Ricardo Munozv.Cadden and Crowe Pty Limited

[2011] FWA 6850

[2011] FWA 6850

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 — Application for a remedy for alleged unfair dismissal

Ricardo Munoz
v.
Cadden and Crowe Pty Limited
(U2011/7548)

COMMISSIONER CONNOR WOLLONGONG, 5 OCTOBER, 2011

Applications for alleged unfair dismissal - Jurisdictional issues - dismissed for Want of Prosecution

[1] On Monday, 2 May, 2011 Mr Ricardo Munoz lodged an application under s.394 of the federal Fair Work Act, 2009 (the FW Act) to Fair Work Australia (FWA) claiming that he had been unfairly dismissed by Cadden and Crowe Pty Limited on Friday, 15 April, 2011 after over two years of employment. The matter did not proceed to conciliation by telephone conference in the standard manner when Cadden and Crowe indicated that they were not prepared to conciliate with respect to the claim.

[2] The matter was allocated to me and I set it down for a conference and programming on Monday, 1 August, 2011 and Friday, 5 August, 2011 in the premises at 90 Crown Street, Wollongong which Fair Work Australia now shares with the Industrial Relations Commission of New South Wales.

[3] There are, in fact, several significant jurisdictional issues which affect Mr Munoz's application, viz:

* Cadden and Crowe claim that Mr Munoz was engaged as an independent contractor under a contract worker agreement and not as an employee and, as such, would fall outside the jurisdiction for a s.394 application, which is confined only to the termination of the services of an employee [s.386(1)]: Mr Munoz disputes that claim, however.

* Under the contract worker agreement Mr Munoz was actually assigned to work for Orica Watercare, a client of Cadden and Crowe, initially for a fixed term — from Wednesday, 28 October, 2008 to 30 January, 2009 — but subsequently extended on numerous occasions for short terms up to Friday, 15 April, 2011 at which time the contractual relationship between Orica Watercare and Cadden and Crowe was terminated and with it the engagement of Mr Munoz with Orica Watercare. Cadden and Crowe assert, therefore, that, were it to be established that an employment relationship existed (with Orica Watercare rather than Cadden and Crowe), it was of a fixed term only, now expired and outside the jurisdiction of a s.395 application [s.386(2)].

* Cadden and Crowe understand that situation arose from a decision of Orica Watercare to generally reduce surplus contract labour, ie it was akin to a retrenchment. Genuine retrenchments are also excluded from jurisdiction [s.396(d)].

* Cadden and Crowe have offered to find alternative work for Mr Munoz, if and when it becomes available, consistent with the terms of the contract work agreement but it claims that the contractual relationship with it has not actually been terminated. The question therefore arises whether or not Mr Munoz can legitimately claim that he has, in fact, been dismissed at all for the purposes of s.394.

* Mr Munoz lodged his s.394 application marginally outside the 14 day time limit prescribed by s.394(2) — 17 days.

[4] A further attempt at conciliation before me on Monday, 1 August, 2011 and Friday, 5 August, 2011 was unsuccessful. The matter was to proceed to hearing on Wednesday, 5 October, 2011.

[5] I was subsequently informed by Mr Magee, representing Cadden and Crowe in the proceedings that the matter has been settled by conciliation but I have received no advice to that effect on behalf of Mr Munoz. Nor did Mr Munoz or any representative on his behalf appear in the hearing. Nevertheless, Mr Magee informed me that a deed of release had been executed by both parties to conclude the matter. Attempts to reach Mr Munoz's representative in the hearing to confirm that fact was not successful.

[6] I do not believe that it would not be appropriate for me to conclude this matter on the advice received from the purported employer alone. And I have to say that with the substantial jurisdictional issues which I have described earlier in this decision, the prima facie view I have formed is that Mr Munoz's application under s.394 may have some difficulties. But in any event with the failure of Mr Munoz to appear in the hearing, or communicate with FWA to indicate his intentions, leaves it open to me to conclude that Mr Munoz has either abandoned his claim or accepted an offer of settlement of it.

[7] Common justice demands, so far as it can be given effect to without injustice to the other party, that a party who is absent from proceedings should be given every opportunity to present themselves for hearing [Grimshaw v. Dunbar (1953) 1 All ER 350 at p.355]. But equally there is an obligation on all applicants under s.394 to be diligent in pursuing their claim.

[8] In the circumstances, I believe that the proper course is to dismiss the s.394 application lodged by Mr Munoz for want of prosecution on his part and I do so.

COMMISSIONER

Appearances:

Applicant did not appear

Colin Magee for the respondent

2011
Wollongong
October, 5

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