Ridwan Ridwan v Coles Supermarkets Australia Pty Ltd

[2018] FWC 452

[2018] FWC 452

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ridwan Ridwan

v

Coles Supermarkets Australia Pty Ltd

(U2017/10105)

Deputy President Masson MELBOURNE, 23 JANUARY 2018

Application for an unfair dismissal remedy - whether no reasonable prospects of success

1. On 17 September 2017, Mr Ridwan Ridwan (the Applicant) made an application pursuant to s 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his dismissal by Coles Supermarket Australia Pty Ltd (the Respondent).

1. The application indicated that the date that the Applicant’s dismissal took effect was 29 August 2017.

1. On 6 November 2017, the Respondent filed a response to the unfair dismissal application.

1. On 20 November 2017, the unfair dismissal application was listed for conciliation before a Fair Work Commission Conciliator, but remained unresolved at the end of the conciliation.

1. Consequently the matter was listed for hearing on 31 January 2018 and Directions were issued to the parties in relation to the requirement for submissions and witness statements to be filed.

1. The Applicant filed materials with the Fair Work Commission (the Commission) on 19 December 2017. The Respondent filed written submission and witness statements with the Commission on 16 January 2018.

1. A Directions/Mention Hearing was scheduled to be conducted on 18 January 2018 by telephone, however it did not proceed due to the Applicant failing to attend. Telephone attempts to contact the Applicant in relation to the scheduled hearing were unsuccessful.

1. On 18 January 2017, the Respondent filed an application for the Commission to dismiss the Applicant’s unfair dismissal application under s 587 of the Act on the grounds that the application had no reasonable prospects of success.

1. The Applicant was directed by the Commission in correspondence dated 18 January 2018 to file a response to the Respondent’s application by 4.00pm Monday, 22 January 2018. The Applicant subsequently corresponded with the Commission on 18 January 2018 opposing the Respondent’s application for his application to be dismissed.

The legislation

Section 587 of the Act is in the following terms:

“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.”

1. The approach to deciding whether an application should be dismissed on the grounds in s 587 was considered by Deputy President McCarthy in Applicant v Respondent.[1]

1. Deputy President McCarthy endorsed the approach taken by the Federal Court in applying s 31A of the Federal Court Act 1976 which provides that an application may be summarily dismissed if a party has no reasonable prospect of prosecuting or defending a proceeding or part of a proceeding. The relevant principles are:

·  The moving party does not have to demonstrate that the defence is hopeless or unarguable;

·  The pleadings and the evidence must be considered with a critical eye to see whether the respondent to the application to dismiss a case has evidence of sufficient quality and weight to be able to succeed at trial;

·  The respondent party is not required to present its full case in order to defeat the summary judgement but must at least present a sufficient outline of the evidence in order to allow the Court to come to a preliminary view about the merits for the purpose of considering the statutory test for summary judgement to be issued;

·  The test may require greater scrutiny of the evidence and pleadings in some cases than it does in others. The words in the provision compel a flexible approach. The real question in every case is not so much whether there is any issue that could arguably go to trial but rather whether there is an issue that should be permitted to go to trial.

1. I agree with Deputy President McCarthy that the approach for applying s 587(1)(c) of the Act should be similar to that followed by the Federal Court in considering whether a matter should be summarily dismissed under relevant provisions of the Federal Court Act 1976. Importantly however, a decision by the Commission to dismiss a matter is a discretionary one and in doing so regard should be given to the particular circumstances of the matter and the parties respective capacity to advance their cases.

Respondent submission

1. The Respondent contended in its application for the dismissal of the Applicant’s unfair dismissal application pursuant to s 587(1)(c) of the Act that:

·  The Applicant does not dispute the conduct that formed the basis of his dismissal;

·  The weight of the objective evidence contained in the text messages attached to the statements filed by the Respondent;

·  Evidence filed by the Respondent demonstrates its compliance with s 387 (b), (c) and (d) of the Act; and

·  The Respondent considered all other relevant factors in relation to the Applicant, including his medical condition, prior to reaching a decision to terminate his employment.

1. The respondent also submitted that the effect on employees required to give evidence in the matter ought to be considered by the Commission as it was submitted that those employees held a fear for their safety.

Applicant submission

1. The Applicant in response referred to his long service with the Respondent, the medical treatment he is currently receiving, his belief that he had been treated unfairly and that he had been bullied by his former store manager and service manager. Other issues were raised in the Applicant’s response but did not bear upon the Commission’s consideration of the application of the Respondent to dismiss the unfair dismissal application.

Consideration

1. The Applicant has filed limited material to support his application for unfair dismissal. The material filed is essentially confined to his claims of unfair treatment by the Respondent, documents going to his medical condition and correspondence related to the termination of his employment.

1. By contrast, the Respondent has filed extensive material by way of submissions and several witness statements which it contends supports its decision to terminate the Applicant’s employment.

1. The paucity of material filed by the Applicant in these proceedings combined with the weight of the material filed by the Respondent weighs in favour of dismissing the Applicant’s unfair dismissal under s 587(1)(c) of the Act were a rigid application of the principles summarised by Deputy President McCarthy in Applicant v Respondent adopted.[2]

1. I am however cognisant of the fact that the Applicant is self-represented in these proceedings and is likely to have a limited understanding of the processes required to properly advance his case. This is notwithstanding the assistance afforded to the parties by Commission staff and the availability of relevant on-line material. I also note that while the Applicant has not yet answered the material filed by the Respondent he would ordinarily have an opportunity to do so at the hearing. These factors weigh against the application by the Respondent to dismiss the matter.

1. While the Applicant has clearly failed to advance a reasonable case in his filed materials, I am loathe to pre-emptively deny him a right to be heard and answer the material advanced by the Respondent. This is particularly the case in circumstances where, as a self-represented litigant, his knowledge and familiarity with the process are clearly limited.

1. As regards the stated fear that some witnesses hold for their safety, I accept that some of the material filed by the Respondent indicates on its face some highly offensive language on the part of the Applicant and that his visits to the store from which he was dismissed have caused concern to some of the employees. If legitimate, the safety concerns of witnesses may be relevant to the manner in which the proceedings are conducted. However, at this stage I am not persuaded that it is a factor that supports dismissal of the Applicant’s unfair dismissal application.

1. I have carefully weighed the materials filed and submissions made by the parties on the Respondent’s application to dismiss the matter. In the circumstances of this matter I am not persuaded to exercise my discretion to dismiss the matter before me under s 587(1)(c) of the Act as sought by the Respondent.

Conclusion

1. For the reasons outlined above, the application by the Respondent under s 587(1)(c) of the Act is dismissed. The substantive matter of the Applicant’s unfair dismissal application will proceed to be determined in accordance with previous directions issued.

DEPUTY PRESIDENT

[1] [2010] FWA 1765

[2] See paragraph [12] above.

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