The Fair Work Commission (FWC) has dismissed an unfair dismissal application from an employee unable to attend a hearing because he is in prison.

In an earlier decision in May, the FWC granted the employee an extension on his 33-day-late application, because he attempted to commit suicide 4 days after he was dismissed and spent the following 2 months receiving hospital treatment.

However, the same month, the employee was arrested and remanded by police on a separate manner and was refused bail.

Initially, it was expected that the employee might be released following a trial in August or September, however he was convicted of a number of offences in July and received a 28-month prison sentence, with no eligibility for parole until August 2020.

The employer made a strike-out application in the interim to dismiss the proceedings.

Through representation by another person in the hearing, the employee submitted two reasons why the strike-out application should be refused:

• his ongoing psychological status impeding his ability to properly engage with the proceedings at the point in time of the hearing; and
• his incarceration until at least August 2020 removing his ability to properly engage with, or participate in, proceedings until after that date (although there may be a possibility that he could to give evidence via telephone or video link from prison).

Impractical and unfair on employer to keep case open

“Even if [the employee] was of a better mental capacity to provide instructions, he remains incarcerated until at least August 2020 — almost a full year from now,” Deputy President Boyce said.

“There was no evidence to suggest that this date will see [the employee] released. There is, however, evidence in the form of a court order to suggest [the employee] may be incarcerated for a period beyond his August 2020 parole date (up to November 2021) pursuant to his July 2019 convictions.

“Other charges against [the employee] are also pending trial, and may see either his August 2020 parole date, or his November 2021 release date, further extended.

“[The employee’s representative] put that [the employee] can prosecute his matter from prison. To that end, [the employee’s representative] submitted that [the employee] could attend any hearing by video-link, and that such arrangements were commonplace.

“However, no evidence was led, or submissions made, as to how this arrangement could be facilitated, or when it might be arranged to occur.

“[The employee] has had every opportunity to put on such evidence.

“I do not accept that [the employee] will be in a position to prosecute his matter from prison.  Nor do I accept that it would be fair upon [the employer] to allow [the employee] to give evidence via video-link from prison (i.e. even if video-link can or could be facilitated) due to likely issues of credibility that would arise at any merits hearing.

“I also do not accept that [the employee] will be released from prison within a timeframe that will not be prejudicial to [the employer], and provide it with a ‘fair’ opportunity to defend any allegations made against it.”

An inefficient use of public resources

“[The employee] finds himself in unfortunate circumstances,” Deputy President Boyce said.

“[The employee] is not in a position, physically or mentally, to prosecute his case now or into the foreseeable future.

“Further, it is not clear that he will ever be in a position to do so.

“Allowing the matter to remain on foot flies in the face of the efficient use of public resources, justice to other litigants before the Commission generally, the impact upon [the employer] (being its witnesses and employees), and the efficient and speedy resolution or conclusion of this litigation.

“Even if I am minded (which I am not) to grant [the employee’s] adjournment application on the basis that any prejudice to [the employer] can be ameliorated via a costs order against [the employee] (and in favour of [the employer]), the costs limitations in the Act unfortunately prohibit me from taking that approach.

“Accordingly, it is not in the interests of justice that this claim continue in abeyance essentially indefinitely.

“I therefore dismiss [the employee’s] application for an unfair dismissal remedy in these proceedings.”