Sham Sunder v MSS Security Pty Ltd T/A MSS Security

[2016] FWC 6233

[2016] FWC 6233

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sham Sunder
v
MSS Security Pty Ltd T/A MSS Security
(U2016/5327)

COMMISSIONER BISSETT MELBOURNE, 6 SEPTEMBER 2016

Application for relief from unfair dismissal.

[1] Mr Sham Sunder has made an application for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). Mr Sunder was employed by MSS Security Pty Ltd T/A MSS Security (MSS). His employment was terminated on 4 March 2016.

[2] In 2015 Mr Sunder was dismissed from his employment with MSS Security. He applied for relief from unfair dismissal at that time. In that matter, he was found to have been unfairly dismissed and was reinstated. On his reinstatement he was issued with a first and final warning with respect to his conduct.

[3] Mr Sunder made his application for relief from unfair dismissal on 11 March 2016. Mr Sunder’s application indicated that the Darwin Community Legal Service (DCLS) was acting for him. Following unsuccessful conciliation, directions were issued on 4 May 2016 to the parties for the filing of submissions and evidence. These directions required Mr Sunder to file his materials with the Fair Work Commission (the Commission) on 1 June 2016.

[4] On 24 May 2016 DCLS sought an extension of time of 10 days within which to file Mr Sunder’s material as it was having difficulty getting Statutory Declarations from witnesses. On 25 May 2016 an extension (not as long as sought) was granted. Amended directions were sent to the parties on 25 May 2016.

[5] On the basis of the amended directions, Mr Sunder was required to file his submissions and witness evidence by 4.00pm on 9 June 2016. MSS was required to file and serve its material by 1 July 2016.

[6] On 9 June 2016 at 12.15 pm, DCLS sought a further extension of time until 14 June 2016 for Mr Sunder to file his materials. The request was denied.

[7] At 11.46 pm on 9 June 2016, the Commission received from Mr Sunder two statutory declarations in relation to his case. Neither was a statement by him and no submissions were received.

[8] The application remained listed for hearing on a date to be specified between 26 and 28 July 2016 in Darwin.

[9] On 14 June DCLS, Mr Sunder’s legal representatives, emailed the Commission and inquired if any materials had been filed by Mr Sunder and if they had been filed before or after the time set in the directions.

[10] On 21 June 2016, MSS filed an application pursuant to s.399A of the Act seeking that the application of Mr Sunder be dismissed for failing to comply with the Commission’s orders to file and serve his submissions and witness evidence on which he intended to rely by 9 June 2016.

[11] I indicated that the application pursuant to s.399A of the Act would be dealt with at the scheduled hearing date.

[12] On 27 June 2016, directions were issued requiring Mr Sunder to file and serve submissions and any evidence on which he intended to rely in respect of the s.399A application of MSS by 6 July 2016. MSS was to file any material in reply by 15 July 2016.

[13] On 1 July MSS filed its material in relation to Mr Sunder’s application for unfair dismissal in accordance with the amended directions of 25 May 2016.

[14] On 7 July 2016 an email was sent to DCLS advising that Mr Sunder had failed to comply with directions of 27 June 2016. DCLS advised that it was no longer acting for Mr Sunder but was meeting with him on 13 July 2016. It advised the Commission to communicate directly with Mr Sunder.

[15] MSS filed its submissions in reply with respect to the s.399A application on 15 July 2106 in accordance with the directions.

[16] The s.399A application and application for unfair dismissal were listed for hearing in Darwin on 26 July 2016.

[17] At that hearing Mr Sunder suggested that DCLS had all of his paperwork and the material that should be filed with the Commission. Having heard from both parties, I decided I would write to DCLS and determine if it did, indeed, have submissions that should have been lodged or any material relevant to Mr Sunder’s application.

[18] I wrote to DCLS on 26 July 2016.

[19] On 31 July 2016, I received a response from DCLS advising that:

● DCLS wrote to Mr Sunder on 21 June 2016 advising him that DCLS would no longer represent him;

● DCLS have communicated with Mr Sunder on a number of occasions since then by email, phone and face to face and explained why they are not acting and that Mr Sunder needs to deal directly with Commission,

● DCLS were not provided with the two statutory declarations prior to them being sent to the Commission on 9 June 2016.

● DCLS are not aware that they hold any documents which Mr Sunder requires to prosecute his claim.

● DCLS have offered Mr Sunder to attend their office to inspect his file and obtain copies of any docs he believes would assist him.

[20] The response received from DCLS was conveyed to Mr Sunder and MSS.

[21] On 3 August 2016, Mr Sunder was advised that he should file with the Commission any submissions, evidence or other material on which he wished to rely as to why his application for unfair dismissal should not be dismissed pursuant to s.399A of the Act by 5.00 pm 10 August 2016. MSS was to file any material in reply by 17 August 2016.

[22] On 10 August 2016, the Commission received submissions from Mr Sunder. These submissions did not address the s.399A application of MSS but rather went to matters associated with his dismissal and why it was unfair.

[23] MSS was advised that it should proceed to file whatever it considered appropriate in its reply material. It did file further submissions on 17 August 2016 as directed.

[24] The matter was listed for hearing on 24 August 2016. Because of technical problems the matter was adjourned until 30 August 2016.

[25] This decision deals with the application of MSS pursuant to s.399A only.

Legislation

[26] Section 399A of the Act states:

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.

Submissions

[27] MSS says that Mr Sunder failed to comply with a direction or order of the Commission, namely he failed to file submissions and evidence on which he intended to rely with respect to his application of unfair dismissal by the required time and date of 4.00 pm on 9 June 2016 as contained in the amended directions issued by the Commission on 25 May 2106.

[28] MSS says that, the two documents that Mr Sunder did file with the Commission – statutory declarations of John Houston and Gurpreet Mediratta – were not served on MSS. MSS received the documents from the Commission the following day. In any event, MSS submits that these statutory declarations are unreliable as to matters associated with Mr Sunder’s dismissal because Mr Mediratta does not work in that part of MSS where Mr Sunder works and would not be aware of the work practices in the area and, in any event, has not worked for MSS since 2013 and Mr Houston is not in a position to make any statements with respect to arrangements between MSS and the management of the centre Mr Sunder worked at. Further, he is not an employee of MSS.

[29] MSS submits that Mr Sunder, because of his earlier application for relief from unfair dismissal in 2015, has some familiarity with the procedures of the Commission. It says it is reasonable that he would, on receipt of notices from the Commission, read these with some care. If he was confused, he could have sought additional guidance from the Commission on the obligations imposed on him.

[30] Further, MSS says that having been provided with direction by the Commission in relation to the s.399A application, Mr Sunder has again failed to comply with the directions in that he failed to file any material in relation to the application as required by 6 July 2016.

[31] MSS submits that the obligation is on Mr Sunder to diligently pursue his claims; 1 to correspond with or contact the Commission including the relevant member’s chambers to discuss concerns or seek clarification;2 and that he was well aware of the direction issued and the dates for compliance.3 Mr Sunder has provided no good reason as to why he has failed to comply with the directions. For these reasons, MSS says his application for unfair dismissal should be dismissed.

[32] Of the submissions made by Mr Sunder on 10 August 2016, MSS says that these submissions do not comply with the directions issued by the Commission in that they fail to address the matter the directions were addressed to, namely the application of MSS pursuant to s.399A of the Act.

[33] In the hearing on 26 July 2016, Mr Sunder indicated that DCLS had documentation of his that it had failed to file on his behalf. At the hearing on 30 August 2016, Mr Sunder indicated that he relied on the submissions filed by him on 10 August 2016.

Consideration

[34] Mr Sunder has been shown great leniency by the Commission both in being granted an extension of time on the initial directions to file his submissions and evidence and in the requirements to file material in respect of the s.399A application. On Mr Sunder making submissions to the effect that DCLS had material relevant to his case, the Commission communicated with DCLS. Its response was that it did not hold any material but in any event Mr Sunder was welcome to inspect his file and gather any information relevant to his case. Even on this invitation, Mr Sunder did not provide any further submissions to the Commission until 10 August 2016.

[35] I am sympathetic to the position of unrepresented parties but there are, in this case, two things to say. Firstly, Mr Sunder was represented at the time his unfair dismissal submissions were due on 9 June 2016. Secondly, he has been through this process before and not that long ago.

[36] The power to dismiss an application should not be used lightly. A person who believes they have been unfairly dismissed has a right to pursue a remedy for that action in the Commission. However, with this right comes a responsibility. That responsibility is to honestly and fairly prosecute that application.

[37] Mr Sunder has provided no reason as to why he failed to file any submissions or evidence in respect to his claim for unfair dismissal by 4.00 pm on 9 June 2016 except that he didn’t read the directions properly and thought he had all day. He had earlier claimed to have trouble getting statements he required to enable him to file his submissions. He was granted a generous extension of time of nine days to do so. Even then he filed two statements of dubious value, One claims that he has seen ‘all/most of the security guards…using mobile phones, lap top and computers’. The statement then contains handwriting which appears different to that in the bulk of the statement. The second statement is from a person who does not work at the same location as Mr Sunder so cannot know what is required in Mr Sunder’s workplace from direct knowledge. The forensic value of these statements is dubious but, in any event, they were not filed in accordance with the directions given, no evidence is provided by Mr Sunder and no submissions of any description such that anyone could know what to make of the documents provided.

[38] Whilst it may be argued that Mr Sunder did file material in relation to his application by filing the two statutory declarations, I do not consider that this can be seen to meet the requirements of the directions of the Commission. The directions exist for a reason. In part, by an applicant meeting those directions, the employer knows the case they must respond to. In this respect, Mr Sunder failed.

[39] The unfair dismissal process is not one where an applicant can make an application and then think that no more is required of them. Mr Sunder has been through the process before, he knows what it involves. He chose not to do what was required of him.

[40] Mr Sunder has further failed to comply twice with the directions issued in respect to submissions in relation to the s.399A application. Rather, Mr Sunder filed a submissions on 10 August 2016 in relation to his unfair dismissal, some nine weeks after it was originally due to be filed. That submission is replete with assertions (‘I have evidence that other security guards at MSS watched videos often at work and that this was not objected to by the MSS Manager’ 4, staff at DAATS watch videos with clients or people picked up off the streets, ‘sometimes the nurses are lying on the ground watching videos and they feel shy so they are happy for me to go and watch a video on my own’5, ‘everybody watches videos6‘) with no supporting statements.

[41] At the hearing in Darwin on 26 July 2016 and again on 30 August 2016, Mr Sunder was given substantial opportunities to provide the Commission with submissions as to why his application should not be dismissed. He has consistently failed to do so. It seems that he does not fully understand the implications of the application made by MSS. I am satisfied however that he has been given adequate opportunity to gain information and support so that he may. He has chosen not to.

[42] I am satisfied that Mr Sunder

- failed to comply with the directions of the Commission in relation to the requirement to file his submissions and evidence in relation to his application for unfair dismissal even when he was granted an extension to do so;

- failed to file with the Commission submissions in relation to why his application should not be dismissed pursuant to s.399A; and

- failed to make any submissions in hearings of the s.399A application as to why his application should not be dismissed.

[43] For all of these reasons, I have decided to grant the application of MSS.

[44] If I had not granted this application I would have considered dismissing the application pursuant to s.587(1)(c) of the Act because it had no reasonable prospect of success on my own motion. For the reasons given above with respect to the statutory declarations filed by Mr Sunder and the unsupported assertions in his material filed on 10 August 2016 there is a strong prospect that I would have dismissed the application on these grounds.

[45] Mr Sunder’s application for unfair dismissal is dismissed pursuant to s.399A of the Act. An order 7 to this effect will be issued with this decision.

[46] Mr Sunder should understand that no further action will be taken with respect to his application for unfair dismissal.

COMMISSIONER

Appearances:

S. Sunder on his own behalf.

R. Jansen for MSS Security Pty Ltd T/A MSS Security.

Hearing details:

2016:

Melbourne:

July 27.

August 24 and 30.

 1   Allen v Army and Air Force Canteen Service, [2013] FWC 9209.

 2   Aragon v Aegis Safety Pty Ltd T/A Techinspect,[2013] FWC 5993.

 3   Freirchs v BN & VL Heck T/A Video Ezy Mackay,[2013] FWC 9776.

 4   Mr Sunder’s submission of 10 August 2016 at paragraph 3.

 5   Ibid at paragraph 5.

 6   Ibid at paragraph 6.

 7   PR585023.

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