Shajahan Boitalik v UPS Pty. Ltd
[2023] FWC 2281
•7 SEPTEMBER 2023
| [2023] FWC 2281 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shajahan Boitalik
v
UPS Pty. Ltd
(U2023/3239)
| COMMISSIONER P RYAN | SYDNEY, 7 SEPTEMBER 2023 |
Application for an unfair dismissal remedy – application to dismiss unfair dismissal remedy application pursuant to s.399A – failure to attend proceedings and comply with directions of the Commission – no relevant submissions in response – application dismissed.
Introduction and Background
Mr Shajahan Boitalik (Applicant) filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act) (UFD Application).
Following a case management hearing on 8 June 2023, I listed the UFD Application for hearing on 27 July 2023 and issued directions to the parties for filing of evidence and submissions.
On 26 June 2023, the Applicant filed materials in support of his application, four days beyond the time provided for in the directions.
On 6 July 2023, UPS Pty Ltd (Respondent) filed its materials in response to the application.
Although the directions provided the Applicant with an opportunity to file any materials in reply by 4:00pm on 13 July 2023, the Applicant did not file any materials in reply.
At 7:40pm on 25 July 2023, the Applicant sent correspondence to my Chambers which stated:
I am unable to attend the hearing physically due to my sickness. It will be appreciated if you join me via phone or please arrange alternative date.
At 9:26am on 26 July 2023, my Chambers sent correspondence to the parties which referred to the above correspondence and directed the Applicant to file further evidence (such as a medical certificate) in support of his request to change the mode of hearing or to adjourn the hearing. The Applicant was directed to file such further evidence by no later than 2:00pm on 26 July 2023.
At 9:45am on 26 July 2023, the Respondent sent correspondence to my Chambers opposing any adjournment of the hearing.
After the Applicant failed to provide any further evidence in support of his application to change the mode of hearing or to adjourn the hearing, and did not otherwise provide any response by 2:00pm, my Chambers sent the following correspondence to the parties:
Dear Parties,
U2023/3239- Shajahan Boitalik v UPS Pty. Ltd
I refer to the above matter and the correspondence below.
The Applicant has failed to provide any further evidence in support of his application for an adjournment of the proceedings and/or to change the mode of hearing.
Accordingly, Commissioner Ryan has determined that the matter will proceed as an in person hearing tomorrow commencing at 10:00 AM.
For the reference of the parties the notice of listing and directions is attached.
[Associate Sign-off]
The Applicant did not attend the hearing on the 27 July 2023. Upon being contacted by my Associate by telephone, the Applicant advised he was “too sick to participate.” No further information was provided by the Applicant, nor was any medical evidence or certificate provided.
I proceeded to adjourn the proceedings and informed the Respondent that I would provide the Applicant with an opportunity to provide an explanation and supporting evidence for his non-attendance. In response to the Applicant’s non-attendance and the hearing being adjourned, the Respondent foreshadowed the making of an application pursuant to s.399A of the FW Act. I advised the Respondent that such an application would need to be made in the correct form and served on the Applicant.
Later that day, my Chambers sent the following correspondence to the parties:
Dear Parties,
I refer to the above matter listed for hearing today, Thursday 27 July 2023 before Commissioner Ryan.
It was noted that there was no attendance by the Applicant or any representative on his behalf. When contacted by the Chambers of Commissioner Ryan, the Applicant indicated that he was too sick to participate. It is noted the Applicant foreshadowed sickness yesterday, and in response to that, was directed to file any further evidence in support of his application for an adjournment of the proceedings and/or to change the mode of hearing.
The Applicant failed to file any further supporting evidence or a medical certificate and did not otherwise correspond to the Chambers of Commissioner Ryan that he would not be attending.
At the commencement of the proceedings this morning, the Respondent sought to make an application under s.399A of the Fair Work Act 2009 to dismiss the application. In response to the Respondent foreshadowing making the application, Commissioner Ryan has made the following directions which are attached:
1.To the extent the Respondent (UPS) wishes to file an application pursuant to s.399A of the Fair Work Act 2009, the Respondent is to file in the Commission and serve on the Applicant any application pursuant to s.399A of the Fair Work Act 2009 by 4:00pm on Friday, 28 July 2023.
2.The Applicant (Shajahan Boitalik) is to file in the Commission and serve on the Respondent any submissions and/or evidence in response to Direction [1] by 4:00pm on Friday, 4 August 2023.
3.The Commission will issue further directions to the parties thereafter.
[Associate sign-off]
On 28 July 2023, the Respondent filed an application pursuant to s.399A of the FW Act (Section 399A Application). The Respondent submitted:
· That the Applicant has failed to comply with directions of the Commission on numerous occasions. These included:
· The Applicant failed to file his materials in chief by 4:00pm on 22 June 2023 in accordance with the directions of the Commission;
· The Applicant failed to provide evidence in support of his request for an adjournment;
· Having failed to provide supporting evidence for an adjournment and the request declined, the Applicant failed to attend the hearing on 27 July 2023; and
· The Applicant has failed to provide any response to the Section 399A Application.
· That the merits of the UFD Application are not strong and the Applicant has not challenged its position that the termination of his employment was a case of genuine redundancy by filing materials in reply.
· That it should not be put to further time and cost associated with defending a matter when the Applicant is continually failing to comply with directions and/or attend listings before the Commission; and
· That the UFD Application should be dismissed.
On 2 August 2023, the Applicant filed correspondence in response to my directions issued on 27 July 2023. However, the Applicant did not address with the matters set out in the Section 399 Application. Rather, the Applicant sought to further agitate matters relevant to the merits of the UFD Application.
On the 7 August 2023 my Chambers sent correspondence to the Applicant providing him with a further opportunity to respond to the Section 399A Application. The Applicant was directed to provide a response by no later than 4:00pm on 11 August 2023. Furthermore, the Applicant was advised that if he fails to respond or fails to address the matters set out in the Section 399A Application, then I may proceed to deal with the Section 399A Application based on the materials before me, which may result in the dismissal of the UFD Application.
The Applicant did not respond.
Legislative Provisions
Section 399A of the FW Act provides as follows:
“399A Dismissing applications
(1)The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:
(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(b) failed to comply with a direction or order of the FWC relating to the application; or
(c) failed to discontinue the application after a settlement agreement has been concluded.
Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).
(2)The FWC may exercise its power under subsection (1) on application by the employer.
(3) This section does not limit when the FWC may dismiss an application.”
Consideration
The Applicant failed to attend the hearing of the UFD Application on 27 July 2023. While the Applicant made a request the day before for an adjournment, or for the mode of hearing to be changed to hearing by telephone, the Applicant failed to comply with directions of the Commission to provide evidence in support of those requests.
Furthermore, when contacted at the commencement of the hearing the Applicant simply stated that he was too sick to participate and has failed to provide any supporting evidence or otherwise provide any substantive response to the Section 399A Application.
In Thomas v Highway NN Pty Ltd, Deputy President Sams set out the approach to the exercise of the power to dismiss an application pursuant to s.399A as follows:
[14] Accordingly, s 399A of the Act requires a two-step process; firstly, a finding that one or more of the grounds set out are satisfied and secondly, if so, the consideration as to whether it is appropriate to exercise a discretion to grant the s 399A application and dismiss the unfair dismissal application. It is not in dispute that the applicant failed to attend Commission conferences on two occasions, knowing full well the ramifications of not doing so. Therefore, this decision rests primarily on my discretionary power as to whether I should dismiss this application as a result of the applicant’s non-compliance.[1]
In relation to the Section 399 Application, I am satisfied that it was made by the Respondent in accordance with s.399A(2). I am also satisfied that the Applicant’s failure to attend the hearing was unreasonable. I am further satisfied that the Applicant’s failure to comply with the directions of the Commission to provide evidence in support of his requests and to respond to the Section 399A Application was unreasonable. Accordingly, the grounds set out at s.399A(1)(a) and (b) are satisfied.
As the jurisdictional pre-requisites have been met, it now turns to whether I should exercise my discretion.
In Thomas v Highway NN Pty Ltd, Deputy President Sams stated:
[15] It has been long held by the Courts and this Commission that 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’.
The cautious approach to dismissing a substantive application for relief was reiterated by a Full Bench of the Commission in Lockyear v Graeme Cox.[2]
In Viavattene v Health Care Australia,[3] the Full Bench of the Commission stated:
[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).[4]
Throughout these proceedings the Applicant has failed to comply with directions on at least three occasions and failed to attend the hearing. Although the Applicant indicated he was sick and could not attend the hearing, beyond that bare assertion, the Applicant has failed to provide any evidence in support or explanation despite multiple opportunities to do so. It is unfair and unreasonable for the Respondent to be put to more time and cost in defending a matter which is not being diligently prosecuted by the Applicant.
Having regard to all the circumstances, and the object stated at s.381(2) of the FW Act to ensure that a “fair go all round” is accorded, I am satisfied that I should exercise my discretion to dismiss the UFD Application.
Conclusion
The UFD Application is dismissed pursuant to s.399A(1)(a) and (b) of the FW Act. An order to that effect will be issued with this decision.
COMMISSIONER
[1] Thomas v Highway NN Pty Ltd[2020] FWC 3911 at [14].
[2] [2021] FWCFB 875 at [58].
[3] [2013] FWCFB 2532.
[4] Ibid at [39].
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