Nathan Steadman v The South Australian Potato Company Pty Ltd T/A SA Potato Company
[2011] FWA 1300
•3 MARCH 2011
[2011] FWA 1300 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Nathan Steadman
v
The South Australian Potato Company Pty Ltd T/A SA Potato Company
(U2010/13145)
COMMISSIONER HAMPTON | ADELAIDE, 3 MARCH 2011 |
Application for unfair dismissal remedy - matter listed for hearing following a directions conference - applicant contacted and advises not in a position to proceed - substantive hearing abandoned - opportunity afforded to applicant to seek relisting - applicant not contactable as advised - application by respondent to strike - whether vexatious claim or without merit - whether power exists to dismiss for failure to prosecute application - unfair dismissal application dismissed.
Background
[1] The applicant, Mr Nathan Steadman, made application for a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The respondent in this matter is the South Australian Potato Company Pty Ltd T/A SA Potato Company (the respondent).
[2] The applicant was dismissed by the respondent on the grounds of alleged serious and wilful misconduct. That misconduct is said to have been a “threat” made through an independent person that he felt like bringing a gun to SA Potato and shooting people. According to all of the material filed by applicant, he denies that he made that threat.
[3] Following the unsuccessful conciliation of the matter, and the issuing of standard pre-arbitration directions by Fair Work Australia, the application was assigned to me to hear and determine. The original date for the arbitration of this matter was set done for 16 February 2011. 1
[4] As a result of a telephone directions conference conducted by myself on 14 February 2011, the matter was set down to be heard on 28 February 2011 in Adelaide. The hearing of the matter and the associated directions were confirmed to the parties in writing on the same day as the directions conference.
[5] On 28 February 2011 the unfair dismissal application was dismissed by me at the request of the respondent. The following outlines the events leading to that course of action and the reasons for my decision.
The events leading to the scheduled hearing of the matter
[6] Upon being assigned the matter, it was apparent to me that the parties, who were not professionally represented, were not ready to proceed with the hearing on the day then assigned.
[7] It became apparent that the applicant intended to rely upon the evidence of Ms Allen, who had been nominated to assist him with the case, however a witness statement was not filed despite earlier directions from the Tribunal. Equally, although a comprehensive outline had been lodged by a former Business Development Manager of the respondent who apparently made the decision to dismiss the applicant, this was not in the form of a witness statement and there was no indication that he was to attend the hearing. Further, an indication from the respondent in the written outline that the person who is alleged to have heard the threat could give evidence if summonsed, was not formalised and accordingly, not dealt with.
[8] As a result, on 14 February 2011 I convened a directions conference via telephone. The applicant and Mr Psevdos, a manager with the respondent, directly participated in the conference.
[9] Having clarified the intentions of the parties, I advised that the matter would be set down for hearing in the week commencing 28 February 2011, with Monday 28 being the probable day. Further, that subject only to confirmation as to whether the independent witness was to be summonsed, directions would be issued requiring the parties to file any additional witness statements. The purpose and conduct of the hearing, the nature of the directions and the timeframes involved were discussed with the parties during the directions conference.
[10] Having discussed the intended process directly with the applicant and the respondent’s representative I was satisfied that both understood the purpose and likely conduct of the hearing, and importantly, their obligations to be ready to proceed.
[11] A notice of sitting (for 10.00am Monday 28 February 2011) together with the directions issued by the Tribunal was forwarded to both parties on the afternoon of the directions conference. In the case of the applicant, this was done using his nominated postal address (via Ms Allen) and via his nominated email.
[12] I add that a summons and subpoena to attend the hearing and bring documentation were issued to the independent person who had allegedly heard the threat said to have been made by the applicant. This was advised to the applicant.
[13] On 14 February 2011, Fisher Jeffries, Solicitors for the respondent, filed and served a notice of representative seeking to act, and on 15 February 2011 they sought that their request for permission be determined in advance of the scheduled hearing. I interpose that during the course of the directions conference, the respondent advised that it may seek to be represented. I indicated that under the Act, such required permission and that if this was intended, the representative would need to be made aware of the scheduled hearing and the directions to be formally issued.
[14] On 18 February 2011, the respondent filed and served a comprehensive witness statement in accordance with the directions.
[15] Having provided an opportunity for the applicant to make comment on the application for permission, on 22 February 2011, I granted permission pursuant to s.596 of the Act 2 for the respondent to be represented and ensured that this was communicated to both parties.
[16] In relation to the application for permission, the applicant was provided with copies of documents via his nominated email address.
[17] In the lead up to the scheduled hearing, on Thursday 24 and Friday 25 February 2011 my office sought to contact the applicant via his mobile phone (and that belonging to Ms Allen - which was apparently disconnected). The purpose being in part to ensure that the applicant knew where he was to attend and that he needed to be ready to proceed at the scheduled time. Eventually, the applicant responded and advised my Acting Associate that he would not and could not attend the hearing on Monday as he would then be interstate; the “court” date had not been confirmed; and he didn’t have the (respondent’s) witness statements. Upon being advised of the events outlined above, the applicant indicated that he had expected that the Tribunal would ring him after the directions conference and this had not happened. The applicant did however confirm that the mail and email addresses as used by Fair Work Australia were correct but indicated that his email had “been down for a couple of weeks”.
[18] Given that the applicant advised that he would not attend the scheduled hearing, I determined to abandon the substantive hearing and list the matter on Monday 28 February 2011 with the applicant attending by telephone. The purpose of the hearing became in effect to deal with any application by the applicant to have the substantive hearing relisted as opposed to the unfair dismissal matter being dismissed. This was advised to the applicant and the respondent by my Acting Associate who directly confirmed to the applicant that he must be available at the scheduled time on the nominated telephone number.
[19] The purpose of the hearing on 28 February 2011 was confirmed in part through a text message sent to the applicant (using the same telephone number used a few minutes earlier by the applicant to text Fair Work Australia) in the following terms:
“Mr Steadman, confirming that the hearing on Monday will not proceed to a full hearing. You are to appear by telephone (FWA to call at 10:00am) to explain why the application should be adjourned and not dismissed. Associate/FWA” 3
[20] On 28 February 2011, despite numerous attempts to contact the applicant as arranged with him on the previous Friday, undertaken both immediate prior to the scheduled hearing and for a period of some forty minutes after that time, the applicant could not be reached. The applicant’s phone was apparently turned off and no contact was made by the applicant with Fair Work Australia to advise of any alternative arrangements. In these circumstances, I determined that any application to be made by the respondent would be heard forthwith.
[21] I add that despite leaving messages with the applicant and subsequently providing a copy of the transcript of proceedings, no contact has since been made with Fair Work Australia by the applicant at any time leading up to the decision.
The respondent’s application to strike the unfair dismissal application
[22] Mr Cappola (of counsel) who appeared with permission for the respondent made an application that the unfair dismissal matter be dismissed on two alternative grounds.
[23] Firstly, that the application should to be dismissed pursuant to s.587(1)(b) of the Act on the basis that it has been brought for a vexatious purpose and without proper merit. This was contended on the basis that the applicant has shown no interest in prosecuting the matter. He further contended that the applicant had the opportunity to present the evidence in support of his application and to contact the Tribunal, and that had not been done.
[24] In the alternative, the respondent argued that the application should be dismissed for want of prosecution. In that regard, Mr Cappola contended that the Tribunal may dismiss an application for grounds other than that as expressly provided in s.587 of the Act.
The provisions of the Act
[25] Section 587 of the Act provides 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.”
[26] The substantive application in this matter has not been made under either s.365 or s.733 of the Act.
[27] Further, ss.577 and 578 of the Act provide as follows:
“577 Performance of functions etc. by FWA
FWA must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.
Note: The President also is responsible for ensuring that FWA performs its functions and exercises its powers efficiently etc. (see section 581).
578 Matters FWA must take into account in performing functions etc.
In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), FWA must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”
[28] The statutory objects specifically relevant to this present jurisdiction are provided by s.381 as follows:
“381 Object of this Part
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(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.
Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”
[29] In my view, these provisions provide further context in which Fair Work Australia should consider the potential dismissal of an application in the circumstances applying in this case.
Consideration
[30] The operation of s.587(1)(b) of the Act was recently discussed by a Full Bench in Brent Gorman v Australia Post[2010] FWAFB 9413. 4 In that case it was found that the dismissal of an application on the basis of it being frivolous or vexatious requires an inquiry to be primarily directed to the substance of the unfair dismissal application.5
[31] In this matter, the allegations against the applicant were very serious although they have been denied by him and at the time of the scheduled hearing the direct evidence supporting those allegations was not yet before Fair Work Australia. There were also questions arising from the considerations established by s.387 of the Act that would need to be determined in light of any findings made as to the threat. 6 On that basis, it could not be said that the application itself was frivolous or vexatious.
[32] For my part, I would take the view that an application could be considered to have no reasonable prospects for success as contemplated by s.587(1)(c) of the Act in circumstances where an applicant fails to attend a hearing to provide evidence to support his/her application. In any event, it is clear that s.587(1) does not purport to be a complete code in relation to the circumstances where an application may, on proper grounds, be dismissed. That much is confirmed by its introduction.
[33] Given the objects of the Act, and in particular those set out in s.381, it could not possibly have been Parliament’s intention that an unfair dismissal application of this nature would be immune from being struck out where the applicant’s conduct had become an abuse of process. The statutory charter and powers of Fair Work Australia require that there be limits on the extent that the dilatory conduct of a party can be inflicted on the other side.
[34] Sams DP recently discussed the principles that might be applied in such circumstances in Richard Carter v The Hanna Group Pty Ltd 7 and I would in general terms respectfully adopt his summation which he expressed in the following terms:
“[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.”
[35] In this case, the applicant’s conduct clearly amounts to an abuse of process and grounds to strike out the unfair dismissal application. Without detailing all of the considerations leading to that conclusion, the following factors are sufficient to demonstrate and support that finding.
[36] The applicant was afforded a reasonable opportunity to present his substantive case and in the alternative to explain why the matter should be relisted. He has not taken that opportunity or even attempted to contact the Tribunal to explain why he has not done so. The applicant was clearly on notice that the purpose of the revised hearing on Monday 28 February 2011 was in effect to explain why the application should not be dismissed.
[37] Even if the applicant genuinely considered that he was to be telephoned by Fair Work Australia after the directions conference to confirm the hearing date (which was not the case), the timing for the arbitration and the associated arrangements were directly discussed with both parties during the directions conference. Further, the hearing and associated arrangements were confirmed shortly thereafter using the applicant’s nominated contact details as previously used.
[38] In any event, and based upon the explanation that he has provided, there has been no apparent effort made by the applicant to contact Fair Work Australia or the respondent to pursue his matter, despite his awareness that it had been set down for a hearing. Further, despite being given a further opportunity to file a witness statement for Ms Allen, this has also apparently not been progressed.
[39] The applicant’s email address is a so called hotmail account. I understand that this means that it could be accessed from any internet connected computer, including free access in public libraries, and even if the applicant was having computer problems he clearly took no steps to deal with the problem or contact Fair Work Australia despite his knowledge that the matter had been set down for hearing and his email address was being used by the Tribunal.
[40] In contacting the applicant, my office took steps to ensure that the applicant did not need to rely upon his own phone credit. 8 I also note that the importance of maintaining the correct contact details as supplied to Fair Work Australia was emphasized to both parties following the conciliation process9 and appropriate contact details as confirmed by the applicant were used by the Tribunal and the respondent.
[41] Whilst the applicant does not bear any responsibility for the respondent’s decision to brief counsel, the need for the respondent’s witnesses to attend the scheduled hearing and the probable summons for the independent person were known to him as a result of the directions conference. The lack of any apparent preparation to attend and/or the absence of any attempts to contact Fair Work Australia in the lead up to the hearing in that knowledge, is totally unreasonable.
[42] Finally, even if I were to take the most generous view of the earlier events and the applicant’s conduct, the failure of the applicant to participate by phone in the hearing on Monday 28 February or even contact the Tribunal in some way, was, in the context of the events of the previous Friday, inexplicable.
Conclusions
[43] The applicant has been given a reasonable opportunity to have his application heard and he has failed to provide any reasonable basis for not being in a position to present his case despite a further opportunity to do so.
[44] The applicant’s conduct is dilatory, discourteous and unacceptable and represents both an abuse of process and a failure to prosecute (advance) his own application in a reasonable manner.
[45] In all of these circumstances, it was appropriate that the unfair dismissal application be dismissed. An order 10 to that effect has been made.
COMMISSIONER
Appearances:
No appearance by the applicant.
G Cappola (of counsel) with permission for South Australian Potato Company Pty Ltd T/A SA Potato Company.
Hearing details:
2011
Adelaide
February 28.
1 Due to member availability that was subsequently changed to the following day.
2 I took the view that the matter would be more effectively dealt with by Fair Work Australia if the respondent was represented. It was also clear that the respondent was not in a position to effectively represent itself given its lack of any specialist resources and the fact that the actual decision maker was no longer employed within the business and had to be called to give evidence.
3 File note.
4 An application for Judicial review of this decision has been taken and is yet to be determined.
5 At par [13].
6 There was on face value no apparent opportunity given by the respondent for the applicant to respond to the allegations prior to the dismissal (s.387(c)).
7 [2011] FWA 31, 14 January 2011.
8 This was done as the applicant was given dispensation from the prescribed application filing fee.
9 Conciliator Cashen wrote to both parties on 16 November 2010 and helpfully set out the process to follow and confirmed that it was important to advise FWA of any changes in address.
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