Fair Work Act 2009 (Cth)

JUDGMENT OF: Auxiliary Deputy President Magistrate Carrel

Application for unpaid penalty rates with associated pecuniary penalty application - Applicant fails to attend repeated hearings when required to do so - Whether the Applications should be struck out pursuant to s 40(4) of the South Australian Employment Tribunal Act 2014 - Whether the Applicant has provided an adequate explanation for not prosecuting his Applications - HELD: Medical evidence provided by the Applicant is insufficient - No evidence that the Applicant is unfit to participate in the proceedings - Applications are dismissed for want of prosecution.

Pearce v Return to Work Corporation of South Australia [2023] SAET 89

Magjarraj v Asteron Life Limited [2009] NSWSC 1433

Forbes v Return to Work SA (Petbarn Pty Ltd) [2018] SAET 68

McBride v Teys Australia Pty Ltd [2016] SAET 78

Fancourt v Mercantile Credits Limited (1983) 154 CLR 87

Ulowski v Miller [1968] SASR 277

1. These are the reasons for the decision delivered ex tempore at the hearing on 27 March 2025.
2. Peter Nissen, via his then representatives the Transport Workers Union SA/NT Branch (TWU), filed a money claim on 27 September 2024 along with an associated pecuniary penalty application. The amount claimed by Mr Nissen is $893.56 in penalty rates for work on weekends. The claim is based on an alleged contravention by his former employer, of provisions within its enterprise agreement, namely Grants Coachlines Enterprise Agreement 2016 (the Agreement).
3. The Agreement was approved by the Fair Work Commission on 17 May 2017, following written undertakings by the respondent that the Agreement will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.
4. Mr Nissen was employed by the respondent on a casual basis as a coach driver between 2 May 2023 and 21 February 2024. At the heart of the within application is whether coach drivers employed by the respondent working on weekends are disadvantaged compared to the provisions of the Passenger Vehicle Transport Award 2010.
5. Mr Nissen did not attend the hearing on 27 March 2025. For the reasons that follow, his Applications are dismissed.

1. Following lodgement of the Applications, the respondent filed its response in which it wholly denied liability. It contends that 'better off overall' calculations were submitted to the Fair Work Commission at the time of the Agreement's approval. It disagreed with interpretation used by the TWU to formulate Mr Nissen's claim and said that by its calculations, Mr Nissen was paid in excess of the Agreement.
2. Following the response being filed, the parties participated in two conciliation conferences, but could not resolve the issues between them. Accordingly, the Applications were referred for hearing and determination.
3. On 3 December 2024, the parties appeared before me in a directions hearing. Trial Orders were made, and the matter was set down for hearing on 11 February 2024. Both parties complied with the directions, including the lodgement and service of affidavit material and their respective Statements of Issues and Contentions.
4. On 5 February 2025, the TWU contacted the Tribunal and advised that Mr Nissen was currently incapacitated and would be unable to attend the scheduled hearing in person. Permission was sought to appear via telephone.
5. On 6 February 2025, I caused email correspondence to be sent to the TWU and the applicant to advise that while I was not prepared to conduct the hearing by telephone, I would consider granting permission for Mr Nissen to appear via videolink if evidence of his incapacity to attend in person was provided. The correspondence noted that if Mr Nissen's incapacity was significant, it may be more appropriate for an adjournment to be considered and that the respondent's views would be sought on how the matter should proceed.
6. By return email, Mr Nissen's representative provided copies of documents from The Queen Elizabeth Hospital (QEH) indicating that he was scheduled to have a series of radiological investigations into a medical condition between 17 February 2025 and 21 February 2025, and thereafter an appointment on 25 March 2025. Relevantly, none of the documents were addressed to the Tribunal or referred to an incapacity or inability to attend the scheduled hearing. However, the TWU proposed an adjournment of the hearing to a date sometime in March 2025.
7. By email dated 6 February 2025, the respondent requested that the hearing be rescheduled after 5 March 2025. The hearing was adjourned to 11 March 2025.
8. On 6 March 2025, the TWU advised the Tribunal that on Monday 3 March 2025 it had received a text message from Mr Nissen advising he would not be attending the adjourned hearing due to ill health. Further, the TWU had made a number of attempts to contact Mr Nissen to discuss his circumstances but, no response had been received. The TWU foreshadowed that it would cease to act for him and not attend the hearing on 11 March 2025 in the absence of further correspondence. On 7 March 2025, I caused correspondence to be sent to the TWU reminding it of the procedure for seeking leave of the Tribunal to cease to act in accordance with r 103 of the South Australian Employment Tribunal Rules 2024 (the Rules).
9. On 11 March 2025, the respondent appeared at the hearing and was ready to proceed. Mr Nissen did not, but the TWU were in attendance. When asked of Mr Nissen's whereabouts, the TWU representative advised:

MR ANDRUSHENKO: Well, I presume he's at home. He has been quite ill for the last month and a half.

MR ANDRUSHENKO: He is undergoing tests at the QEH. That's about as far as I know. Whether - what has been diagnosed, I'm not too sure. We've tried multiple times via calls via mobile, text messaging and emails to get a response from him. And the only response we've had was one which was supplied to us last Monday - I think it was the 6th - saying he was, in his words, "too crook to attend".

HER HONOUR: Did he give you any indication of his view on prognosis - when he might feel better?

MR ANDRUSHENKO: None whatsoever. We have - we haven't had a reply yet. There were, you know, numerous calls. I've left messages on his mobile. We're getting nothing back.[1]

1. The TWU further advised that it had endeavoured to provide notice to Mr Nissen of its intention to seek leave to cease to act for him, but had received no reply to its email correspondence.
2. The respondent submitted that it was ready and prepared for hearing, and requested the matter proceed in Mr Nissen's absence. The respondent noted that in its view, it had done everything "above board", the quantum of Mr Nissen's claim was very small and that it had already put a "a lot of time and effort and money into it".[2]
3. Having briefly explained to the respondent that the Court needed to provide procedural fairness to both parties, I adjourned the hearing for a brief period of time to provide the TWU with a further opportunity to contact Mr Nissen. I requested that the TWU attempt to obtain information on any reasonable cause for his absence before deciding what course to take was in the interests of justice.
4. While the TWU was unsuccessful in contacting Mr Nissen, I formed the view that balance was in favour of granting Mr Nissen a further opportunity to present his case. Accordingly, the hearing was rescheduled to 27 March 2025.
5. Following the lodgement of the approved Form P06 by the TWU and having heard the oral submissions of the TWU in relation to the efforts it had made to obtain instructions from Mr Nissen for the hearing, by Orders dated 12 March 2025, leave was granted for the TWU to cease to act, and the parties were given further notice of the rescheduled hearing. The Orders advised that:

...if any party fails to attend the hearing without reasonable cause, pursuant to ss 40 and 42 of the South Australian Employment Tribunal Act 2014, the Tribunal has power to strike out an application or determine it the matter in a party's absence.

1. On 26 March 2025, I caused an email to be sent to the parties reminding them of the Orders made on 12 March 2025, attaching copies of the hearing notices, Orders, and requesting that they confirm their attendance at the hearing scheduled for 27 March 2025. While the respondent replied, no response was received from Mr Nissen.
2. Mr Nissen did not attend the hearing on 27 March 2025. The respondent attended and advised that it was ready to proceed. The respondent reiterated that it had spent a disproportionate amount of money on advice and preparation for the hearing compared to Mr Nissen's claim, but it employed 45 people and wanted to defend its interpretation of the Agreement.[3]

1. Pursuant to s 40(4) of the South Australian Employment Tribunal Act 2014 (SAET Act), the Tribunal may dismiss or strike out all or any part of the proceedings for want of prosecution. Such an order may be made on application by a party of by the Tribunal's own initiative.[4]
2. I am satisfied that Mr Nissen has received notice of the hearings on 11 February 2025, 11 March 2025 and 27 March 2025. I am further satisfied that Mr Nissen has been provided reasonable notice of the potential risk that his application may be dismissed by Orders dated 12 March 2025, and again by email dated 26 March 2025. Having received notice of the hearings and potential adverse consequences of failing to attend, I am satisfied that Mr Nissen has chosen not to respond rather than being unaware of the hearings.
3. The reasons provided for Mr Nissen's inability to attend the first hearing relate to an apparent medical condition. Mr Nissen's limited response to efforts from the TWU to obtain instructions for the second hearing suggest that his inability to attend again related to that medical condition. As noted above, no evidence has been provided by Mr Nissen to support an assertion that he has been, or is, unfit or incapacitated to participate in the proceedings, particularly as the option for him to attend via videolink was offered, and no response was received.
4. In Pearce v Return to Work Corporation of South Australia,[5] Rossi DPJ observed that for a court to either adjourn or vacate a trial on medical grounds, ordinarily there must be medical evidence containing sufficient detail to allow the court to be satisfied that the party concerned is indeed unable to attend and participate in the proceedings.[6] His Honour referred to an explanation of that approach by Barrett J in Magjarraj v Asteron Life Limited,[7] referring to the frequency of cryptic or unexplained 'medical conditions' being relied on to support an assertion that a person is unfit to attend a court hearing, and that putting such statements forward as evidence of an incapacity to participate in court hearings fails the most fundamental test for the reception of expert evidence.[8]
5. This approach is consistent with the view taken by Dolphin PJ in Forbes v Return to Work SA (Petbarn Pty Ltd),[9] when agreeing with the submissions of the respondent that the medical certificate of itself did not prove the applicant was medically unfit to prosecute her proceedings - more was needed.
6. Here, there is even less evidence of Mr Nissen being unfit or having an incapacity to attend court hearings. There is no generic medical certificate providing any statement as to his capacity, let alone a specific document attesting to his inability to participate in these proceedings either in person, or via videolink, as offered to him via his then representatives, the TWU.
7. In my view, copies of correspondence from the QEH notifying him of appointments and investigations do no more than indicate dates on which he had pre-existing arrangements that might clash with potential hearing dates (although none did), with a mere possibility that he may have a medical condition which might give rise to an inability to attend a hearing. Further, the documents provide no basis to infer that Mr Nissen is unable to respond to emails or pick up a telephone and contact the Tribunal to provide further evidence or explanation for his non-attendance. In these circumstances, I am not satisfied that he is medically unfit to attend and prosecute his proceedings.
8. Having reached that conclusion, I considered whether the circumstances suggest it was in the interests of justice to exercise my discretion pursuant to s 40(4) of the SAET Act to strike out or dismiss Mr Nissen's Applications. It is settled law that the discretion to summarily dispose of proceedings, should be exercised sparingly or with great care.[10]
9. I have taken into account that the main objectives of the Tribunal include:

(c) to ensure that applications are processed and resolved as quickly as possible while achieving a just outcome, including by resolving disputes through high-quality processes and the use of mediation and alternative dispute resolution procedures wherever appropriate; and

(d) to keep costs to parties involved in proceedings before the Tribunal to a minimum insofar as is just and appropriate;...[11]

1. I have considered modern case management principles, the applicable Rules and the general principles relating to dismissing a proceeding for want of prosecution.[12] The Tribunal is not a passive vehicle within which parties have an unfettered choice of how, when, and if to prosecute their respective cases. The Tribunal actively manages the conduct and progress of cases before it.
2. While the length of delay caused by Mr Nissen's absence in this matter is not great, there is no information to assess whether he will attend in the foreseeable future if I were to adjourn the proceedings. He has not communicated directly with the Tribunal in any way in response to notices, emails, and Orders.
3. Continuing the proceedings with the uncertainty of Mr Nissen's involvement causes a disadvantage to the respondent. I accept the respondent's submission that the costs it has incurred thus far significantly outweigh the amount being claimed by Mr Nissen, although I note that the potential penalties if contraventions are found may be substantial. The respondent has attended the Tribunal on two occasions ready to proceed with the hearing. The respondent also continues to manage its ongoing workforce operating under by the Agreement, based on the interpretation and advice it has received with respect to weekend rosters and penalty rates.
4. Conversely, striking out Mr Nissen's Applications causes self-evident prejudice to him. However, he can avail himself via an application pursuant to s 82 of the SAET Act, to the Tribunal's discretionary power to revoke this decision should he have a reasonable excuse for his non-attendance.
5. In weighing up the competing interests of the parties in light of the objectives of the Tribunal, I find the balance is in favour of exercising my discretion to dismiss Mr Nissen's Applications.

1. Accordingly, I order that Applications ET-24-04315 and ET-24-04314 be dismissed pursuant to s 40(4) of the SAET Act.

[5] [2023] SAET 89 [43].

[7] [2009] NSWSC 1433.

[9] [2018] SAET 68 [38] - [39].

[10] McBride v Teys Australia Pty Ltd [2016] SAET 78; Fancourt v Mercantile Credits Limited (1983) 154 CLR 87.

[12] Ulowski v Miller [1968] SASR 277 at 280.