Zeina Assaf v Contact Centres Australia Pty Ltd
[2011] FWA 4232
•4 JULY 2011
[2011] FWA 4232 |
|
DECISION |
Fair Work Act 2009
s 365 - Application to deal with contraventions involving dismissal
Zeina Assaf
v
Contact Centres Australia Pty Ltd
(C2011/3474)
DEPUTY PRESIDENT SAMS | SYDNEY, 4 JULY 2011 |
Application for Fair Work Australia (FWA) to deal with a general protections dispute – failure of applicant to attend conference proceedings – no explanation and no contact with FWA - want of prosecution – application dismissed.
[1] This decision will determine proceedings filed on 28 February 2011, by Ms Zeina Assaf (‘the applicant’) under s 365 of the Fair Work Act 2009 (‘the Act’). The applicant was dismissed on 21 February 2011, from her position as a casual telesales representative, having been employed by Contact Centres Australia (‘the respondent’) for approximately three months. While the reasons for the applicant’s dismissal are not necessarily relevant for the purposes of this decision, I note that the respondent’s letter of termination states that the applicant’s dismissal was ‘directly related to the short term availability of work’. On the other hand, the applicant stated in her Form F8 that she believed she was dismissed for taking time off to look after her sick father.
[2] Pursuant to s 368 of the Act, I convened a private conference of the parties on 27 June 2001. Mr N Chadwick (Solicitor) attended for the respondent. The applicant did not appear, nor was she represented. There was no advice received in my Chambers as to the reason for the applicant’s non-attendance.
[3] Accordingly, I had cause to have my Associate write to the applicant, by registered mail, in the following terms:
In view of your non-attendance at today’s conference in respect to your general protections application, his Honour has asked me to inform you that:
1. Mr N Chadwick, for the respondent employer, attended today’s proceedings expecting the conciliation conference to occur.
2. Unless his Honour is advised by 4:00pm on Friday, 1 July 2011, that you intend to proceed with your application, the matter will be dismissed for want of prosecution. This will effectively conclude the matter.
3. If you intend to press your application, it will be listed for a further conference on a date to be fixed where you will be required to offer an explanation for your non-attendance today.
No advice was received from the applicant in respect to my direction in (2) above and no communication has been received from her as at the date of this decision.
[4] It is trite to observe that Courts and Tribunals must always adopt a cautious and careful examination of the facts and circumstances of a particular case when considering whether to dismiss a substantive application for want of prosecution by a defaulting party. In General Steel Industries Inc v Commissioner for Railways (NSW) and others (1964) 112 CLR 125, Barwick CJ held that the jurisdiction to terminate an action summarily, for want of a cause of action by the plaintiff, was to be sparingly employed and ought not to be used, save where the lack of the cause of action was clearly demonstrated. At pages 128 and 129 his Honour said:
The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to Order 26, r. 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “be manifest that to allow them” (the pleadings) “to stand would involve useless expense”.
At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or “so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument”; “so to speak apparent at a glance”.
As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same.
[5] Mason J said in Kioa v West (1985) 49 CLR 550 at 582:
It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.
[6] I apprehend from these authorities that the principles to be considered by Fair Work Australia (FWA) in circumstances where a defaulting party, whose application is being considered for peremptory dismissal as a result of a failure to attend proceedings may be summarised as follows:
(a) the defaulting party must be given an opportunity to explain the reasons why the Tribunal should not dismiss his/her claim for a failure to attend the proceedings;
(b) the reasons (if any are given) must be considered in the context of ensuring the proper administration of justice and fairness to both parties. In my opinion, this is particularly so in a s 365 applications, where a failure to attend a mandatory FWA conference under s 368 of the Act, may result in a substantive application being discontinued before it reaches another Court; namely, the Federal Magistrates Court or the Federal Court of Australia.
(c) the defaulting party should be made aware that an application to dismiss his/her substantive application is to be considered by the Tribunal;
(d) the defaulting party should be warned that a failure to attend the hearing of such an application, without a reasonable explanation, may result in the substantive application being dismissed; and
(e) the Tribunal should ensure that all reasonable steps are taken to give an absent party every opportunity to present themselves for hearing: See Grimshaw v Dunbar (1953) 1 All ER 350 at 355.
[7] Of course, in this case, there was no response to FWA’s directions and no further communication has been had with the applicant. Given the applicant’s apparent indifference to pursuing her claim and her failure to make any contact with FWA concerning the application, I do not consider that the interests of justice would be served by taking further steps to encourage her to press the application. In addition, although I have limited material before me, it would seem that the success of the applicant’s claim would face considerable hurdles, given the respondent’s letter of termination citing a lack of work as the reason for her not being offered further casual shifts. Accordingly, pursuant to s 577 of the Act, I propose to dismiss this application for want of prosecution. An order to that effect will accompany this decision.
DEPUTY PRESIDENT
Appearances:
No appearance by the applicant
Mr N Chadwick, Chadwick Workplace Law, for the respondent
Hearing details:
2011
SYDNEY
27 June
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