FWAFB 7498
Fair Work Act 2009
s.604—Appeal of decisions
Melsteel Pty Ltd
JUSTICE GIUDICE, PRESIDENT
MELBOURNE, 22 NOVEMBER 2011
 This is an appeal, for which permission is required, by Mr L Sayer against a decision by Commissioner Roe on 8 July 2011. 1 In that decision the Commissioner dismissed Mr Sayer’s application under s.394 of the Fair Work Act 2009 (the Act) for relief with respect to the termination of Mr Sayer’s employment by Melsteel Pty Ltd (the respondent). Mr Sayer did not attend the hearing and the application was determined in his absence. The notice of appeal does not contain any grounds. Some correspondence received after the appeal was filed with some potentially relevant matters. Directions were issued on 23 August 2011 which excused the respondent from attending the hearing of the appeal but indicated that if the Full Bench formed the view there was a case to answer, provision would be made for that to occur. When the appeal was called on for hearing on 20 September 2011, Mr Sayer asserted that he had been too unwell to attend the hearing before Commissioner Roe and that he should be given a chance to present his case. After hearing Mr Sayer we made provision for a written submission to be made by the respondent and for Mr Sayer to have a written reply.
 The primary question arising on the appeal is whether, by determining the application in his absence, Commissioner Roe denied Mr Sayer the opportunity to present his case. Other questions arise as well.
 The respondent terminated Mr Sayer’s employment by letter dated 17 September 2010. Mr Sayer filed an application for relief on 28 September 2010. It appears, as the respondent contends, that Mr Sayer did not promptly prosecute his case. The application was listed for telephone conciliation on 28 October 2011. Mr Sayer could not be contacted at the appointed time and the conference was adjourned until 7 February 2011. That conference was subsequently cancelled due to Mr Sayer’s illness. Mr Sayer’s submissions and other material were originally due for filing by 13 December 2010. When he failed to file anything by that date the application was bought on for directions. Senior Deputy President Acton decided that the application would not be programmed for determination until Mr Sayer provided a medical certificate indicating he was fit to proceed. He provided a certificate on 24 January 2011. On 9 February 2011 the matter was set down for determination on 6 and 7 June 2011 and Mr Sayer was directed to file submissions and other material by 18 April 2011. He filed the material as directed. Unfortunately his material did not reach the respondent until 12 May 2011. Subsequently the matter was adjourned until 7 and 8 July 2011 at the respondent’s request.
 Mr Sayer did not attend the scheduled hearing on 7 July 2011 before Commissioner Roe. The Commissioner decided to proceed with the case in his absence. The Commissioner accepted the case put by the respondent on the basis that there was no contrary evidence. Almost inevitably the Commissioner dismissed the application.
 Mr Sayer’s appeal, which was presented by him with support from his mother, rests on two propositions which were not specifically articulated but which emerge from the submissions. The first proposition is that determining the application in Mr Sayer’s absence constituted a denial of natural justice. The second proposition is that if the facts were known, the dismissal was harsh, unjust or unreasonable. We deal first with the allegation of denial of natural justice.
 The question to be answered is whether Mr Sayer was given adequate opportunity to be heard. The following matters are relevant in answering that question. First, it is not disputed that Mr Sayer provided a doctor’s certificate which indicated that he was medically fit to pursue the application. The certificate was provided, as indicated above, on 24 January 2011. Secondly, Mr Sayer did not suggest that he was not aware of the hearing date. His explanation for his non-attendance is that he was not coping well with life at the time and was taking strong drugs for a medical condition which required an operation on 19 July 2011, some 12 days after the hearing. Thirdly, there is no suggestion that Mr Sayer made any attempt to contact Fair Work Australia to indicate that he would not be able to attend or to seek an adjournment.
 Finally, there is the matter of a medical certificate filed by Mr Sayer in conjunction with the appeal. The certificate, given by a medical practitioner, indicated that Mr Sayer was unfit for work on 7 and 8 July 2011. The certificate is dated 11 July 2011 some four days after the hearing. The certificate does not indicate why Mr Sayer was unfit on the relevant days. The notice of appeal is dated 15 July 2011, some four days after the medical certificate and seven days after the Commissioner published his decision. It appears that within a few days of the Commissioner’s decision, Mr Sayer was able to attend a doctor’s surgery and obtain a retrospective medical certificate and within a few more days to prepare and lodge a notice of appeal against the decision. It should be added that on Mr Sayer’s assertion he did not undergo an operation until 19 July 2011.
 When these events are looked at objectively it is clear that there has been no denial of natural justice. Whether he was too ill to attend the hearing on 7 July or not, it is highly unlikely that he was so incapacitated that he was unable to send a message of any kind. But there is no evidence that he took any action to alert anyone to the fact he would not be attending. Mr Sayer was given an adequate opportunity to be heard. While it was open to the Commissioner to adjourn the matter, either generally or subject to some conditions, his decision to decide the matter in the applicant’s absence was not affected by error.
 Mr Sayer also submitted that if he were to be permitted to run his case he would have succeeded. In light of our conclusion on the first ground of appeal it is not necessary that we deal with that submission. When an applicant does not take the opportunity provided to prosecute their application, the application will usually fail. It is difficult to envisage circumstances in which it could be otherwise.
 As Mr Sayer was unrepresented and appeared to have little knowledge of the statutory provisions, we have considered whether there is any error apparent in the way in which the Commissioner decided the application. Our examination of the terms of s.387 of the Act has given risen to one matter which should be dealt with. It is useful to set out s.387:
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
 The section provides that in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, Fair Work Australia must take into account the criteria specified in ss. 387(a) to (g) inclusive. We deal now with the reasons the Commissioner gave for his decision.
 The Commissioner’s view of the material before him is set out in the following passage from his decision:
“ The evidence of the Respondent is that the Applicant was warned on 21 November 2009 in respect to not providing advice of a single day absence and received a verbal warning for drinking at lunch time in October 2008. However, the termination resulted from an incident which took place on 9 August 2010. The Applicant alleged that he was assaulted by his supervisor. The Applicant also alleged earlier incidents of bullying and harassment. The Respondent alleges that the attendance record of the Applicant following the incident of 9 August 2010 was poor.
 The Respondent says that investigations by the Respondent’s workers compensation insurer into the 9 August 2010 incident did not substantiate the allegations of the Applicant and that the police did not decide to lay charges in respect to the alleged assault. Following this the Respondent dismissed the Applicant by correspondence on 17 September 2010. The Applicant says he received the notice on 21 September 2010. The notice said that the Respondent dismissed the Applicant for “false accusations of assault against a supervisor, treating supervisor in a threatening manner, inability to take instructions from your supervisor, two prior warnings have been given and unacceptable attendance.” The Respondent paid three weeks pay in lieu of notice.
 The Respondent provided witness statements from Ian Hunter, Managing Director of the Respondent who was involved in the decision to terminate the Applicant; from the Applicant’s supervisor Mr Savage; and from Peter Bennett an OHS and HR consultant for the Respondent.” 2
 On the basis of the material advanced by the respondent, summarised in this passage, and in the absence of any case by the applicant, the Commissioner dismissed the application. It is clear that he only considered one of the criteria listed in s.387, the one in s.387(a), whether there was a valid reason for the dismissal. Did the Commissioner fall into error by not taking the other criteria in s.387 into account?
 The terms of s.387 are mandatory. Once the Commissioner embarked on a consideration of whether the dismissal was harsh, unjust or unreasonable he was obliged to “take into account” each of the criteria in s.387 to the extent they were relevant. Failure to do so was a significant error of law. But that is not the end of the matter.
 It seems to us that the section is intended to apply when Fair Work Australia is considering matters in issue between the parties to an application. If the application is not contested, or only partly contested, the section may have no or limited application. To take an extreme example, if an applicant abandons their case - ignores notices of listings and directions - the application can be dismissed without the need to apply s.387. Equally, if a respondent were to concede that the termination was harsh, unjust or unreasonable, and put a case on remedy only, a member would be entitled to act on the concession without applying the criteria in s.387.
 When, as in this case, the applicant fails to attend to prosecute their case and the matter is determined in their absence, assuming there is no denial of natural justice, it would be artificial and unproductive to apply the criteria in s.387 on a hypothetical basis involving speculation about the facts. While the applicant had filed material including witness statements, the fact that he did not attend to pursue his case meant that there was no requirement to take that material into account. The respondent’s case was, in effect, unchallenged. Furthermore, the respondent clearly had a defence of substance. If the Commissioner had concluded that the respondent’s case was frivolous or completely lacking in substance it would have been open to him to take another course, but that is not a matter we need to explore.
 It may be prudent, where a matter is determined in the absence of the applicant, for the tribunal to satisfy itself that the respondent had some defence to the action. The Commissioner’s decision is consistent with that approach.
 These considerations lead us to the conclusion that although the Commissioner was wrong not to take all of the relevant criteria in s.387 into account, it was not necessary to apply the criteria in s.387 in the circumstances of this case.
 For completeness we point out that s.587(1) provides for the dismissal of an application. In this case it would have been consistent with this provision to dismiss the application without examining the merits.
 We stress that our view of the matter is conditioned by the fact that the applicant did not attend the hearing. For that reason no adjudication was required between competing cases. The respondent’s case was the only one that was required to be addressed. Where the applicant does present a case, in the ordinary course each of the criteria in s.387 which is capable of being relevant on the facts emerging at the hearing must be taken into account.
 For the reasons we have given we do not consider that it is in the public interest to grant permission to appeal from Commissioner Roe’s decision. We dismiss the appeal.
L Sayer with S Sayer for himself.
Date of last written submission:
13 October 2011.
1  FWA 4373.
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