Paul Esposito v Customer Service Benchmarking Australia Pty Ltd

[2014] FWC 1525

[2014] FWC 1525

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Esposito
v
Customer Service Benchmarking Australia Pty Ltd
(U2011/8643)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 5 MARCH 2014

Application for relief from unfair dismissal dismissed.

[1] Mr Paul Esposito was employed by Customer Service Australia Benchmarking Pty Ltd (CSB) from August 2007 until his employment was terminated on 25 May 2011. Mr Esposito said the termination of his employment was unfair.

[2] The application was referred to conciliation on 18 July 2011 but the matter did not settle.

[3] Directions were issued to the parties for the filing of material in August 2011.

[4] On 8 July 2011, Mr Esposito advised that he was unwell and needed an extension of time to file his material. On 9 August 2011, the then panel head adjourned the matter on the basis that the matter would not proceed until Mr Esposito provided a medical certificate confirming that he had the physical and mental capacity to proceed with the application. A copy of that advice was provided to both Mr Esposito and CSB.

[5] CSB contacted Fair Work Australia, now the Fair Work Commission (the Commission), in August 2011 expressing concerns about the adjournment and was advised to put those concerns in writing. However, CSB took no further action in regard to this objection.

[6] The Commission unsuccessfully attempted to contact Mr Esposito by telephone in January 2013 and sent him an email on 23 January 2013 asking him to contact the Commission about his case. Mr Esposito did not respond to this email.

[7] On 10 January 2014, a letter was sent to Mr Esposito asking if he wished to proceed with his application and advised that his application would be listed for a mention.

[8] On 23 January 2014, Mr Esposito replied advising that he wished to continue with his application but “[his] circumstances with regards to the delays remain somewhat unchanged.”

[9] On 28 January 2014, CSB sent the Commission an email objecting to the delay in this matter.

[10] On 4 February 2014, CSB filed an application for the matter to be dismissed pursuant to s.587 of the Fair Work Act 2009.

[11] In support of the application CSB relied on Mr Esposito’s non prosecution of his case. He had made no attempt to contact the Commission since 2011. CSB also points to the prejudice that they would suffer if the matter were to proceed given that the staff involved in the original dispute had left. It submitted that as Mr Esposito had produced no evidence to support his claim it had no reasonable prospects of success.

[12] A mention of this matter was held on 11 February 2014 but Mr Esposito did not participate. On the same day a copy of CSB’s application to dismiss was provided to Mr Esposito. Mr Esposito was given until 25 February 2014 to respond to the application.

[13] On 17 February 2014, Mr Esposito sent an email requesting a further mention. That application was denied and Mr Esposito was advised that he needed to file material in response to CSB’s application.

[14] On 25 February 2014, Mr Esposito filed material. He attached a medical certificate which was dated 10 July 2012 and was for the period 11 July 2012 to 8 October 2012. That medical certificate advised that Mr Esposito suffered an illness which meant he was not fit to work and advised that he needed to be assessed for a permanent disability. Mr Esposito’s material was not responsive to the matters raised in CSB’s application.

[15] The Commission is empowered to dismiss a claim if there are no reasonable prospects of success. In exercising its powers in relation to unfair dismissal matters, the Commission is required to ensure that a fair go all round is accorded to both the employer and the employee concerned.

[16] Mr Esposito has taken no steps since 2011 to prosecute his claim. He did not respond to attempts to contact him by phone and by email in early 2012. . There is no medical evidence before the Commission that explains why he took no action in relation to his claim since 2011. The medical certificate provided expired in 2012.

[17] While CSB was informed in 2011 that the matter was adjourned indefinitely and did not object to that course, CSB were not subsequently provided with an opportunity to be heard on the future progress of the matter.

[18] I accept the submission of CSB that they will suffer prejudice if this matter were to proceed to hearing given the substantial time that has passed since Mr Esposito’s employment was terminated.

[19] The decision to dismiss is discretionary. In this case I must weigh up Mr Esposito’s right to have his case heard against CSB’s right to have had this matter dealt with in a timely manner. Mr Esposito has given no indication of when he would be able to prosecute his claim.

[20] I find that given Mr Esposito’s failure to prosecute his claim, his claim has no reasonable prospects of success and his application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

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