Shane Denny v Fulton Hogan

[2015] FWC 672

[2015] FWC 672

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shane Denny
v
Fulton Hogan
(U2014/13141)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 28 JANUARY 2015

Application for relief from unfair dismissal.

[1] Mr Shane Denny alleged that his dismissal by Fulton Hogan Industries Pty Ltd was unfair.

[2] On 19 November 2014, directions were issued to Mr Denny to file material in support of his application by close of business on 8 December 2014. Mr Denny did not comply with these directions and no application for an extension of time was made before the compliance date.

[3] On 22 December 2014, a member of the Commission’s staff spoke to Mr Denny’s solicitor, Mr Gleeson, who advised that Mr Denny was unwell and would require more time to file his material. The solicitor was advised that the matter would go to a non compliance hearing on 24 December 2014.

[4] Mr Gleeson, said that he advised a Commission staff member on 22 December 2014 of the phone number to be used to contact him for the non compliance hearing, as his office phones would divert to message bank.

[5] Mr Gleeson stated that he attended his office on 24 December 2014 from 9am but did not receive a phone call from the Commission. He telephoned the Commission at 11am and was advised that the non compliance hearing had concluded. He sent an email on that date at 11.27am confirming the details of this conversation with the Commission. He advised that had he been called he would have sought an extension of time to file the material until 16 January 2015. He would have relied on Mr Denny’s health issues to support this application.

[6] At the non compliance hearing, Fulton made an application to dismiss Mr Denny’s application because Mr Denny had not complied with the Commission’s directions. Commissioner Bissett waived compliance with the rules and accepted the application. A letter was sent to Mr Denny advising him of the application and he was directed to file material in opposition to the application by close of business on 14 January 2015.

[7] On 13 January 2015 Mr Denny filed submissions in opposition to the application to dismiss along with supporting documents.

[8] Mr Denny submitted that his claim had merit and he should be given an opportunity to have his claim determined. It was submitted that Mr Denny’s health issues prevented him from complying with the directions. He was admitted to hospital on 9 November 2014 and was discharged the following day, after being referred to a community health service. He was readmitted to hospital on 22 December 2014 for the same condition. The certificate provide on that occasion did not have a discharge date as it was issued on 22 December 2014 and Mr Denny was still an inpatient at the time the certificate was issued. The certificate stated that Mr Denny was unfit for work/school or usual activities until 29 December 2014. A further certificate dated 12 January 2015 advised that Mr Denny had been an inpatient from 29 December 2014 to 8 January 2015.

[9] Mr Gleeson later advised that Mr Denny was in fact an inpatient from 22 December 2014 to 8 January 2015.

[10] On 19 January 2015 Mr Denny filed submissions and witness statements in support of his substantive application.

[11] Fulton filed submissions and documents in support of its application to dismiss 1.

Fulton submitted that there was no evidence on which I could conclude that Mr Denny was not able to participate in the non-compliance hearing. Fulton submitted that the documents relied on by Mr Denny do not support a finding that he was not capable of participating in the non compliance hearing. It submitted that the documents do not support a finding that Mr Denny was an inpatient on 24 December 2014.

[12] I do not need to resolve this factual dispute. I accept that Mr Denny’s representative had made arrangements to represent his client at the non compliance hearing. Mr Gleeson’s new contact number had not been recorded in the Fair Work Commission’s system. As a consequence the Commission was unable to contact Mr Gleeson to enable him to participate in the non compliance hearing.

[13] Fulton submitted that, in any event, Mr Denny was required to comply with directions by 8 December and the later hospital admissions do not explain his failure to comply with that direction. I accept this submission. I note however that when Mr Denny was discharged from hospital in November it was not suggested that his health issues had been resolved. His subsequent hospitalisation for the same reasons is evidence of ongoing health issues.

[14] It was submitted that there were other witnesses that Mr Denny intended calling to support his claim and there was no explanation of why their witness statements could not have been prepared. I accept that submission.

[15] It was submitted that if Mr Denny’s health prevented him from complying with the directions it was his responsibility or his solicitor’s responsibility to advise the Commission prior to the compliance date and seek an extension of time to file the material. I accept that submission.

[16] Fulton submitted that, as Mr Denny was able to instruct his solicitor to engage in settlement discussions and instructed his solicitor on 28 November 2014 to make an offer to settle the matter, I could not find that Mr Denny was not capable of giving instructions to Mr Gleeson in relation to his witness statement and submissions. I do not accept that submission. There is a significant difference in providing instructions to settle and providing instructions to prepare a witness statement. The report of 10 November 2014 describes Mr Denny’s condition at the time and the impact, in part, of his loss of employment. I accept that his health issues may have contributed to his inability to provide instructions to his solicitors to enable them to complete his witness statement and submissions in a timely matter.

[17] Mr Denny submitted that his claim had merit. I am not able to make any findings about the strength of Mr Denny’s claim, as there are significant factual disputes between the parties.

Consideration

[18] On application by an employer, the Commission has the discretion to dismiss an unfair dismissal application because there has been non compliance with directions of the Commission. 2

[19] The Explanatory Memorandum said that the intention of this provision was “to address the small proportion of applicants who may pursue claims in an improper and unreasonable manner. ....In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant.” 3

[20] The role of case management was discussed by the Full Bench in Ghalloub v Anon Riske Services Australia Limited 4.

In summary that decision said:

• the starting point of any consideration an application to dismiss is that an applicant is entitled to have his or her case heard;



• directions play an important role in case management;



• accepting the importance of case management principles, only in extreme circumstances should a party be shut out from litigating an issue which is fairly arguable;



• the circumstances of each case is central;



• a history of non compliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period of time is relevant



• continuing non compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.

While not an exhaustive lists of matters that may be considered, I will adopt the approach of the Full Bench in this matter.

Conclusion

[21] Mr Denny failed to comply with a direction of the Commission to file material in support of his unfair dismissal claim and failed to notify the Commission of his inability to comply prior to the compliance date. Mr Denny’s solicitor failed in his obligation to advise the Commission of any difficulties faced by Mr Denny. Prompt advice of his health issues would have averted the complaints legitimately raised by Fulton.

[22] However I am not prepared to exercise my discretion to dismiss the application. I accept that Mr Denny’s ongoing health issues have played a role in his non compliance. Mr Denny does not have a history of non-compliance, and Mr Denny has now filed his material. While the current hearing dates will need to be vacated, the short delay in hearing and determining this matter will not prejudice Fulton. The application to dismiss Mr Denny’s unfair dismissal application is therefore dismissed and new directions will be issued to enable this matter to be heard and determined.

DEPUTY PRESIDENT

 1   Submissions of Fulton dated 19 January 2015 and supplementary submissions dated 27 January 2014

 2 S.399A of the Fair Work Act 2009

 3   Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161- 163]

 4   PR 95665

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