Todd Donohue v Outdoor Retreats Landscaping Pty Ltd

[2013] FWC 438

[2013] FWC 438

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Todd Donohue
v
Outdoor Retreats Landscaping Pty Ltd
(U2012/11408)

COMMISSIONER MCKENNA SYDNEY, 5 FEBRUARY 2013

Application for unfair dismissal remedy - application dismissed.

[1] On 25 July 2012, Todd Donohue (“the applicant”) lodged an application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy concerning his dismissal by Outdoor Retreats Landscaping Pty Ltd (“the respondent”).

[2] The matter was listed for conciliation before a Fair Work Australia conciliator on 31 July 2012. The file record indicates that the conciliation did not take place as a number of attempts to contact the applicant by telephone were unsuccessful.

[3] The file record contains a file note indicating that in a telephone conversation on 28 August 2012, the applicant confirmed he wished to continue with the application. The applicant also made a telephone call to Fair Work Australia on 28 September 2012 inquiring as to the status of the application. On 28 September 2012, the Fair Work Australia Unfair Dismissal Team (“UDT”) issued directions for the filing and service of materials for an Arbitration Conference/Hearing on 13-14 December 2012. Those directions were emailed to the applicant on the email address he provided and also mailed to him.

[4] The file record contains a file note dated 28 September 2012 indicating that the UDT telephoned the applicant to confirm the issuing of the notice of listing and the directions, and to confirm to the applicant he would need to attend the hearing in person.

[5] On 18 October 2012, the applicant filed by email a submission comprising about three quarters of a page of text. On 6 November 2012, the respondent filed its materials, which were lengthier.

[6] The file contains file notes indicating the UDT telephoned the applicant about the material he filed pursuant to the directions. Relevantly, there is a file note dated 15 November 2012 indicating the applicant confirmed he did not wish to submit anything in addition to the submission filed on 18 October 2012, albeit there is a further file note also dated 15 November 2012 indicating that the applicant later telephoned the UDT to state he may be providing supporting documents for his submissions. There is no record of the filing of any further supporting documents.

[7] On 28 November 2012, the UDT issued a notice of listing revising the two days that had been set for the Arbitration Conference/Hearing to a one-day hearing on 13 December 2012.

[8] It appears the UDT endeavoured to arrange a pre-arbitration conference. It is unclear from the file record whether any such conference occurred, albeit there is a file note indicating that on 10 December 2012 the UDT tried unsuccessfully to telephone the applicant; and a further file note indicating that the respondent was aware of an adjournment and that the respondent had also inquired what would happen if the applicant did not attend the hearing.

[9] On 10 December 2012, the UDT issued a further amended notice of listing advising the listing on 13 December 2012 had been cancelled and that the matter was listed at 10.00am on 18 January 2013 at the tribunal’s premises at 80 William Street, East Sydney. The amended notice of listing was emailed to the applicant on the email address he provided and also mailed to him. The notice of listing contained the following advice: “Any requests for adjournment of this listing must be made in writing and be based on substantial grounds”, with the further advice that inquiries relating to the notice were to be directed to the UDT.

[10] The file was subsequently allocated to me. On the day that had been appointed for the Arbitration Conference/Hearing, namely 18 January 2013, there was no appearance by or on behalf of either party. Absent any adjournment request or explanation for the non-attendance, I made an ex parte statement on transcript that I would reserve a decision - albeit, it must be said, given the history of the matter and absent any communication that subsequently may have been received from the applicant satisfactorily explaining his non-attendance on 18 January 2013, with a view to dismissing the application for want of prosecution.

[11] Prior to issuing my reserved decision, the applicant, on 23 January 2013, sent an email to the UDT inquiring what was happening with the application. In the circumstances, I listed the matter for a mention by telephone on 30 January 2013. I informed the applicant I had reserved a decision on 18 January 2013, relevantly in circumstances where he had not attended the Arbitration Conference/Hearing nor made any adjournment request (and also noted the respondent had not entered an appearance). I noted that the notice of listing forwarded to the applicant by the UDT on 10 December 2012 concerning the Arbitration Conference/Hearing on 18 January 2013 had been forwarded to the same email address the applicant had more recently used to forward the emailed inquiry to the UDT. The applicant submitted he was on holidays and did not receive the emailed notice of listing (i.e. with the effect of the applicant’s submissions inferentially being that he did not receive the notice of listing on any date between 10 December 2012 when the notice of listing was emailed to him and the date of the Arbitration Conference/Hearing on 18 January 2013).

[12] Notwithstanding the applicant’s submission he had been on holidays and did not receive the notice of listing, it may be accepted that by the time the applicant sent the email to the UDT on 23 January 2013 inquiring as to the application he would, by that date at least, have been fully aware of the fact the matter had been listed on 18 January 2013. That is, the email address the applicant used to forward the email to the UDT was the same as the email address used by the UDT to forward the notice of listing for the Arbitration Conference/Hearing and the same address used by my Associate to forward the notice of listing concerning the mention by telephone. If the applicant was sending emails from that email address it may be inferred he received emails sent to that same address.

[13] The file record discloses that the applicant was derelict in relation to participation in the telephone conciliation proceedings and that dereliction apparently was also manifested in relation to the Arbitration Conference/Hearing. I consider the applicant’s email to the UDT on 23 January 2013 to be disingenuous, as he would by then have been aware that the matter had been listed for an Arbitration Conference/Hearing on 18 January 2013 and he had not attended those proceedings. In this respect, I note the file record contains a file note, albeit that was in relation to an earlier listing date, indicating the UDT had confirmed to the applicant he needed to attend the hearing in person. I have also noted and considered the fact the respondent did not participate in the proceedings on the two occasions the application was listed for proceeding before me.

[14] In circumstances where the applicant failed to attend the Arbitration Conference/Hearing, and given the history of the application, I have determined, pursuant to s.587(3)(a) of the Act, to dismiss the application for want of prosecution.

COMMISSIONER

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