Andrew Hooper v ITKM Transport [2017] FWC 5638

1 Fair Work Act 2009 s 394—Unfair dismissal Andrew Hooper v ITKM Transport (U2017/8417) DEPUTY PRESIDENT SAMS SYDNEY, 6 NOVEMBER 2017 Application for an unfair dismissal remedy – failure to attend Commission proceedings – applicant warned of consequences if he continued to be unavailable for proceedings – application dismissed for want of prosecution. [1] Mr Andrew Hooper’s (the ‘applicant’) employment as a casual truck driver for ITKM Transport Pty Ltd (the ‘respondent’) came to an end on 26 July 2017 following a direction from Linfox that he not be permitted on its site for which the respondent was contracted to provide services to. While the respondent denied it had dismissed the applicant, this jurisdictional issue need not be determined for the purposes of this decision. [2] On 4 August 2017, the applicant filed an application, pursuant to s 394 of Fair Work Act 2009 (Cth) (the ‘Act’) in which he sought a remedy (‘dudisal (sic) punishment’) from his alleged unfair dismissal. In accordance with the Commission’s protocols, the parties were advised, on 1 September 2017, of a Conciliator assisted phone conference on 6 September 2017. Shortly after receiving the listing the applicant advised the listing was unsuitable as he now had alternative employment. The matter was relisted for 11 September 2017 at 11:15am. On that day, the Conciliator phoned the applicant’s contact number four times over an hour with no answer and left voice messages seeking a response. Nothing was received. On 21 September 2017, the application was remitted to me for arbitration. [3] On 25 September 2017, I issued directions for the arbitration and listed the matter for a phone conference at 10:00am on 12 October 2017 and hearing on 17 November 2017. At 9:58am on 12 October 2017 my Associate attempted to call the applicant, but could not [2017] FWC 5638 DECISION -- 1 of 5 -- [2017] FWC 5638 2 connect with him. The applicant returned my Associate’s call at approximately 10am, but was seemingly unaware of the scheduled conference. He said he did not want to attend the conference as he had just finished working. He then disconnected the call. Although my Associate tried calling him back twice, he was not able to get in contact with the applicant again. My Associate recorded a file note of the discussion which is referenced in my email to the applicant the following day. The email read: “On 22 September 2017, your unfair dismissal application was listed for conference by phone at 10am on 12 October 2017. When my Associate contacted you on the phone number you provided, you instructed you were not prepared to participate in the conference. The Commission received no prior request to adjourn the conference or advice that you were unwilling to participate. When told that the conference is an informal proceeding in order for the Commission to explore settlement of your claim, you hung up on him. Two further attempts at calling your number shortly thereafter went unanswered to voicemail. You are reminded that an applicant in an unfair dismissal matter under the Fair Work Act must pursue his/her claim with due diligence. This includes complying with all directions of the Commission for the orderly processing of your claim. A failure to do so may result in your application being dismissed. Accordingly, you are directed to attend a conference with the Commission at 10am on Wednesday 26 October 2017 by telephone. A failure to attend or to be available at that time, without satisfactory explanation, may result in your application being dismissed. However, if you have decided not to pursue your unfair dismissal claim, then the Commission should be advised as soon as possible and the file will be closed accordingly.” [4] On 25 October 2017, when my Associate called the applicant for the conference, he said he could not participate as he was driving. He was asked whether he could pull over, but the applicant said he could not. When reminded of my email of 13 October 2017 as to the prospect his application might be dismissed if he failed to attend the proceeding, he replied ‘fair enough’. [5] In light of the above narrative, I have decided to dismiss this application for want of prosecution. These are my reasons. -- 2 of 5 -- [2017] FWC 5638 3 [6] The Commission’s power to dismiss an application are set out generally at s 587 of the Act and specifically in respect to unfair dismissal applications under s 399A. I set out both sections: SECTION 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. SECTION 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. Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587. -- 3 of 5 -- [2017] FWC 5638 4 Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A). (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. [7] The power to dismiss a substantive application should only be exercised cautiously; see: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at para [8]. This is so because it results in the extinguishment of a party’s application, which has been made in order to seek some form of relief, from a beneficial statutory provision. In other words, the application is dismissed before an applicant has had his/her ‘day in court’. [8] That said, s 587 of the Act does not limit the grounds on which the Commission of its own motion, may dismiss an application. In the present case, despite three unsuccessful attempts to convene phone conferences, and the unwillingness of the applicant to engage with the Commission as to a convenient time for him to attend a conference, he seems to have lost interest in pursuing his application. Perhaps, this is unsurprising, given he has obtained alternative employment. In any event, his final words to my Associate warning him his application might be dismissed (‘fair enough’), would seem to corroborate at the very least, indifference, to such an outcome. [9] The Commission’s approach to circumstances of this kind was considered by the Full Bench in Peter Viavattene v Health Care Australia [2013] FWCFB 2532 where at paragraph [39] it was said: ‘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. It is important to bear in mind that there is [a] respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).’ (footnotes omitted) [10] In the exercise of my discretion, I dismiss application U2017/8417 for want of prosecution, under s 587 or s 399A of the Act. I order accordingly. -- 4 of 5 -- [2017] FWC 5638 5 DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <Price code C, PR597233> -- 5 of 5 --