Travis Gladman v Stef's Transport Pty Ltd
[2023] FWC 2031
•15 AUGUST 2023
| [2023] FWC 2031 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Travis Gladman
v
Stef’s Transport Pty Ltd
(U2023/4703)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 15 AUGUST 2023 |
Application for unfair dismissal remedy – non-responsive and non-compliant applicant – application dismissed
On 30 May 2023 Mr Travis Gladman (the Applicant or Mr Gladman) made an application to the Commission for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (FW Act) in relation to an alleged dismissal by Stef’s Transport Pty Ltd (Stef’s Transport, the employer or the Respondent).
Stef’s Transport, by response dated 19 June 2023, opposed the application.
Background
The matter was listed for conciliation before a Commission staff member on 30 June 2023. A Notice of Listing confirming the date and time of the conciliation was sent to the parties on 6 June 2023 at their nominated email addresses.
On 30 June 2023 a staff conciliator attempted to telephone Mr Gladman three times to commence the conciliation. Mr Gladman did not answer on either occasion. The conciliator left a message for Mr Gladman to return their call to commence the conciliation conference. As Mr Gladman did not answer or return the conciliator’s calls and despite the Respondent being in attendance, the conciliation conference was unable to take place.
On 3 July 2023 Mr Gladman sent the following email to the Commission staff conciliator:
“My apologies for missing this timeslot.
I honestly cannot find any notification of this event via my email thus i had no idea of the meeting.
If its not too much trouble can we please attempt this consultation again at your convenience.”
On 5 July 2023 the Respondent’s representative emailed the Commission indicating that the Respondent agreed to the conciliation being rescheduled but was unable to attend in July due to jury duty commitments.
The matter was then re-listed for conciliation before a Commission staff member on 25 July 2023. A Notice of Listing confirming the date and time of the conciliation was sent to the parties on 11 July 2023 at their nominated email addresses.
On 12 July 2023 Mr Gladman sent the following email to the Commission:
“Thanks.
Unfortunately I have an operation at the Queen Elizabeth hospital on this very day.
That being the case I would like to be granted an adjournment if possible.”
On 12 July 2023 the Commission sent a letter to Mr Gladman requesting him to provide further information by 14 July 2023 in support of his adjournment request.
On 13 July 2023 the Respondent’s representative sent an email to the Commission requesting the conciliation be re-listed to a date after 31 July 2023 due to the Respondent’s jury duty commitments.
On 14 July 2023 the Commission sent a letter to the Respondent requesting it to provide further information by 18 July 2023 in support of its adjournment request.
On 18 July 2023 the Commission informed both Mr Gladman and the Respondent that their adjournment requests had been refused.
On 20 July 2023 the Respondent’s representative informed the Commission that an officer of the Respondent, together with the Respondent’s representative, would be attending the listed conciliation.
Despite the Respondent again being in attendance, the listed conciliation on 25 July 2023 ultimately did not take place because of Mr Gladman’s unavailability.
On 26 July 2023 Mr Gladman sent an email to the Commission stating that he is “available for reconciliation any day bar next Tuesday as [he] [has] some follow up surgery work”.
On 28 July 2023 the Commission responded to Mr Gladman’s email requesting him to advise why he was unable to attend the listed conciliation on 25 July 2023.
No response was received from Mr Gladman and the matter was subsequently allocated to me.
On 4 August 2023 my chambers listed this matter for a directions hearing for 9 August
2023. The Notice of Listing provided:
“• It is your responsibility attend a proceeding, proceedings conducted by telephone or video conference are no exception.
· The Deputy President will not dial you into the proceeding. It is your responsibility to be present at the appointed time.
· Parties not attending proceedings risk the matter being dealt with in their absence.”
The Notice of Listing was sent to parties at their nominated email addresses.
The directions hearing took place on 9 August 2023. An officer of the respondent appeared together with its representative. No appearance was made by Mr Gladman or any person on his behalf. My chambers attempted to telephone Mr Gladman on multiple occasions to commence the directions hearing. Mr Gladman did not answer.
Following the directions hearing on 9 August 2023, I issued the following directions:
“[1] Despite three attempts by my chambers to contact the applicant at the appointed time, the applicant Travis Gladman failed to attend a directions hearing listed before me on 9 August 2023. The respondent appeared at the directions hearing as listed.
[2] This matter is listed for a resumed directions and non-compliance hearing before me at 9:00am (ACST) on Tuesday 15 August 2023 by telephone.
[3] The applicant Travis Gladman is DIRECTED to attend in person (by audio) at the re-listed directions and non-compliance hearing.
[4] The applicant Travis Gladman is DIRECTED to provide in writing to the Commission and copied to the respondent by no later than 12 noon (ACST) on Friday 11 August 2023 an explanation for non-attendance at the directions hearing on 9 August 2023.
[5] If the applicant Travis Gladman fails to comply with these directions or fails to attend in person at the re-listed directions and non-compliance hearing as directed, the applicant is on NOTICE that the Commission will without further notice at that hearing consider on its own motion whether the application should be dismissed under s 587 of the Fair Work Act 2009 (Cth) (FW Act) on the ground that it is not being actively prosecuted by the applicant in accordance with minimum obligations required or on such other ground as appropriate.
[6] If Travis Gladman does not intend to further proceed with this application he is DIRECTED to advise of its discontinuance, either by email or by lodging a formal notice of discontinuance (Form F50) prior to the re-listed directions and non-compliance hearing (copy attached).
[7] Compliance with these directions is mandatory and a failure to comply is likely to disadvantage the party concerned. This includes the potential for the application to be dismissed on the Commission’s own motion for failure to comply with directions.
[8] Any enquiries in relation to these directions should be addressed to my chambers by email at [email protected].
[9] I grant both parties liberty to apply should further or amended directions be sought, consistent with the efficient conduct of proceedings.”
The directions were sent to the nominated email addresses of each party.
Notwithstanding the Commission’s directions no communication (written or otherwise) was received by the Commission from Mr Gladman providing an explanation for non-attendance at the directions hearing by 12 noon (ACST) on Friday 11 August 2023 or otherwise.
The directions and non-compliance hearing took place on 15 August 2023. An officer of the respondent appeared together with its representative. No appearance was made by Mr Gladman or any person on his behalf. My chambers again attempted to telephone Mr Gladman on multiple occasions to commence the directions hearing. Mr Gladman did not answer.
Statutory framework
Section 587 provides:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
Consideration
Mr Gladman has failed to attend proceedings of the Commission including when directed to do so. He has also failed to comply with a direction to provide an explanation for his non-attendance.
It is well-established that an applicant has an obligation to comply with directions and actively and attentively prosecute their claim. There are minimum disciplines associated with invoking a statutory jurisdiction and litigating in a quasi-judicial tribunal. Invoking the Commission’s jurisdiction is neither cost nor consequence free; doing so puts a responding party (in this instance, the employer) to time and expense in defending its position. It also utilises the services of a publicly funded tribunal whose members and staff have statutory obligations to conduct the tribunal’s business fairly and efficiently having regard to the interests of multiple applicants and respondents. A minimum discipline is to attend hearings and comply with directions in advance of hearings or, at the very least, provide explanations and seek timely extensions should compliance not be possible.
In Peter Viavattene v Health Care Australia, a full bench stated:
“There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative.”[1]
It is a significant step to dismiss an application summarily and, in this matter, without a jurisdictional hearing.[2]
However, Mr Gladman has, for reasons unknown to the Commission, been non-responsive to attempts to progress his application. Mr Gladman communicated by email on 3, 12 and 26 July 2023 but not otherwise. No communication has been received from Mr Gladman since the matter was referred to me by the staff conciliator following the two aborted conciliation conferences.
Mr Gladman has been put on notice that his application is at risk of being summarily dismissed yet has failed to be responsive to that notification. The Directions of 9 August 2023 stated:
“If the applicant Travis Gladman fails to comply with these directions or fails to attend in person at the re-listed directions and non-compliance hearing as directed, the applicant is on NOTICE that the Commission will without further notice at that hearing consider on its own motion whether the application should be dismissed under s 587 of the Fair Work Act 2009 (Cth) (FW Act) on the ground that it is not being actively prosecuted by the applicant in accordance with minimum obligations required or on such other ground as appropriate.”
I am satisfied, in light of Mr Gladman’s non-responsiveness and non-compliance, that his application has no reasonable prospects of success as it is not being actively prosecuted to a minimum required level. Section 587 is enlivened.
There are no discretionary reasons not to exercise the power vested by s 587 of the Commission’s own motion. The employer has supported dismissal on this basis. These factors, coupled with prejudice arising to Stef’s Transport in defending an unfair dismissal claim that is not being actively prosecuted makes it appropriate to dismiss the application.
Conclusion
Mr Gladman’s application is dismissed under s 587(1) of the FW Act on the grounds that he has failed to comply with directions of the Commission and has failed to meet minimum obligations required of an applicant in the prosecution of matter U2023/4703.
An Order[3] giving effect to this decision is issued in conjunction with its publication.
DEPUTY PRESIDENT
[1] [2013] FWCFB 2532, [39]; see also Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [19] and Patel v The Tea Centre Pty Ltd [2018] FWC 7814
[2] Raschilla v Ausino West Pty Ltd ATF The Supercrane Unit Trust T/A Supercrane Engineered Lifting Technology [2017]
FWCFB 5952
[3] PR765187
Printed by authority of the Commonwealth Government Printer
<PR765186>
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