Richard Mervyn Polsen v Labour Logistics Pty Ltd

[2020] FWC 3685

[2020] FWC 3685

FAIR WORK COMMISSION

DECISION

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

Richard Mervyn Polsen
v
Labour Logistics Pty Ltd
(U2020/534)

DEPUTY PRESIDENT SAMS SYDNEY, 16 JULY 2020

Application for an unfair dismissal remedy – summary dismissal of applicant – serious misconduct –applicant failed to comply with numerous Commission directions – applicant provided opportunity to explain non-compliance with Commission directions – no response received as to applicant’s non-compliance – application dismissed.

[1] On 16 January 2020, Mr Richard Polsen (the ‘applicant’) filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), in which he sought an unfair dismissal remedy (referred to as seeking ‘justice’ in his Form F2 – Unfair dismissal application) arising from his dismissal by Labour Logistics Pty Ltd (the ‘respondent’) in January 2020, after approximately three years’ service. I note at this juncture that the applicant listed the date of dismissal as 10 January 2020, and the respondent indicated the dismissal occurred on 8 January 2020. In any event, this difference is irrelevant for the purposes of this decision.

[2] While it is not strictly necessary to set out the reasons for the applicant’s dismissal, shortly stated, he was dismissed for serious misconduct in that it was alleged that a fellow co-worker witnessed the applicant verbally abusing a fellow co-worker. Given the details of these alleged comments, which were said to be extremely racist and offensive, I will not set them out in this decision.

[3] In accordance with my usual practice, I listed the matter for a pre-directions telephone conference on 19 March 2020 and at the same time issued directions for the filing of evidence and submissions in this matter. The conference was unable to resolve the applicant’s claim and the directions were confirmed. The respondent was directed to file and serve its evidence first. This is so because the applicant’s dismissal was for alleged serious misconduct and in those circumstances, the onus falls on the employer to prove the allegations on the civil standard of proof (balance of probabilities); see: Pastry Cooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70. Once that onus is discharged, the onus shifts back to the employee to satisfy the Commission that the dismissal was ‘harsh, unjust or unreasonable’, within the meaning of s 387 of the Act.

[4] On 23 March 2020, the respondent submitted its materials in accordance with the directions. However, no response was received by the applicant by 4pm 13 April 2020 as was required by the directions. During the teleconference of this matter, I reminded the applicant of his obligation to file his submissions and accompanying materials by this time, to which the applicant confirmed he would do so. I have reviewed the audio of the teleconference and confirm this to be the case.

[5] On 29 April 2020, I had cause for my Associate to send the following email to the parties:

‘Dear Parties,

I refer to the above matter and note that no submissions have been received post-23 March 2020. Parties are to urgently advise Chambers as to the status of this matter. Otherwise, the application may be dismissed without further recourse to the parties.

Regards,

Daniel McNamara
Associate to the Hon. Deputy President P Sams AM’

The respondent replied to this email shortly thereafter as follows:

‘Hi

We received no response to our Submission 23/03/2020 no response received from Mr Poulsen for his direction.

From our perspective, we believed the onus is on Mr Poulson to respond.

Kate Bohr’

[6] Over two weeks later, on 18 May 2020, the applicant called my Chambers. My Associate made the following file note from this call as follows:

‘Call from A 10.39-10.55

A wants to know where case is ‘up to’. I explained the recent corro w R (i.e. haven’t heard from applicant, application may be dismissed due to non-compliance). A stated he is not represented and that last time he did an unfair dismissal he could turn up on the day with his documents. I explained purpose of directions (procedural fairness etc.) and confirmed he received R’s subs and that we just haven’t heard anything from him even after the email sent late Apr. Also referred to Preparing for a Hearing doc. A proceeded to say process was a ‘load of crap’ and ‘rigged’, and the teleconference was ‘really strange’. Doesn’t think DP is a judge. I explained he is a statutorily appointed tribunal member with judicial functions. A said he thinks DP was ‘planted’ by the respondent. I clearly explained that if he wishes to proceed with his case, he should email Chambers to that effect and I will pass on to DP for his consideration. I again explained purpose of directions and that future corro should be in writing.’

[7] Despite my Associate advising the applicant that future correspondence should be in writing and copying in the other side, the applicant attempted to call my Chambers 12 times in the week after the phone call of 18 May 2020. My Associate advised me of the particularly heated tone of the applicant during the applicant’s phone call to Chambers. Given the circumstances, and ensuring the best interests of my staff, I instructed my Associate to email the applicant on 25 May 2020 as follows:

‘Dear Mr Polsen,

I refer to our conversation of 19 May 2020, the below email, the attached email from you and the attached directions, and your 12 attempts to call Chambers in the past week. As indicated during our phone call, all future correspondence regarding your matter should be made in writing via this email and copying in the other side; see: para 30 of the Practice note: Fair hearings [hyperlink provided]. This is a procedural fairness requirement to ensure that all parties are aware of all communications with Chambers.

I have discussed your matter with the Deputy President and His Honour advises as follows:

As indicated in our phone call, Chambers has not received any evidence, witness statements or submissions from you, which were required to be filed by 13 April 2020. You were also reminded of this during the teleconference before the Deputy President on 19 March 2020. His Honour’s Chambers has reviewed the audio of this teleconference and confirms same. If either party disputes this or otherwise requires a copy of the audio of this teleconference, information about requesting this audio can be found by following this link.

His Honour notes that your application is at risk of being dismissed pursuant to s 587 of the Fair Work Act 2009, which does not limit when the Commission may dismiss an application, and may include for reasons of failing to properly prosecute an application, or failing to comply with the Commission’s directions for progressing a matter.

His Honour understands that you are a self-represented applicant. However, to proceed with your application, you must provide reasons to Chambers as to why your application should not be dismissed for failure to properly prosecute your application, including failing to comply with Commission directions, as follows:

FURTHER DIRECTIONS

1. The Applicant (Richard Mervyn Polsen) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions and other documentary material the Applicant intends to rely on in providing reasons as to why his application should not be dismissed by no later than 4.00pm on 1 June 2020.

2. The Respondent (Labour Logistics Pty Ltd) is directed to file with the Fair Work Commission, and serve on the Applicant, any witness statements and other documentary material in reply to the Applicant’s materials in (1) above by no later than 4.00pm on 8 June 2020.

If you are unclear of any of the above, His Honour recommends you seek legal or other advice regarding your matter. Parties are advised that all communications with Chambers going forward must be made in writing to this email, copying in the other side. Phone calls to Chambers will henceforth not be an accepted form of communication with Chambers.

Regards,

Daniel McNamara
Associate to the Hon. Deputy President P Sams AM’

On the same day, the applicant then proceeded to email my Chambers and ask ‘What documents do i (sic) have to provide’. The applicant again did not copy the respondent into this correspondence. As a result, my Associate responded:

‘Dear Mr Polsen,

You can find more information about preparing for Commission proceedings on the Commission’s website, including by following this link [hyperlink provided].

You are reminded for the final time that all correspondence with Chambers must copy/CC in the other side. Failure to do so for future emails will result in your email not being considered by Chambers.

Regards,

Daniel McNamara
Associate to the Hon. Deputy President P Sams AM’

[8] On 1 June 2020, the applicant provided a two-page unsigned statement which briefly addressed the merits of his application, to which the respondent replied with brief submissions on 5 June 2020. Despite my Chambers’ best efforts to provide some procedural guidance to the applicant, no submissions were received by the applicant as to why his application should not be dismissed for failure to comply with Commission directions.

[9] In light of the above narrative, I have decided to dismiss this application for want of prosecution and the applicant’s failure to comply with the Commission’s directions. These are my reasons.

[10] The Commission’s power to dismiss an application are set out generally at s 587 of the Act which reads as follows:

SECTION 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.

[11] The power to dismiss a substantive application should only be exercised cautiously; see: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8]. This is so because it results in the extinguishment of a party’s application, which has been made in order to seek some form of relief, from a beneficial statutory provision. In other words, the application is dismissed before an applicant has had his/her ‘day in court’.

[12] That said, s 587 of the Act does not limit the grounds on which the Commission, of its own motion, may dismiss an application. In the present case, the applicant has demonstrated an unwillingness to properly respond to the Commission’s directions and more recently failed to respond at all to my direction of 25 May 2020, despite being warned of the possible consequences. Given this history, I have little confidence that the applicant will, at some future point, seek to desist from this conduct. It is worth noting what Kirby J said in Allesch v Maunz (2000) 203 CLR 172. At [35]-[39], His Honour said:

‘It is a principle of justice that a decision maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made.

… it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.

Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to Act rationally in their own best interests.’ (my emphasis)

[13] In Viavattene v Health Care Australia [2013] FWCFB 2532, a Full Bench of the Commission said at [39]:

‘[39] It is apparent from the decision subject to appeal that the Commissioner had regard to Sayer v Melsteel, and made her decision following an analysis of the respondent’s uncontested evidence, noting that the respondent’s sworn statements and submissions contained “substantial arguments in response to the Applicant’s contentions”. There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended “to ensure that a ‘fair go all round’ is accorded to both the employer and employee concerned” (s.381).’ (endnotes omitted) (my emphasis)

[14] The respondent has filed its evidence and submissions in compliance with the Commission’s directions. In my view, it would be unfair and unreasonable to put the respondent to more time and cost in defending a matter which is not properly being prosecuted by the applicant. This is a telling factor in favour of making an order to dismiss the application, given the overarching object of the Commission’s unfair dismissal jurisdiction as set out at s 381(2) of the Act, which reads 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.’

[15] Without having tested the evidence of either party regarding the allegations against the applicant, it would seem unsurprising that the applicant’s demeanour, both in the teleconference on 19 March 2020 and towards my Associate, was consistent with that of a person who ‘speaks before he thinks’. This was despite the best efforts of the Commission to provide procedural assistance to the applicant to enable him to proceed with his unfair dismissal application.

[16] In the exercise of my discretion, I dismiss application U2020/534, pursuant to s 587 of the Act. I so order.

DEPUTY PRESIDENT

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