Phillip Arthur v Royal Freemasons Benevolent Institution

[2019] FWC 4958

[2019] FWC 4958

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Phillip Arthur
v
Royal Freemasons Benevolent Institution
(U2019/1942)

DEPUTY PRESIDENT BOYCE SYDNEY, 19 JULY 2019

Application for an unfair dismissal remedy — dismissing applications — whether matter should be dismissed for want of due prosecution — where an applicant is allegedly confined for medical reasons or similar — where applicant has failed to respond to inquiries from the Fair Work Commission — where applicant has failed show cause as to why the matter should not be dismissed

[1] On 23 February 2019, Mr Arthur Phillips (Applicant) filed a Form F2 with the Fair Work Commission (Commission). That application was lodged pursuant to s.394 of the Fair Work Act 2009 (Act), being an application for remedy from an alleged unfair dismissal. The respondent in this matter is the Royal Freemasons Benevolent Institution (Respondent).

[2] Pursuant to s.587(3)(a) of the Act, I have determined that this matter should be dismissed for want of (or lack of) due prosecution. My reasons for making this decision are as follows.

Background

[3] From 11 February 2013, the Applicant claims he was employed by the Respondent. 1 The Respondent confirms that the Applicant was employed as a Care Services Employee.

[4] The Applicant further claims that the Respondent terminated his employment on 4 February 2019.

[5] The Respondent asserts that it terminated the Applicant’s employment due to alleged serious misconduct — specifically, that the Applicant had assaulted an elderly resident of the Respondent and failed to properly document the incident. The Applicant was latter charged by the Police regarding that assault. 2

[6] The Applicant says that the internal investigation that resulted in his dismissal was not carried out according to policy and procedure, and that the investigation was flawed insofar as the evidence did not prove he assaulted the resident, hence the Applicant asserts that his dismissal was unfair.

[7] On 5 April 2019, the Commission held a telephone conciliation in order to provide the parties an opportunity to resolve the dispute. The parties could not reach agreement, however, and the matter was allocated to my Chambers to be programed for arbitration.

[8] On 7 June 2019, the Applicant appointed Mr Jeremy Mauli to act as his representative and support person in this matter. It is noted that Mr Mauli was not, at all times, a lawyer or paid agent.

[9] After an initial failed attempt to convene parties for a Directions hearing by telephone, a Directions hearing was held on 17 June 2019. Directions were issued to parties on that same day.

[10] On 20 June 2019, Mr Mauli filed a Form F52 with Chambers, seeking an order that the Respondent produce certain documents. Those documents related to confidential medical information about the alleged assault victim.

[11] On 26 June 2019, I held a hearing regarding the orders sought and to allow the Respondent an opportunity to respond to the request for production. Neither the Applicant nor Mr Mauli attended that hearing, despite having been sent a Notice of Listing.

[12] At the hearing, the Respondent contended that the documents were subject to a special confidentiality regime, and that their release required approvals from the government. Further, the Respondent contested the relevance of the documentation to the matter at hand. In brief, I accepted the Respondent’s position and dismissed the Applicant’s request for the production of documents.

[13] On 2 July 2019, my Associate sent an email the Applicant and Mr Mauli, instructing the Applicant to confirm his intention to proceed to a full hearing on the matter.

[14] On the same day, Mr Mauli responded and informed Chambers that the Applicant had been committed to a mental health care facility and was to be confined for an undetermined period of time.

[15] Again on the same day, my Associate wrote the Applicant and Mr Mauli as follows:

“The Applicant, or the Applicant’s support person, is required to supply medical evidence to support the assertions made in the email below by 3:00pm AEST on Friday, 5 July 2019.

Subject to such medical evidence being provided, it is likely that the Hearing will be vacated and a further Directions hearing held at a time and date to be advised.

Should such evidence not be forthcoming, or no reasonable explanation provided for the failure to do so, the Deputy President will move to consider whether the matter should be dismissed.”

[16] To date, neither the Applicant nor Mr Mauli has responded to that email, let alone provided the medical evidence sought.

Relevant law

[17] Section 587 of the Act provides that the Commission may dismiss an application on its own initiative. It reads:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC 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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC 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) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[18] The words, “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c), but extends to the Commission’s inherent power to control its own process.

[19] I also note that the Commission may dismiss an unfair dismissal application under s.399A of the Act upon application by an employer, including on the basis that an applicant has unreasonably failed to attend a hearing or conference in respect of the matter (conducted by the Commission), and/or for a failure by an applicant to comply with a direction or order of the Commission. However, s.399A does not limit the Commission’s power to dismiss an unfair dismissal application where an employer has not made an application under s.399A.

Consideration

[20] The Applicant has been granted many indulgences by the Commission in the programming of this matter to hearing. Such indulgences are set out in the background to this decision.

[21] Most significantly, when the Commission contacted the Applicant to confirm his attendance at the hearing, the Applicant did not respond. Whilst Mr Mauli did respond and advised that the Applicant was confined due to alleged mental illness, neither the Applicant nor Mr Mauli have responded to the Commission’s requests for further information and/or documentation to support the allegations as to the Applicant’s confinement.

[22] Moreover, the Applicant has not applied for, or otherwise requested, an adjournment of the hearing set down for 11 August 2019 (being a hearing previously programmed by the Directions made on 17 June 2019).

[23] Whatever the Applicant’s circumstances, his failure to engage with the Commission, or otherwise have his nominated support person/representative engage with the Commission in a timely fashion or at all, is totally unacceptable. The situation cannot be permitted to continue on an on-going and/or indefinite basis.

Matter dismissed

[24] In light of the above, I dismiss the application for want of due prosecution. Despite being given an opportunity to do so, the Applicant has made no submissions (or otherwise contacted the Commission) to persuade me to do otherwise.

[25] An order to the foregoing effect will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   It is to be noted that the Respondent says the Applicant was employed from 13 February 2013 but this contested fact is on no consequence to this Decision, and so I make no finding either way.

 2   It is also noted that the charges against the Applicant were later withdrawn and no hearing regarding the alleged criminal conduct occurred.