Rizalio Taladua Jr v Monash Health
[2024] FWC 952
•15 APRIL 2024
| [2024] FWC 952 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rizalio Taladua Jr
v
Monash Health
(U2024/2574)
| DEPUTY PRESIDENT BELL | MELBOURNE, 15 APRIL 2024 |
Application for an unfair dismissal remedy - s.587 – failure to prosecute case – unexplained failure to attend mention hearing or file material by due dates – no reasonable prospects of success - application dismissed.
On 5 March 2024, Mr Rizalio Taladua Jr (Applicant) made an application to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleges he was unfairly dismissed by Monash Health.
Mr Taladua lodged his application by post, which was received by the Fair Work Commission registry office in Melbourne on 5 March 2024. His application form listed contact details for him at a physical address (which appears to be his home address and will not be stated in these reasons) and a mobile telephone number. The date Mr Taladua signed the form was 27 February 2024.
At the same time, Mr Taladua lodged a Form F8 application alleging dismissal in contravention of the ‘general protection’ provisions of the Act, which was given a case number C2024/1458.
On 11 March 2024, the Commission registry called and then wrote to Mr Taladua about the fact that he had made two dismissal applications. Relevantly, the letter stated “You made two dismissal applications. You can only continue with one. Which application do you want to continue with?” The letter told Mr Taladua to make a decision by 25 March 2024 and said he could contact the registry by phone, email, fax or mail.
On 14 March 2024, Mr Taladua attended the Melbourne registry office in person. He wrote a short note indicating his election to proceed with his unfair dismissal application. On the same date, the registry provided Mr Taladua with a letter confirming the discontinuance of his general protections claim C2024/1458.
Section 394(2) requires unfair dismissal applications to be made within 21 days after the dismissal took effect. Mr Taladua did not specify any date for dismissal in his Form F2 application but simply stated “No letter of termination”. In response to the question “What date did your dismissal take effect”, he wrote:
“1. No letter of termination
2. On January 10 2024 10:15am [staff member name], Manager, Head Officer, Human Resources, People and Culture, Kingston, Vic. She told me and open (sic) the computer employee persona (sic) file, I saw personally that I was not terminated, no complaint, no disciplinary action.”
Despite Mr Taladua asserting in his form that he was making his application within 21 days of being dismissed, the only date specified in his application was 10 January 2024, which would have made his application 34 days out of time.
Upon the matter being allocated to me, I issued directions on 26 March 2024 to the parties to ascertain if the application was filed within time and whether any extension of time should be given if out of time. The directions indicated that, on the material before me, Mr Taladua’s application appeared to be 34 days out of time based on a dismissal dated of 10 January 2024.
The directions were posted by Express Post to Mr Taladua’s nominated postal address. The respondent was also directed to serve its Form F3 response by post to Mr Taladua, which it subsequently confirmed it did. The directions also:
· Listed the matter for a mention hearing by telephone for Friday, 5 April 2024 at 9:00am. A hardcopy of the Notice of Listing was included in the material posted to Mr Taladua;
· Required Mr Taladua to file and serve any statements or other material he relied upon in relation to the extension of time question (including the date of dismissal) by 4:00pm, 10 April 2024.
Also on 26 March 2024, my chambers called Mr Taladua on his specified telephone number and spoke to him. Among other matters, he was advised about the material being posted to him and the telephone mention hearing for the following Friday, 5 April 2024.
On 27 March 2024, Mr Taladua filed an amended Form F2. He did so by delivering it personally to the Fair Work Commission registry in Melbourne. The Amended Form F2 did not provide a dismissal date but it now additionally stated “My last salary [was] on March 08 2023”, being nearly 1 year prior to his unfair dismissal application.
On 2 April 2024, the respondent’s Form F3 response was received. The respondent specified that the date the dismissal took effect was 7 March 2023. It attached a copy of a letter of dismissal to that effect, dated 7 March 2023 and addressed to the same address provided by Mr Taladua in his Form F2 and Form F8.
The Form F3 also stated that Monash Health received a letter from Mr Taladua on 27 June 2023, enquiring into the status of his employment – that letter was attached. The Form F3 further stated that on 29 August 2023, the respondent sent a further copy of the letter of termination to Mr Taladua. It also stated that, on 10 November 2023, the respondent was contacted by Mr Taladua’s union representative, who requested (and was subsequently given) a certificate of service. While the further correspondence of 29 August 2023 and documents concerning the certificate of service were not attached to the Form F3, the applicant did not provide any material indicating a contrary position.
Twice on the afternoon of Thursday, 4 April 2024, my chambers attempted to call Mr Taladua by telephone to remind him of the telephone mention hearing the following morning. The calls were not answered and there was no provision for leaving a voice mail message.
At about 20 minutes prior to the mention hearing on Friday, 5 April 2024, my chambers caused a text message to be sent to Mr Taladua’s telephone. It reminded Mr Taladua of the telephone mention hearing starting at 9.00am that morning.
When the mention hearing was due to start, my chambers attempted to call Mr Taladua to dial him into the hearing a further 7 times on his mobile (from 8:57am – 9:05am), but was unable to get through to him.
Mr Taladua did not attend the Mention/Conference.
Given Mr Taladua’s non-attendance, my chambers wrote to him by post (sent to his usual postal address) that day. It is not necessary to set that correspondence in full but it suffices to note that it:
· Referred to Mr Taladua’s failure to attend the mention hearing and the numerous attempts to contact him about it;
· Asked him if he was intending to continue with his application; and
· Told him that if he did want to continue with his application, he must still file his material on Wednesday, 10 April 2024 in accordance with the directions.
In relation to the final point regarding the deadline of 10 April 2024, the letter stated:
“Out of fairness to you as an unrepresented party, the Deputy President draws to your attention the possible consequences for non compliance with the Directions of the Deputy President and failure to attend the Mention/Conference. This includes that your matter may be dismissed for failure to attend or failure to comply with a direction, pursuant to section 587 of the Fair Work Act 2009, or upon application by the Respondent (see s.399A of the Act).
Your matter might be dismissed without further notice to you if you do not give your material to the Commission by 4pm, Wednesday 10 April, without any justifiable excuse.”
Also on 5 April 2024, Mr Taladua was sent a text message alerting him to the letter being sent. The text message stated:
“You have been sent an important letter to [Mr Taladua’s address] saying your unfair dismissal application might be dismissed if you do not do what the Directions sent on 26 March require. Check your mail Monday and read it. DO NOT REPLY BY SMS”
Mr Taladua did not file any material by 10 April 2024 or at all, nor did he otherwise contact chambers about his application, whether to provide an explanation, seek an extension of time or otherwise. The Commission’s last contact with Mr Taladua was 27 March 2024, as set out above.
Other than initially filing his applications, the Applicant has failed to prosecute his case at all once the issue of his unfair dismissal application being out of time was raised, and he has provided no explanation to the Commission for failure to attend the mention/conference on 5 April 2024, nor even indicated whether he wishes to continue with his unfair dismissal application. This is despite numerous attempts to contact Mr Taladua on his nominated contact details, which (until that point in time) Mr Taladua had responded to.
I also note the Applicant has not filed any material in support of his extension of time application, which were due by 4pm on 10 April 2024 pursuant to the directions issued on 26 March 2024.
Putting aside the Applicant’s unexplained failure to attend the mention on 5 April 2024, it is now very clear that he is not taking steps to prosecute his claim and I will dismiss the application for that reason under s.587 of the Act. The possibility of dismissal under s.587 was expressly communicated to the Applicant in the letter from chambers on 5 April 2024.
Section 577 of the Act requires the Commission to perform its functions and exercise its powers in a manner that is fair and just, is quick, informal and avoids unnecessary technicalities, is open and transparent, and promotes harmonious and cooperative workplace relations. Section 578 of the Act requires me when exercising powers under the Act to take various matters into account, which I have done so.
Section 587(1) of the Act provides the Commission with power to dismiss an application in accordance with its terms. Section 587(3) empowers the Commission to dismiss an application on its own initiative. Section 587(1) is as follows:
“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.”
On the documentary material before me so far, there is no material at all supportive of a conclusion that Mr Taladua was dismissed within a 21 day period prior to filing his unfair dismissal application on 5 March 2024. All the material before me points in the opposite direction and the only proper inference to be drawn from that material is that he was dismissed nearly a year previously and notified of that fact. Regardless of the exact date, I am satisfied on the material before me that his application was out of time. In the absence of Mr Taladua having filed any material in accordance with the directions, I do not consider that his application to establish “exceptional circumstances” to warrant an extension of time has reasonable prospects of success.
Independently, I consider that the clause “Without limiting when the FWC may dismiss an application” at the commencement of s.587(1) indicates that the power to dismiss an application is not limited to the specific matters enumerated in subsections (a) – (c). I am satisfied the power to dismiss can extend to circumstances where an applicant has failed to prosecute his or her case, including by non-compliance with directions or orders and a repeated failure to provide a proper explanation for that non-compliance.
When the power to dismiss an application for failure to prosecute or in the circumstances of s 587(1)(a) – (c) is enlivened, it remains a matter of discretion as to whether the power ought be exercised. I am satisfied that Mr Taladua has not shown a willingness to prosecute his case. He failed to attend a hearing of the Commission despite being advised that he was required to attend, failed to comply with directions of the Commission and has not provided an explanation for his failure to comply with directions.
Having regard to the above matters, I am satisfied that I should exercise my discretion to dismiss the matter under s.587 of the Act, either on the basis of a want of prosecution or no reasonable prospects of success. In doing so, I have had regard to the requirements of sections 577 and 578 of the Act.
An Order[1] to this effect will be issued with this Decision.
DEPUTY PRESIDENT
[1] PR773439
Printed by authority of the Commonwealth Government Printer
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