Nicole Amy Jolley v Hebersham Friendly Grocer
[2011] FWA 622
•3 FEBRUARY 2011
[2011] FWA 622 |
|
DECISION |
Fair Work Act 2009
s 394 - Application for unfair dismissal remedy
Nicole Amy Jolley
v
Hebersham Friendly Grocer
(U2010/14031)
DEPUTY PRESIDENT SAMS | SYDNEY, 3 FEBRUARY 2011 |
Application for unfair dismissal remedy - failure of applicant to attend proceedings or comply with directions - want of prosecution - application dismissed.
[1] An application for an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (‘the Act’), was lodged by Ms Nicole Amy Jolley (‘the applicant’) on 10 November 2010. The applicant claimed that she was summarily dismissed, without warning by her employer, Hebersham Friendly Grocer (‘the respondent’) following the discovery of a cash discrepancy in the till, for which she was held accountable.
[2] However, on 24 November 2010, the respondent, through its representative, Mr C Indrele, filed an Objection to the Application (Form 4) on the grounds that the respondent is a small business employer as defined under Part 3-2 of the Act, and as the applicant had less than 12 months employment, she was not able to bring a claim of unfair dismissal. Notwithstanding that the respondent requested that the application be summarily discontinued, a conciliation conference was scheduled for 29 November 2010. This conference was cancelled following a request from the respondent that the application proceed to a jurisdictional hearing. Directions were issued by Fair Work Australia (FWA) for both parties to file and serve any submissions, evidence and other documentary material to support their respective positions.
[3] The respondent filed an affidavit of Mr Carlos Ferreira, Director. For the purposes of this decision, I need not traverse the detail of Mr Ferreira’s affidavit. No evidence or submissions were filed by the applicant. Consequently, I listed the matter for a non-compliance hearing on 17 January 2011. Mr Indrele appeared for the respondent. There was no appearance by, or on behalf of, the applicant. While Mr Indrele sought the dismissal of the application for want of prosecution, I decided that I would have my Associate advise the applicant by registered mail of the following:
In view of your non-attendance at today’s non-compliance hearing and your failure to comply with the directions of Fair Work Australia, his Honour has asked me to inform you that:
1. Mr C Irdele, Agent for the respondent employer, made an application today to dismiss your matter for want of prosecution.
2. Unless his Honour is advised by 4:00pm on Friday, 21 January 2011, that you intend to contest the employer’s application, it will be granted by his Honour in Chambers.
3. If you intend to contest the application, it will be listed for hearing on a date to be fixed.
[4] There was no contact made by the applicant by the prescribed time and there has been no subsequent communication from her as at the date of this decision. As a result, I now proceed to determine this matter.
CONSIDERATION
[5] 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.
[6] Another relevant consideration in this case is whether the applicant has any reasonable prospect of success with her substantive application. In her own originating material, the applicant said she had been employed by the respondent since 18 January 2010, and was dismissed on 30 October 2010. It was not disputed that the respondent engaged three to eight casual employees. I have no reason to doubt that the respondent engaged less than 15 employees at the time of the applicant’s dismissal. It would seem, therefore, that the respondent’s jurisdictional objection is soundly based and the applicant’s prospects of success are remote. It may also be the reason why the applicant, on reflection, has not pursued her unfair dismissal claim. Even so, this does not absolve her, or any other party for that matter, of an obligation to advise the Tribunal of her intentions, one way or another. At best, her failure to do so was discourteous to the Tribunal; not to mention the wasted time and cost to the respondent in preparing an affidavit and briefing Mr Indrele in the matter.
[7] In view of the history of this matter and having regard to the principles earlier referred to, I consider, in the interests of ensuring justice to both parties and applying the notion of a ‘fair go all round’, that this application should be dismissed for want of prosecution. The applicant has shown no interest, at all, in pursuing this matter; let alone pursuing it with due diligence. I can comfortably draw the conclusion that she has merely abandoned her claim. Accordingly, I propose to dismiss this application for want of prosecution under s 587 of the Act. An order to that effect will accompany this decision.
DEPUTY PRESIDENT
Appearances:
No appearance by the applicant
Mr C Indrele, Solicitor, for the respondent
Hearing details:
2011
SYDNEY
17 January
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