● the application was not supported by any evidence to confirm that he had a new job;
● he had previously told the Tribunal he had commenced employment, but he now says he only had an offer of employment; and
● there was no evidence of the name of the new employer or the reasons why the applicant could not be released during a 12 week probation to attend his hearing.
[5] Mr Saunders put that, at the very least, supporting documentation from his new employer should be provided to the Tribunal before any adjournment application is considered. The applicant put that he would be happy to provide such evidence to the Tribunal. I note that he claimed that he was working in a casual position with flexible hours for a company called B & M Construction. He then said he was working full time.
[6] Directions were issued accordingly and required compliance by 11 April 2012. However, on that day, the applicant emailed my Chambers to advise that he could not provide any supporting documentation due to the absence of his new employer over the Easter period. He requested an extension of time to do so. The respondent replied as follows:
In relation to those events, the Applicant has failed to demonstrate on any level any of the following:
● that he was unavailable on 4 April;
● that if he were unavailable on 4 April;
○ employment commitments played any part;
○ he would not have been available for a resumed hearing within the past 7 days (and for an apparently unclear period following today),
based on the fact that neither he nor his employer appear to be at work at the moment.
The Applicant appears to be intending to rely exclusively on some form of correspondence from his alleged employer to support a further adjournment, and provides no alternate evidence in support of his application. The Applicant's conduct of these proceedings reflects the very concerns which are evident in the Respondent's management of the Applicant in his employment and its decision to terminate.
In the circumstances and recognising it is a matter for FWA:
● the Respondent does not consent to the Applicant's request for an extension of time; and
● it may be appropriate to convene a directions hearing for the Applicant to properly inform FWA and for FWA to assess an appropriate response.
[7] A further mention and directions hearing by telephone was listed for 4:00pm on 12 April 2012. The applicant was advised, but could not be contacted and did not respond to correspondence or to telephone calls directing that he attend.
[8] At the hearing, Mr Saunders submitted that the application should be dismissed. He said the applicant was not treating his claim seriously and had failed to comply with FWA’s reasonable directions. As a result, I issued the following self-executing directions:
1. The applicant is to file and serve on Fair Work Australia (‘FWA’) and the respondent any evidence, submissions and other materials, in support of his application for an adjournment of this matter by 4pm, Tuesday 17 April 2012.
2. The applicant is to file and serve on FWA and the respondent an Affidavit by 4pm, Tuesday 17 April 2012, setting out:
i) The identity of his current employer;
ii) The date that he commenced employment with his current employer;
iii) Hours worked from the date in which he commenced employment with his current employer, and, in particular, the hours he worked on 4 April 2012;
iv) Why he was not available to prosecute his case at FWA on 4 April 2012; and
v) Why he is not available until 25 June 2012 to prosecute this application.
B. Failure by the applicant to comply with Directions [1] and [2] (above), will result in his unfair dismissal application (U2011/13697) being dismissed by FWA for want of prosecution.
[9] There was no response from the applicant and there has been no attempt by him to contact FWA at any time since 4 April 2012.
CONSIDERATION
Legislation and Principles
[10] Section 587 of the Act sets out the basis on which FWA may dismiss an application for want of prosecution. It reads as follows:
587 Dismissing applications
(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.
(2) Despite paragraphs (1)(b) and (c), FWA 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) FWA may dismiss an application:
(a) on its own initiative; or
(b) on application.
[11] In a recent decision - Carter v The Hanna Group Pty Ltd[2011] FWA 31 - I dealt with the principles to be applied by FWA in the circumstances of an applicant not prosecuting his/her unfair dismissal claim with due diligence. 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.
Applying the principles
[12] At the outset, I find it incredulous and extraordinary that the applicant appears not to have any documentation concerning his alleged new employment or that he is unwilling or unable to provide such evidence. It could be as simple as a pay slip or a roster. He claimed to have a letter of offer. I have no idea why he has chosen not to verify, in any way, that he has obtained new employment. In addition, there has been nothing provided to FWA to demonstrate that the employer prevents the applicant from attending his proceedings in the Tribunal during his probationary period. Moreover, he firstly said that he commenced employment, but then said that he had only received an offer of employment. He also said that he was a casual employee with flexible hours and then said that he was full time. His changing stories give me little confidence as to the applicant’s bona fides.
[13] I observe that the applicant has made no contact with FWA or the respondent since 4 April 2012. If he has secured alternative employment - then good luck to him. But that does not absolve him of properly informing the Tribunal of his situation or of explaining why he was constantly requesting extensions of time. His conduct is disrespectful and unacceptable; and that is not to mention the cost and inconvenience for the respondent in preparing witness statements for this case and the briefing and attendance of Counsel and Virgin representatives at the hearing on 5 and 6 March 2012.
[14] There is much force to Mr Saunder’s submission that the applicant’s conduct is entirely consistent with how he treated the disciplinary process leading up to his dismissal. As the chronology of events demonstrates, the applicant sought numerous extensions of time and raised unlikely excuses and diversions, such as complaints against management, for not attending disciplinary meetings and not responding to the allegations made against him. For example, his explanation for why he told his employer that he was in Brisbane when he was in Sydney and then using another name (Matthew Daley) in order to get to Brisbane to connect with a Los Angeles bound flight and thereby creating a real security alert, was particularly curious and inexplicable. On the other hand, the respondent displayed considerable patience and gave the applicant the benefit of the doubt in attempting to have him co-operate in the disciplinary process. As will be seen from par 2 above, the period from the show cause letter to dismissal was almost five months.
[15] It is for these reasons, and having heard a considerable amount of evidence so far (including all of the applicant’s cross-examination), that I consider that the applicant’s prospects of success are not particularly great. One might speculate that this may well be the reason why he has chosen not to prosecute his claim any further. However, given the history of the matter, the evidence I have heard so far and having regard to the principles earlier referred to, I determine that the interests of justice will be best served by dismissing this application. As required by s 381(2) of the Act, the notion of applying a ‘fair go all round’ only fortifies my conclusion in that regard.
[16] Accordingly, I confirm that this application is dismissed for want of prosecution and an order to that effect will accompany this decision.
DEPUTY PRESIDENT
Appearances:
5 and 6 March 2012: Mr M El Mesaoudi (unrepresented)
12 April 2012: No appearance by applicant
Mr T Saunders of Counsel for the respondent
Hearing details:
2012
SYDNEY
5 and 6 March, 12 April
Printed by authority of the Commonwealth Government Printer
<Price code C, PR524309>
0