FWA 31
Fair Work Act 2009
s 394 - Application for unfair dismissal remedy
The Hanna Group Pty Ltd
DEPUTY PRESIDENT SAMS
SYDNEY, 14 JANUARY 2011
Application for unfair dismissal remedy - failure of applicant to attend proceedings or comply with directions - want of prosecution - application dismissed.
 This decision will determine an application by the Hanna Group Pty Ltd (‘the respondent’) to dismiss an application lodged by Richard Carter (‘the applicant’) under s 394 of the Fair Work Act 2009 (‘the Act’). The application which was pressed by Ms B Pendlebury, Solicitor for the respondent, on 7 December 2010, would have the effect of summarily concluding these proceedings, thereby denying the applicant an opportunity to prosecute his unfair dismissal claim.
 The applicant was dismissed on 30 July 2010, from his position as a process worker, having been employed by the respondent for approximately eight months. While the reasons for the applicant’s dismissal are not necessarily relevant for the purposes of this decision, it is sufficient to note - and perhaps illustrative of his dilatory approach to prosecuting his unfair dismissal claim - that the reasons for his dismissal were said to be excessive absenteeism, an abrasive text message sent to his manager and an earlier warning in respect to careless and reckless forklift driving in the respondent’s warehouse.
 At this juncture, 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.
 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.
 In Australian Railways Union; Ex parte Public Transport Corporation (1993) 117 ALR 17, the High Court, in observing the powers conferred on the Australian Industrial Relations Commission, said at pages 23 and 24:
But the wide scope given to the Commission in determining the relief which it will give does not absolve it from an obligation to observe the rules of procedural fairness in exercising its arbitral function. In Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd ((1989) 167 CLR 513 at p519) this Court pointed out that it was well settled that the Conciliation and Arbitration Commission was bound to act judicially and that the Commission, as its successor, is bound to do likewise. The Court went on to point out that one aspect of the duty to act judicially is the duty to hear a party and to allow him or her a reasonable opportunity to present his or her case and, coupled with that duty, is the duty to consider the case put. And in Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty. Ltd ((1993) 67 ALJR 389, at p390; 112 ALR 193, at p194) the Court said that the Commission has a duty in considering an application to afford a party a reasonable opportunity to allow his or her case to be put.
 I glean from these judgements 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 view, this is particularly so in a s 394 unfair dismissal application, given the emphasis in the Act of ensuring ‘a fair go all round’ as referred to in s 381(2) of the Act. That section is expressed as follows:
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.
(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.
 In determining this application, and taking into account the above principles, it is also necessary to trace the history of these proceedings.
 The applicant’s claim was lodged by Mr J Boghossian, Senior Solicitor, Connect Legal, on 12 August 2010. It was listed for telephone conciliation on 2 September 2010. However, the conciliation proved unsuccessful and directions were issued for a hearing in the Tribunal’s arbitration roster on 7 December 2010. On 21 September 2010, Mr Boghossian filed a notice ceasing to act for the applicant. As a result, all correspondence, after this time, was sent directly to the applicant.
 Due to the applicant’s failure to comply with directions, a non compliance hearing was listed in Melbourne by video link on 14 October 2010. This listing was cancelled and new directions were issued on 11 October 2010. A further non compliance hearing was listed on 28 October 2010, before her Honour Senior Deputy President Acton, by video link from Melbourne. New directions were issued requiring the applicant to file and serve his evidence by 2 November 2010.
 At the hearing, the applicant told her Honour that he was now working for a labour hire company. However, he intended to pursue his claim and gave a commitment to comply with new directions. He expressed gratitude that he would have a further opportunity to prepare his case. The applicant again failed to comply with her Honour’s directions and the matter remained in the Tribunal’s list for arbitration on 7 December 2010. There was no further communication from the applicant.
 On 7 December 2010, Ms Pendlebury appeared for the respondent and noted that the applicant had failed, on three occasions, to comply with directions of FWA, had made no attempt to contact her or the Tribunal and had now failed to attend these proceedings. She sought the dismissal of the application for want of prosecution.
 Nevertheless, for utmost caution, and given the High Court authorities earlier cited, I advised Ms Pendlebury that I would have my Associate write to the applicant by registered mail in the following terms:
In view of your non-attendance at today’s hearing of your unfair dismissal application and your failure to comply with the directions of her Honour Senior Deputy President Acton, his Honour has asked me to inform you that:
1. Ms B Pendlebury, Solicitor for the respondent employer, made an application today to dismiss your matter for want of prosecution.
2. Unless his Honour is advised by 4:00pm next Tuesday, 14 December 2010, that you intend to contest the employer’s application, it will be granted by his Honour in Chambers.
3. If you intend to contest the application, it will be listed for hearing on a date to be fixed.
 There was no response to this correspondence and no further communication has been had with the applicant.
 In my judgement, the applicant has been given more than enough latitude in respect to preparing his case for arbitration. He has plainly demonstrated a complete indifference to the requirements on him under FWA’s Rules and the leniency demonstrated by the Tribunal on a number of occasions for his failure to comply with directions. He has failed to attend the arbitration of his claim without any explanation for his non attendance. By these actions, he has failed to adequately, or at all, demonstrate any further desire to press his application for unfair dismissal. His conduct is dilatory, disrespectful and unacceptable. I do not consider that the interests of justice would be served by any further attempts to encourage him to accept his responsibilities as the applicant in these proceedings. In short, I am satisfied that he has simply abandoned his claim. Consequently, in order that FWA has regard for ensuring ‘a fair go all round’, I intend to grant Ms Pendlebury’s application to dismiss this application for want of prosecution under s 587 of the Act. An order to that effect will accompany this decision.
No appearance by the applicant
Ms B Pendlebury, Pendlebury Workplace Law, for the respondent
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