Tobias Tait v Serco Citizen Services Pty Ltd

[2018] FWC 6839

[2018] FWC 6839

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tobias Tait
v
Serco Citizen Services Pty Ltd
(U2018/7227)

COMMISSIONER LEE MELBOURNE, 7 NOVEMBER 2018

Application for an unfair dismissal remedy.

[1] This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Mr Tobias Tait (the Applicant) claims that he was unfairly dismissed from his employment with Serco Citizen Services Pty Ltd (the Respondent). The application was made on 13 July 2018. In the application, Ms Margaret Boyd was named as the Applicant’s representative and material filed by Ms Boyd refers to her representing and/or assisting the Applicant. Ms Boyd is hereafter referred to as the Applicant’s representative.

[2] The matter was listed for telephone conciliation before a Fair Work Commission conciliator on 13 August 2018. The matter was not settled at conciliation.

[3] On 27 September 2018 a notice of listing was sent to parties for an Arbitration Conference/Hearing in Launceston on 12 and 13 November 2018. The notice of listing required the Applicant to file with the Fair Work Commission (the Commission) and serve on the Respondent the Applicant’s Outline of Argument, Applicant’s Statement(s) of Evidence and the Applicant’s Document List by no later than noon on Thursday, 11 October 2018.

[4] On 15 October 2018 the Commission attempted to contact the Applicant and the Applicant’s representative by telephone regarding submissions that were due to be filed by 11 October 2018. On 16 October 2018 a staff member of the Commission spoke to the Applicant’s representative by telephone. The Applicant’s representative advised that she was not aware and that she required documents from the Respondent to complete submissions. The Applicant’s representative was advised, among other things, that submissions were required to be filed as soon as possible otherwise the matter would proceed to Non Compliance Hearing. The Applicant’s representative advised that she was away and did not have access to a computer but confirmed she would contact the Applicant and pass on the message. The staff member of the Commission also attempted to contact the Applicant again directly after this call and left a voicemail message with the Applicant. Based on the Commission’s file record it does not appear that the Applicant returned the call.

[5] The Commission also sent correspondence to the Applicant on 16 October 2018. The correspondence stated, among other things, that to date nothing had been received from the Applicant by the Commission and that if the Applicant wished to request an extension, he needed to note the date he was seeking an extension until and the reasons for requesting the extension. The correspondence also noted that if no extension request or submissions were received, the matter will be listed for a Non Compliance Hearing. A text message was also sent to the Applicant to remind him that written submissions were due to be filed and served by Thursday, 11 October 2018. In the evening that day, the Applicant sent correspondence requesting an extension of time as he had been unable to submit the submissions as his representative who was completing the submissions was away until 22 October 2018 and would not be able to attend to the matter until then. A request for an extension until close of business Thursday, 25 October 2018 was sought.

[6] On 18 October 2018 the Applicant was granted an extension to file materials and the amended directions issued that day required the Applicant to file materials by no later than 2:00pm on Tuesday, 23 October 2018 with the Respondent to file materials by no later than 2:00pm on Monday, 5 November 2018. On 18 October 2018 a staff member of the Commission also contacted the Applicant’s representative by telephone to advise that an extension had been granted until this date and explained that the Applicant was required to file materials by this time otherwise the matter would be listed for a Non Compliance Hearing.

[7] On 23 October 2018 the Applicant’s representative contacted the Commission by telephone and advised that she would be filing submissions that day but was waiting on the witness statements to come through. The Applicant’s representative was advised that any submissions filed after 23 October 2018 would be marked as late unless the Applicant sought an extension. The process for seeking an extension was explained to the Applicant’s representative.

[8] On 23 October 2018 the Applicant’s representative filed materials with the Commission which were incomplete. The materials included an Applicant’s Outline of arguments: merits and document list. The Applicant did not file a witness statement and the Applicant’s Statement of Evidence document included the names of three witnesses, which were the Applicant’s former colleagues. The document stated that two of the statements were to be collected and sent and the other stated “hostile witness – to be served subpoena and questioned”. The attached cover letter read as follows, omitting formal parts:

“Please find attached the submission for the above. Due to personal reasons, we are still awaiting further information from witnesses, including some subpoena’s.

I anticipate having this information before the close of business 26^th October 2018 for service and submission to Fair Work commission [sic] and Serco Citizen Services Pty Ltd.

Subpoena’s are currently in the process of being served upon Serco for further information.

We would appreciate your approval of this extention [sic] of time to obtain these documents.”

[9] On 29 October 2018 the Commission contacted the Applicant’s representative and advised that the matter was due for allocation to the presiding member that day and advised that whether the Applicant would be granted an extension to file further materials would be dealt with by the presiding member. The Applicant’s representative advised the Commission that she had been unwell and was hoping to have the materials submitted that day.

[10] On 30 October 2018 the matter was listed for Non Compliance Conference/Hearing by telephone before me on Thursday, 1 November 2018 at 12:00pm as the directions set for 23 October 2018 had not been complied with by the Applicant. My chambers attempted to contact the Applicant and the Applicant’s representative numerous times by telephone on the two telephone numbers listed on the notice of listing for the Non Compliance Conference/Hearing and a third telephone number for the Applicant on the Commission’s file, without success.

[11] The Respondent was contactable by telephone and was available to participate in the hearing. The hearing was convened by telephone at 12:20pm in order for the Commission to determine what further action should be taken in the matter.  The Respondent made an application under s.399A of the Act, that the matter be dismissed as the Applicant had failed to comply with directions of the Commission and failed to attend a hearing held by the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s oral application. Further, I advised the Respondent at the hearing that in the circumstances it was not required to file materials by 5 November 2018 as per the amended directions issued 18 October 2018.

[12] On 1 November 2018 the Applicant was sent correspondence in relation to the Respondent’s section 399A application. The Applicant was directed to file submissions and other documentary material in respect of the Respondent’s application by close of business, Monday, 5 November 2018. The Applicant was advised that if material was not filed by close of business Monday, 5 November 2018 the application for unfair dismissal remedy would be dismissed.

[13] The Applicant did not file any material with the Commission by close of business Monday, 5 November 2018.

[14] On 6 November 2018 at 12:59 pm the Applicant’s representative sent correspondence to my chambers apologising for the late submission, advising that while she is assisting the Applicant with the submission she has been struck down with a serious chest infection. Further, that whilst still recovering, she was “still not fully functioning at full speed and today will be working on subpoena’s for witness and their statement”. Attached to the email was a Form F52 application for an order requiring production of documents from the Respondent. The Respondent was not copied into the email. However, shortly after the Respondent sent an email to the Commission seeking clarification in relation to the matter as it had been served with a copy of the Form F52 application in a separate email. The Respondent requested that the application be dismissed as the Applicant did not make submissions by close of business Monday, 5 November 2018.

[15] Section 399A of the 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.

....


(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.”

[16] Section 593(1) of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. The Applicant did not file any material by the date required in opposition to the application to dismiss. However, I will take into account the submission of the Applicant’s representative sent on Tuesday, 6 November 2018 despite this submission being received after the deadline that was set and I have determined to deal with the matter on the papers.

[17] The power to dismiss an application if the non compliance was unreasonable is discretionary. The Applicant failed to comply with the original directions to file by 11 October 2018. At that time, the Applicant was put on notice that failure to comply would lead to the convening of a Non Compliance Hearing. The Applicant eventually responded on 16 October 2018, sought an extension to file materials and was granted an extension until the 23 October 2018. On 23 October 2018, the Applicant filed an outline of submissions. However, while referring to three other witness statements that were to be supplied, the Applicant indicated that it was not in a position to file these statements and sought a further extension. The Applicant said that the statements would be filed by 26 October 2018. No witness statements were filed by that date and have not been filed with the Commission to date.

[18] On 29 October 2018, the matter was allocated to me. Having reviewed the history of the file and the Applicant’s previous failure to comply with directions, I listed the matter for Non Compliance Hearing by telephone on 1 November 2018. Despite repeated attempts to contact the Applicant and his representative on the day of the hearing, neither were contactable to participate in the hearing. Finally, despite being given until close of business the following Monday to provide submissions as to why, in the circumstances, the application should not be dismissed, no response was forthcoming until the Tuesday 7 November 2018 at 12:59pm. The response referred to the Applicant’s representative having been “struck down” with a serious chest infection and had seen a doctor “recently” to prescribe medication. The Applicant’s representative indicated that a medical certificate could be arranged if one was required. I note the directions made it abundantly clear that a medical certificate was required for a claim of illness. However, no medical certificate was provided. I am not satisfied that this is a reasonable explanation. Further, I note that the correspondence attached a Form F52 application for production of documents to the Respondent and advised that it was “working on subpoena’s for witness and their statement”. The matter is listed for Arbitration Conference/Hearing in Launceston on 12 and 13 November 2018. The Applicant’s failure to file material in accordance with the directions has meant that the Respondent would not have had a sufficient opportunity to respond to the Applicant’s materials by the date of the Arbitration Conference/Hearing.

[19] In summary, the Applicant has failed to comply with directions of the Commission and has not provided an acceptable explanation for the failure to comply with directions. Further, the Applicant has failed to attend a hearing of the Commission and has not provided a reasonable explanation for non-attendance. Having regard to all of the circumstances, I am satisfied that the Applicant has unreasonably failed to comply with directions and attend a hearing.

[20] Having considered all the material, I have decided to exercise my discretion under s.399A(1)(a) and (b) of the Act and dismiss the Applicant’s application.

[21] The Arbitration Conference/Hearing in Launceston on 12 and 13 November 2018 will be vacated.

[22] An order will be issued concurrently with this decision.

COMMISSIONER

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