Richard Galea v Toll Transport Pty Ltd T/A Toll Contract Logistics

[2015] FWC 8195

[2015] FWC 8195

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Richard Galea
v
Toll Transport Pty Ltd T/A Toll Contract Logistics
(U2015/10323)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 2 DECEMBER 2015

Application for relief from unfair dismissal.

[1] On 29 August 2015, Mr Richard Galea made an unfair dismissal application. Mr Galea’s employment had been terminated by Toll Transport Pty Ltd T/A Toll Contract Logistics on 9 August 2015.

[2] The matter was listed for conciliation on 1 October 2015 however it did not proceed due to the unavailability of Mr Galea. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Galea was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 9 November 2015.

[4] On 9 November 2015 Toll contacted the Commission to enquire whether any submissions had been filed. After being advised that no submissions had been received, Toll advised that it would lodge an application to have the matter dismissed.

[5] On 9 November 2015, Toll filed an objection to the application and sought the dismissal of Mr Galea’s application. Toll based their objection on grounds which include:

(a) failure to comply with directions; and

(b) failure to attend the initial teleconference.

[6] On 10 November the Commission attempted to contact Mr Galea, on the two numbers provided however both mobile phones were switched off.

[7] On 11 November a voice message was left for Mr Galea reminding him that his submissions were due on 9 November 2015. On the same day an email was sent to Mr Galea asking him to contact the Commission to advise when he intended filing his submissions, failing which the matter would be listed for a non-compliance hearing.

[8] Mr Galea did not reply to any messages or correspondence.

[9] On 12 November 2015 Mr Galea was sent a copy of Toll’s section 399A application. Mr Galea was directed to file submissions and other documentary material in respect of Toll’s application by close of business, on 20 November 2015. Mr Galea was advised that if he failed to comply with this direction, his application would be dismissed.

[10] Mr Galea did not file any material with the Commission.

Consideration

[11] On application by an employer the Commission has the discretion to dismiss an unfair dismissal application because there has been unreasonable non-compliance with directions of the Commission. 1

[12] The Explanatory Memorandum said that the intention of this provision was “to address the small proportion of applicants who may pursue claims in an improper and unreasonable manner. ....In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant.” 2

[13] The role of case management was discussed by the Full Bench in Ghalloub v Anon Riske Services Australia Limited 3.

In summary that decision said:

● the starting point of any consideration an application to dismiss is that an applicant is entitled to have his or her case heard;
● directions play an important role in case management;
● accepting the importance of case management principles, only in extreme circumstances should a party be shut out from litigating an issue which is fairly arguable;
● the circumstances of each case is central;
● a history of non-compliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period of time is relevant
● continuing non-compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.

[14] While not an exhaustive lists of matters that may be considered, I will adopt the approach of the Full Bench in this matter when determining whether to exercise my discretion to dismiss the application.

[15] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[16] As Mr Galea did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[17] Mr Galea has not made contact with the Commission since 1 October 2015. On that date the Conciliator contacted him after he had failed to make himself available for the conciliation. He advised the Conciliator that he was initially represented but his representative ceased acting for him in September 2015. He then advised that he had moved and that he was seeking further advice. He advised that his representative had not provided him with a copy of the employer response form and he asked for a further conciliation. Mr Galea was sent an email on the same day advising him to within 48 hours request a further conciliation by email and further asking him of any unavailability. Mr Galea did not respond to this email.

[18] Since that date Mr Galea has not contacted the Commission and he has not complied with the direction issues to him to respond to Toll’s s.399A application.

[19] The obligation to comply with directions rests with Mr Galea. He has not complied with the direction to file material in support of his unfair dismissal application and has provided no explanation. I can only conclude that his conduct in not complying with the direction to file material in support of his unfair dismissal is unreasonable.

[20] The decision to dismiss is discretionary. Toll is entitled to some finality in this matter. The Act requires the Commission to afford a fair go all round to both parties. In this matter numerous attempts have been made to contact Mr Galea which he has ignored In those circumstances I will exercise my discretion to dismiss Mr Galea’s application and an order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

 1 S.399A of the Fair Work Act 2009

 2   Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161- 163]

 3   PR956665

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