Samuel Singh v Australian Taxation Office

[2014] FWC 2848

[2014] FWC 2848

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Samuel Singh
v
Australian Taxation Office
(U2011/1489)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 1 MAY 2014

Application for unfair dismissal remedy.

[1] Mr Samuel Singh was dismissed by the Australian Taxation Office (the ATO) on 8 July 2011. He lodged an unfair dismissal application.

[2] Directions were issued requiring the parties to file and serve submissions and witness statements and the application was listed for hearing in November 2011.

[3] On 20 September 2011, Mr Singh requested an extension of time to file his material as his lawyers had ceased acting for him. An extension of time was granted but on 21 September 2011 Mr Singh sought a further extension in line with his original request. He advised that he was unwell. He provided a Centrelink certificate of capacity to support his request. Further, a request for an adjournment of the hearing was made as well. That application was not opposed by the ATO.

[4] On 30 September 2011, the then Panel Head adjourned the matter indefinitely and advised that the matter would not proceed until Mr Singh provided a medical certificate advising that he was able to proceed with his application.

[5] In February 2012, the ATO sought advice about the status of the application and Mr Singh was asked to provide an updated medical report.

[6] On 28 March 2012, the ATO advised that Mr Singh had instituted an appeal against the decision of the AAT in relation to his worker’s compensation claim and submitted that this showed that Mr Singh had the capacity to proceed with this application and sought further advice from Mr Singh’s medical practitioner about his capacity to proceed.

[7] Mr Singh acknowledged the Federal Court proceedings but said he did not take an active role in that proceeding and did not represent himself. A medical certificate dated 29 March 2012 advised that Mr Singh was unfit to work.

[8] At the request of the Fair Work Commission (the Commission), a further certificate was provided in July 2012 and a final certificate was provide in November 2013 advising that Mr Singh was unfit for work until March 2014.

[9] On 10 January 2014, I wrote to Mr Singh and advised if he wished a further adjournment of his application he was required to provide a more detailed medical certificate. On 24 January 2014, a medical certificate was received which advised that Mr Singh’s medical condition was sufficiently severe as to prevent him from adequately addressing his various legal issues. The ATO was invited to respond to Mr Singh’s request for an adjournment and on 3 February 2014 expressed its concern about the lengthy adjournment and asked whether Mr Singh’s medical practitioner could indicate when Mr Singh may be fit to participate in proceedings.

[10] That request was forwarded to Mr Singh and he responded but did not provide advice about his future prognosis but included a medical certificate that advised that he was not fit to work until May 2014.

[11] On 19 March 2014, the ATO sent correspondence to the Commission in which it stated that “it would not be inappropriate for the Commission to set a date, upon the reaching of which, if Mr Singh has not provided written confirmation from his medical practitioner that he is fit to proceed with his Application, the Commission would exercise its discretion to dismiss the Application”.

[12] I am not prepared to further adjourn this matter.

[13] One of the objects of the Fair Work Act 2009 is to provide a remedy if a dismissal is found to be unfair. Such remedies included reinstatement and/or compensation. The Commission, in dealing with unfair dismissal claims, is required to provide a fair go to both employers and employees. Part of that is hearing and determining matters promptly whilst providing procedural fairness to both parties.

[14] Mr Singh last worked for the ATO in 2006 when he ceased work and lodged a worker’s compensation claim. On 8 July 2011, his employment was terminated.

[15] Mr Singh’s medical certificate does not advise that he is legally incompetent. It states that his medical condition prevents him from adequately addressing his various legal issues. I note however that during the time Mr Singh’s medical practitioner had advised the Commission that he was unfit to proceed with this application, he was able to participate in proceedings before the Federal Court. I accept that Mr Singh had representation in that proceeding but Mr Singh has the option of arranging other representation for this proceeding.

[16] The ATO in its correspondence points to prejudice it will suffer if this matter is further adjourned.

[17] The Commission has the power to dismiss an application that has no reasonable prospects of success.

[18] I will issue directions for the ATO to file submissions and witness statements by close of business on 21 May 2014 as to why the Commission should of its own motion dismiss this application.

[19] I will direct Mr Singh to file and serve submissions and witness statements in opposition to the dismissal of his application by 11 June 2014.

[20] If the parties agree, this issue will be determined on the papers. If there is no agreement or there are contested facts, the matter will be set down for hearing on 18 June 2014.

DEPUTY PRESIDENT

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