[2] I issued the following Directions on 4 October, 2010:

[2] The applicant's employment was terminated by the respondent. The reasons provided being the applicant's inability to fulfil the requirements of his position description (unable to drive) and issues related to alleged bullying and harassment within the workplace. [F3 - Employer's response to application]

[3] The applicant rejects the allegations by the respondent claiming that "the employer deliberately orchestrated the events……………..to find a reason to dismiss me…" [F2 - Application for unfair dismissal remedy]

[4] Application pursuant to s. 394 of the Act, was lodged with FWA by the applicant, alleging that his termination was unfair.

[5] Parties advised that the application would be listed for conciliation on Monday 7 December, 2009 (originally listed for conciliation on 3 December 2009 but cancelled and relisted.)

[6] The applicant advised Fair Work Australia (FWA) by email that he did not wish to participate in a conciliation conference and requested that his application be listed for hearing. He also indicated that he would be opposing legal representation for the respondent and wanted that issue dealt with as a preliminary matter.

[7] Directions were issued requiring the parties to address the legal representation issue by written submissions.

[8] Submissions were received from the applicant in respect to his objection to legal representation for the respondent. The applicant advised that "….I am unable to forward the submission to the respondent due to legal action taken by the respondent that prevents me from having any contact with the respondent…." A copy of the applicant's submission was forwarded to the respondent by FWA.

[9] Submissions received from the respondent re legal representation.

[10] By telephone and email the applicant sought and was granted an extension of time in which to provide his response to the respondent's submissions. He complained that he was being discriminated against as he was entitled to 14 days in which to respond and not the 7 days granted. He also said that he had "just arrived back from interstate and received the submission from the respondent……….Another factor is that I am flying out again tomorrow to Adelaide for a week." He requested that FWA "please respond today so I am aware of your decision prior to flying."

[11] Further he advised that FWA should not communicate with him by email but to correspond via mail to his home address.

[12] Submissions in reply were received from the applicant in respect to his objection to legal representation for the respondent. He advised that due to a Restraint Order against him by the respondent he was unable to provide a copy of his submissions to the respondent and requested FWA to forward a copy to the respondent. This was done.

[13] A decision ( [2010] FWA 912) regarding legal representation was issued and said "In all the circumstances I am of the view that it is appropriate to grant permission for legal representation." The decision also included further directions for the parties to deal with the substantive application by written submissions as far as practicable. A copy of the decision along with the Directions and a Notice of Listing was forwarded to the applicant at his home address on that day by certified mail.

[14] The applicant wrote to FWA and included a medical certificate advising that he was unwell. The applicant had noted on the certificate that the contents were not to be disclosed to any party other than the FWA member dealing with his application. That confidentially has been respected. There was no indication on the medical certificate as to when the applicant would be well enough to pursue his application.

[15] Letter from FWA to the applicant requesting he advise whether he was seeking an extension of time in providing written submissions or an adjournment of the listed hearing date of 22 March, 2010.

[16] A further letter from the applicant was received advising that he was "unaware that any directions had been made or that my application had been listed for hearing on 22 March 2010. I am still waiting for correspondence from you with regard to your decision as to whether the other party will be allowed legal representation or not. I would like to confirm I am requesting my application be adjourned for a period of 3 months. My doctor has verbalised this is the period of time that he expects to get my medical condition/health improving. ……..I will keep you advised in writing along with medical certificates to update you with regard to my health and wellbeing status."

[17] On the same day the respondent sought information as to the progress of the application noting that no submissions had been received from the applicant by the date specified in the directions.

[18] Parties advised that the scheduled hearing date had been cancelled 'indefinitely' following the request by the applicant who had been granted an adjournment of 3 months.

[19] Correspondence from respondent seeking information about progress of the matter. Nothing further had been heard from the applicant other than his advice that "My doctor has verbalised this is the period of time that he expects to get my medical condition/health improving" found in his letter of 4 March, 2010. No further medical certificate was provided.

[20] Further correspondence from the respondent noting concerns about the delay in the progress of the matter.

[21] Telephone call from the Fair Work Ombudsman seeking information as to the status of the applicant's unfair dismissal claim and advising that the applicant was proceeding with a claim of alleged discrimination pursuant to s.351 of the Act through that office.

[22] FWA wrote to the applicant advising that the 3 month adjournment would expire on 22 June, 2010, and noting that the respondent was seeking that the matter be listed for determination. It was also noted that there had been no further information or medical certificates provided despite the applicant in his letter of 4 March, 2010, saying he would keep FWA "…..advised in writing along with medical certificates to update you with regard to my health and wellbeing status."

[23] Further Directions were attached requiring the applicant to provide written submissions by 22 June, 2010.

[24] Correspondence received from the applicant stating that he did not intend to comply with the Directions and that he would provide further medical certification attesting to his ill health. The applicant also said "Under no circumstances do I give my consent for this document or any part there of the information contained within the document to be forwarded to any Salvation Army representative or employee to do so will be a direct breach of my privacy. This document is to remain private and confidential and is only to be viewed by Pat Leary." That confidentiality has again been respected.

[25] Correspondence (dated 22 June, 2010), received from the Augusta Road Medical Centre in respect to the applicant. The letter, from a Medical Practitioner, starts "Mr Adrian Venn has requested that I send you a letter. The contents of this letter are confidential and for your use only. Adrian does not wish them released to any other party." The letter indicates that the applicant is not fit to participate in the Directions hearing and that he will be unfit to do so until 22 October, 2010. The confidentiality of the contents of the Medical Practitioner's letter has been respected.

[26] It is noted that there has been no hearing date scheduled, the Directions sought written submissions only.

[27] The respondent filed a Form F4 Objection to Application for Unfair Dismissal Remedy seeking that the application be dismissed. An affidavit attached, sworn by Anne Olding, Human Resource & Risk Management Consultant for the respondent, detailed the lengthy history of this application and other applications made to the Anti-Discrimination Commissioner, the Fair Work Ombudsman and the Worker's Rehabilitation and Compensation Tribunal. The affidavit said that although the respondent has not been provided a copy of the claim with the Fair Work Ombudsman it "is concerned that the allegations raised ………are substantially the same as those raised in his application for Unfair Dismissal. It is now 8 months since Mr Venn's employment was terminated and it does not appear likely that Mr Venn will be able to prosecute his claim in the near future. This prejudices the Salvation Army's ability to properly defend Mr Venn's application. We are concerned that the investigation by the Fair Work Ombudsman may be an abuse of process having regard to this application before Fair Work Australia."

[28] The application to dismiss relied on the following grounds:

"1. the failure of the Applicant to prosecute his claim for unfair dismissal;

2. the significant delay caused by the Applicant in having the matter set down for hearing;

3. prejudice and abuse of process as a result of the Applicant's referral of substantially the same matters to the Fair Work Ombudsman."

[29] Directions were issued in respect to the respondent's application to dismiss. The applicant was required to respond to the directions by 30 August, 2010. The applicant was advised by FWA that no further information deemed by him to be confidential and not available to the respondent would be accepted.

[30] A call was received by the FWA registry from the applicant in respect to the Directions issued on 26 July, 2010. I am advised that the applicant made certain demands of the registry staff and made certain threats if they did not comply, he advised the Registry that he objected to the Directions and wished to make a formal complaint against the FWA member who had issue those Directions. I am advised that the applicant then demanded that the Registry write the letter for him.

[31] In accord with the Directions issued submissions were received from the respondent in respect to the application to dismiss.

"The objective of the Fair Work Act provides for applications to be dealt with as efficiently as possible. Applications for unfair dismissal must be lodged in a short time (14 days) and the objectives of the Act clearly anticipate matters being dealt with as expeditiously as possible. Section 577 of the Fair Work Act specifically requires FWA to exercise its powers in a manner that is 'fair and just' and is 'quick' and 'open and transparent.'

There has been no indication from the Applicant as to when he will be ready to proceed with his application. No detailed evidence has been provided to the extent or nature of his incapacity and whether this extends to providing instructions to his adviser Mr Gavin Horton to prepare the material for him.

It is not in the interests of justice that this application be adjourned indefinitely and the respondent is entitled to have the matter brought to conclusion.

The Respondent will suffer prejudice as a result of the delay both in terms of time, cost and the general prejudice which occurs when witnesses give evidence many many months after the events the subject of the claim.

The Applicant appears able to pursue his claim with the Fair Work Ombudsman but does not wish to pursue his claim with Fair Work Australia. As recently as 7 July the Fair Work Ombudsman provided further particulars of the allegations of adverse action and discrimination alleged by Mr Venn and Salvation Army was required to provide full and detailed responses to those matters which it did on 15 July, 2010. This is an abuse of process."

[34] I note that since 21 January, 2010, and at the direction of the applicant, all correspondence has been forwarded by certified mail to his home address. The applicant claims not to have received certain documents however no mail has been returned to the FWA registry.

[35] The applicant is now DIRECTED to respond to the submissions of the respondent filed in respect to the respondent's application to dismiss the claim by the applicant.

[36] The applicant's response should be forwarded to sam.christensen@justice.tas.gov.au by close of business 23 October, 2010.

[37] Parties are required to comply with Directions issued by FWA.

[38] Accordingly, failure by the applicant to respond will result in his application being dismissed for want of prosecution."

[3] A response from the applicant dated 5 October, 2010, marked 'private and confidential and without prejudice (not to be provided to any other party)' was received by FWA. Included with the letter was a medical certificate stating that the applicant "is not fit to participate in the directions hearing in regard to his unfair dismissal at this stage." The certificate said that the applicant would be unfit to participate until 22 January 2011 (inclusive).

[4] The correspondence states that "any information I provide to you and clearly states is to remain private and confidential you are obliged by the act to keep such information private and confidential furthermore you are obliged under the act to accept all documentation I provide to you relevant to my case."

[5] The applicant accuses FWA of "constant bullying and harassment in directing me to participate in responding to submissions", and accuses FWA staff of telling "lies" and the respondent of providing "false and misleading information" to both FWA and the Fair Work Ombudsman.

[6] Further the applicant says "I refuse to comply with these directions" stating that his medical certificate gives him an exemption from participating.

[7] Nothing further has been heard from the applicant since the letter of 5 October, 2010, however the respondent, by letter dated 17 January, 2011, again seeks the matter be dismissed for want of prosecution.

[8] The applicant was terminated by the respondent on 9 November, 2009, and to date has refused to participate in any proceedings to settle his application made pursuant to s.394 of the Act.

[9] His medical certificate, which he claimed exempted him from complying with the FWA directions, has expired and no further information or certificate has been provided. It is noted by the respondent that the applicant has been able to proceed with his claim made to the Fair Work Ombudsman.

[10] Any information provided to FWA by the applicant is marked as private and confidential and copies are not to be made available to the respondent. The respondent therefore is unable to prepare a defence to the application being unaware of the specifics of the applicant's claim, the relief sought or the reasons for the delay in proceeding.

[11] The respondent has been advised that the applicant has provided a medical certificate indicating he is unfit to participate but at the direction of the applicant a copy of that certificate, or any other information, is not able to be provided to the respondent.

[12] S.381 of the Act prescribes the object of Part 3-2, Unfair Dismissal, in the following terms:

(1) (a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(b) to establish procedures for dealing with unfair dismissal that:

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(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."

[13] The Act requires that a 'fair go all round' is accorded to both parties and the procedures provide a 'quick, flexible and informal' process for resolution.

[14] A relevant consideration required to be taken into account by FWA when determining an extension of time application for an unfair dismissal claim is possible prejudice to the respondent by the delay in the matter proceeding. In this matter the respondent may well suffer prejudice in the delay as the termination is more than 12 months ago and there will be considerable reliance on the evidence of witnesses. Time is a critical factor when witnesses are required to recall events relating to a termination.

[15] Further the applicant refuses to provide the respondent with any information or medical certificates relevant to his claim that the matter not proceed at this time. There is no indication when the applicant will be ready to proceed.

[16] The applicant has stated he does not intend to comply with the directions issued despite the notices forwarded by FWA clearly indicating that:

"Parties are required to comply with Directions issued by FWA.

Accordingly, failure by the applicant to respond will result in his application being dismissed for want of prosecution."

[17] The applicant has responded to the notices but those responses have not addressed the issues raised in the directions and are little more than a litany of criticism, complaint and allegation. The applicant also challenges the integrity of FWA and the respondent's representative.

[18] I am satisfied the applicant has had sufficient opportunity to respond to the directions issued in an appropriate manner. He has not done so. There is no current medical certificate which would suggest he is unable to comply with directions and proceed with his claim.

[19] Accordingly I dismiss the application by Adrian Wayne Venn for want of prosecution.

Printed by authority of the Commonwealth Government Printer