Sheriff v JBS Australia
[2019] FCCA 2022
•24 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHERIFF v JBS AUSTRALIA | [2019] FCCA 2022 |
| Catchwords: PRACTICE AND PROCEDURE – Application in a Case for transfer of proceedings to Brisbane registry – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 351, 382, 383 Federal Circuit Court Rules 2001 (Cth), rr.8.01, 13.03C |
| Cases cited: MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 |
| Applicant: | ALANZO SHERIFF |
| Respondent: | JBS AUSTRALIA |
| File Number: | SYG 799 of 2019 |
| Judgment of: | Judge Emmett |
| Hearing date: | 24 July 2019 |
| Date of Last Submission: | 24 July 2019 |
| Delivered at: | Sydney |
| Delivered on: | 24 July 2019 |
REPRESENTATION
| Applicant: | Appeared in person |
| Respondent: | No appearance |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 799 of 2019
| ALANZO SHERIFF |
Applicant
And
| JBS AUSTRALIA |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 5 June 2019, the applicant failed to attend a directions hearing before this Court. Orders were made by me on that occasion dismissing the proceedings for non-appearance pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).
By Application in a Case filed 5 June 2019, the applicant seeks an order to reinstate a proceeding commenced by him on 2 April 2019 seeking compensation and pecuniary penalty arising out of employment with the respondent between 20 December 2018 and 25 January 2019.
The applicant was unrepresented before the Court this morning.
The respondent sent a manager to represent the company who informed the Court that he is not a director of the respondent. The Court informed the manager that without leave of the Court, the respondent must be legally represented before the Court. I did not grant such leave to the manager.
I explained to the applicant that the two most critical issues in relation to the application for reinstatement was the explanation for his failure to appear on 5 June 2019 and the prospects of success of his substantive application (see MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 per Ryan J at [7] and [8]).
The applicant filed an affidavit on 5 June 2019 in support of his application for reinstatement in the following terms:
“I was sick this morning couldn’t get up from bed and could not walk. I was in Court this afternoon at 2:50pm on 5 June 2009 at 80 William St Sydney. I do have a cardio problem, my blood pressure was very high. When I look at the notice of filing and hearing, I though my Court time was at 1:09 pm. It was only when I get at the Registry that I realised it was the wrong notice of filing. ”
(Errors in original)
The affidavit was not accompanied by any medical evidence or other corroborative evidence. The applicant had no medical evidence to provide to the Court this morning in support of his application.
There was no communication received from the applicant prior to an application on 5 June 2019 for reinstatement.
In the circumstances, the applicant’s explanation for his non-appearance is wholly unsatisfactory.
I invited the applicant to say whatever he wished in support of his substantive application.
The applicant asserts that he was employed as a delivery driver for the respondent between 20 December 2018 and 25 January 2019 and was on a probation period of 6 months. The applicant responded that he was unfairly dismissed on 25 January 2019 and he has workplace rights. The applicant provided no other details or allegations.
Insofar as the applicant asserts that he was unfairly dismissed during a probation period of 6 months, ss.382 and 383 of the Fair Work Act 2009 (Cth) (“the FWA”) would prevent the applicant from bringing a claim for unfair dismissal where he was dismissed within the minimum employment period (see Forbes v Petbarn Pty Ltd [2018] FCA 256 at [24] per Charlesworth J), being 6 months where the employer is not a small business and 12 months where the employer is a small business. In this case the applicant was dismissed some 5 weeks after the commencement of his employment.
The applicant’s application and accompanying Form 2, Claim under the Fair Work Act 2009, alleged dismissal in contravention of s.340 and s.351 of the FWA on the basis of unparticularised discrimination.
I accept that if the proceeding was not reinstated the applicant would suffer prejudice. In considering the effect of that prejudice I have regard to the overall interests of justice, including the utility of any reinstatement order.
The applicant’s claims are wholly unparticularised and do not identify the basis on which he was discriminated against nor do they identify the workplace right he claims he had, which he did or did not exercise.
In light of the applicant’s unsatisfactory explanation for his failure to appear on the last occasion, I am not satisfied that the prospects of success of the applicant’s substantive application for relief are sufficient such that the interests of justice require reinstatement of the applicant’s proceeding.
In the circumstances, the applicant’s application for reinstatement, filed on 5 June 2019, should be dismissed.
On 12 July 2019, the applicant filed an Application in a Case to transfer the matter to the Brisbane registry of the Federal Circuit Court of Australia pursuant to r.8.01 of the Rules. The applicant lives in his truck which he informed the Court is presently parked on a street in Queensland.
In light of the dismissal of the applicant’s application for reinstatement, the application for transfer should also be dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Deputy Associate:
Date: 21 August 2019
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