Adrian Whittaker v Total Harvesting Pty Ltd T/A Total Harvesting
[2018] FWC 1583
•19 MARCH 2018
| [2018] FWC 1583 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Adrian Whittaker
v
Total Harvesting Pty Ltd T/A Total Harvesting
(U2018/881)
DEPUTY PRESIDENT CLANCY | MELBOURNE, 19 MARCH 2018 |
Application for relief from unfair dismissal – Application to dismiss pursuant to s.399A and s.587 - not granted.
[1] On 30 January 2018, Mr Adrian Whittaker made an unfair dismissal application under section 394 of the Fair Work Act 2009 (the Act). Mr Whittaker’s employment had been terminated by Total Harvesting Pty Ltd T/A Total Harvesting (Total Harvesting) on 16 October 2017.
[2] Total Harvesting has objected to the filing of the unfair dismissal application on the basis that it was not made within 21 days after the dismissal took effect. 1 Consequently, on 13 February 2018, this objection as to jurisdiction was listed for conference/hearing on 23 March 2018 and the parties were notified that Mr Whittaker was required to file with the Commission and serve on Total Harvesting an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 20 February 2018.
[3] The Fair Work Commission attempted to telephone Mr Whittaker regarding his outstanding material and voicemails were left on 20 and 21 February 2018 seeking a return call. In the latter call, the voicemail message included a request that Mr Whittaker call the Commission as soon as possible. On 21 February 2018, Ms Gemma Cronin, as lawyer for Total Harvesting, sent an email to the Commission regarding Mr Whittaker’s failure to file his submissions and other material. This email advised that Total Harvesting regarded the unfair dismissal application as vexatious and malicious and requested that the Commission dismiss it “before any further costs are incurred by the Respondent.” This email was forwarded by the Commission to Mr Whittaker on 22 February 2018.
[4] On 23 February 2018, the Commission advised Ms Cronin that an application to dismiss Mr Whittaker’s unfair dismissal application pursuant to section 399A of the Act needed to be made using a Form F1 Application Form, with the basis upon which it is made outlined within it.
[5] Mr Whittaker was sent a further email by the Commission on 26 February 2018. He was advised his material had been due on 20 February 2018 and was requested to contact the Commission with advice as to when he intended to file it. Mr Whittaker was further advised that if he did not contact the Commission, his unfair dismissal application would be listed for a Non-Compliance hearing on Friday 2 March 2018.
[6] Also on 26 February 2018, Total Harvesting proceeded to file with Commission and serve on Mr Whittaker a Form F1 Application Form. This outlined Total Harvesting’s application pursuant to both s.399A and s.587 of the Act seeking the dismissal of Mr Whittaker’s unfair dismissal application.
[7] On 27 February 2018, the Commission wrote to Mr Whittaker. This letter confirmed an application under the s.399A of the Act had been made and he was directed to file with the Commission and serve on Total Harvesting any submissions outlining why the Commission should not dismiss his unfair dismissal application, together with material in support, by no later than close of business on 6 March 2018. This letter also advised Mr Whittaker that his unfair dismissal application would be dismissed if he did not file his material by this time.
[8] This correspondence prompted a response from Mr Whittaker. He telephoned the Commission and stated he had just returned home, after an absence of approximately 3 weeks, to several messages and letters. In response, the requirement for him to have filed his material by 20 February 2018 was highlighted, as was Total Harvesting’s s.399A application and the requirement for him to make submissions in response to it. Mr Whittaker was advised that he should read the correspondence he had been sent and make submissions as to why his unfair dismissal application should not be dismissed. He was also advised to outline the reasons why he had been away and provide any supporting documentation demonstrating this. Mr Whittaker was put on notice that his submissions should be filed by close of business on 6 March 2018.
Relevant Legislation
[9] Section 399A of the Act provides as follows:
399A Dismissing applications
(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:
(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(b) failed to comply with a direction or order of the FWC relating to the application; or
(c) failed to discontinue the application after a settlement agreement has been concluded.
....
(2) The FWC may exercise its power under subsection (1) on application by the employer.
(3) This section does not limit when the FWC may dismiss an application.
[10] Section 587(1) of the Act provides as follows:
587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
[11] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.
The s.399A Application
[12] Total Harvester’s application to dismiss Mr Whittaker’s unfair dismissal application, insofar as it was made pursuant to section 399A of the Act, is outlined in the Form F1 Application Form as follows:
• Despite numerous attempts to contact Mr Whittaker, his documents were not filed by noon on 20 February 2018;
• Mr Whittaker had sufficient notice of the above requirements and sufficient time to obtain legal advice but failed to do so; and
• In this case, no explanation for the failure to comply with the directions had been provided by Mr Whittaker.
The s.587 Application
[13] The basis of Total Harvester’s application to dismiss Mr Whittaker’s unfair dismissal application, insofar as it was made pursuant to section s.587 of the Act, is outlined in the Form F1 Application Form as follows:
• Mr Whittaker’s unfair dismissal application made on 30 January 2018 is statute barred because he was notified that his employment had been terminated with immediate effect on 16 October 2017 and the reasons he has given for the delay in making it are “unsatisfactory to invoke the Commission’s power under section 394(3) of the Act”;
• Mr Whittaker’s unfair dismissal application is vexatious because Total Harvester has been informed by at least three independent parties that he has made several defamatory statements about it since his dismissal and has failed to respond to two Concerns Notices, with which he has been served pursuant to the Defamation Act 2005 (WA);
• In the absence of providing evidence in support of his unfair dismissal application, the Commission can be satisfied it has no reasonable prospects of success.
[14] Total Harvester reserved its right to seek costs against Mr Whittaker, submitting that his failure to comply with directions of the Commission had resulted in it incurring increased legal expenses.
Mr Whittaker’s response
[15] On 6 March 2018, Mr Whittaker filed a written submission with the Commission and it was then forwarded to Ms Cronin. By way of explanation, Mr Whittaker stated:
“Apologies for the late response for filing for unfair dismissal this was for the following reasons as stated below.
• Due to my current employment services, work schedule, and health commitments within my immediate family.
• My current employer has a strict policy on mobile phones during work, which includes break times, and also the lack of mobile service at times.
• I am able to supply medical notes and certificates that have occurred between these dates in regard to health commitments within my immediate family.
I was employed as a truck mechanic at Total Harvesting within the hours 7am – 5pm; including weekends, late night overtime when needed and breakdowns.
I Adrian Whittaker was made redundant under the fact that a Truck Mechanic was no longer required within my employed hours of 7 – 5 and that the Total Harvesting were wanting to expand the company further more and change the shift from 12pm – 12am Monday to Friday.
Total Harvesting employed a Truck Mechanic on the hours of 7am – 5pm, my previous day shift before a waiting period of 6 months after my redundancy as “Truck Mechanic”.
My reasons for the application after the 21 Day period was due to Total Harvesting working on the assumption that an unfair dismissal case could not be lodged after this period (21 days) , and if so would be extremely difficult to succeed and execute.
I have had extreme difficulty accessing my emails due to internet coverage and work commitments.
I have not been able to seek legal representation and even get the opportunity to speak to my Union representative, yet again due to current work commitments as the hours I work are during the hours they are accessible.
For the above mentioned reasons is for my late response into the unforeseen circumstances that have occurred between todays date the 6th of March 2018 and the 16th of October 2017.
Prior to me being made redundant I did have and was in contact with the Ombudsman both in Bunbury at correspondence via email and phone conversation whilst still being employed at Total Harvesting. I was advised if the role was no longer available it was legal for them to make me redundant. Once I had after that advised them of the position being reinstated it was advised for me to continue with the claim of not unfair dismissal but unlawful dismissal.”
[16] Mr Whittaker also addressed the merits of his unfair dismissal remedy. In essence he submits that that Total Harvesting “did not follow the appropriate steps” in making him redundant but, in any event, his position is not redundant, with others performing his duties and his former position subsequently being advertised and filled.
Total Harvester’s reply
[17] On 7 March 2018, Total Harvesting confirmed it continued to press its application for the dismissal of Mr Whittaker’s unfair dismissal application and responded to Mr Whittaker’s explanation as follows:
“No further information has been provided with respect to the Applicant’s “current employment services” nor the Applicant’s “work schedule”, nor has any documentary evidence been provided such as an employment contract, work roster or mobile phone policy. No further information nor evidence has been provided with respect to the Applicant’s “health commitments within [his] immediate family”.
No documentary evidence has been provided to substantiate any of the above claims, despite the direct request for such by Deputy President Clancy. I note that the Commission used the example of a medical certificate within the direction. The Applicant has failed to submit copies of medical notes and certificates. It is not clear from the Applicant’s submissions whether these “health commitments” have resulted in the need for the Applicant to take a leave of absence from his current employment in order to attend to these “health commitments”. If this is in fact what the Applicant means to submit to the Commission, then the Respondent would submit that the Applicant would have had an opportunity during this time to access his mobile phone. Without being provided with any evidence as to these “health commitments” the Respondent, nor the Commission, can adduce from the submissions whether the Applicant had the opportunity to seek advice with respect to his Application or not, however the Applicant’s claimed inability to do so since 16 October 2017 seems unfeasible.
The Applicant goes on to state, “I have not been able to seek legal representation and even get the opportunity to speak to my Union representative, yet again due to current work commitments as the hours I work are during the hours they are accessible”. Again no evidence has been submitted in support of this submission despite a clear direction from the Commission to do so.
The Applicant states, “Prior to me being made redundant I did have and was in contact with the Ombudsman both in Bunbury at [sic] correspondence via email and phone conversation whilst still being employed at Total Harvesting”. It is very likely that during this contact with the Ombudsman that the Applicant was made aware of the 21 day deadline for lodging an application for unfair dismissal with the Commission.
Based on the Applicant’s submissions it is unlikely that the Applicant will have the opportunity to seek legal representation with respect to his Application. If the Respondent’s application for dismissal is rejected, the Applicant must still satisfy the detailed directions from the Commission contained in the Notice of Listing served on the Applicant in order to respond to the jurisdictional objections filed with the Commission by the Respondent.
The Applicant’s submissions do not indicate that the Applicant’s current work and/or family commitments are likely to change. If the Respondent’s application for dismissal is rejected, it is therefore likely that the Applicant will fail to satisfy the detailed directions from the Commission contained in the Notice of Listing for a second occasion. This will result in the listing of a non-compliance hearing which will result in further costs to the Respondent. The Applicant has had sufficient notice of these requirements and has had sufficient time to obtain legal advice and has failed to do so. The Applicant has failed to provide satisfactory evidence to support the reasons stated for his failure to pursue the Application…”
Telephone Mention
[18] Having reviewed the correspondence received from both parties, I listed the application pursuant to sections 399A and 587 that Mr Whittaker’s unfair dismissal application be dismissed for a telephone mention on 16 March 2018.
[19] At the mention, Mr Whittaker apologised for the lateness of his reply and submitted that it was only after the 21 days had elapsed that he discovered his redundancy was unfair. He also made the allegation that Total Harvesting employed another truck mechanic after his termination and he had witnesses who would attest to this.
[20] Total Harvesting made submissions going to s.587(1)(c), asserting that Mr Whittaker’s unfair dismissal application has no reasonable prospects of success due to the termination having been a genuine redundancy that had followed a lengthy process, comprising 5 meetings and numerous telephone conversations. It submitted that Mr Whittaker had acknowledged receipt of his termination letter on the date his redundancy took effect. Further, it responded to Mr Whittaker’s allegations regarding a truck mechanic having been employed and stated that while it had hired Mr A Malan since Mr Whittaker’s termination, Mr Malan had been engaged at a substantially higher rate of remuneration and was performing the role of maintenance supervisor. Finally, Total Harvesting submitted that Mr Whittaker had failed to particularise the remedy he is seeking but in any event, had destroyed any prospect of being re-engaged due to defamatory remarks and behaviour he had directed towards it.
Consideration – s.399A
[21] On application by an employer, the Commission has the discretion to dismiss an unfair dismissal application under s.399A because there has been unreasonable non-compliance with directions of the Commission. The power to dismiss an application if the non-compliance was unreasonable is discretionary.
[22] The relevant Explanatory Memorandum said of the proposed s.399A that the intention of this provision was “to address the small proportion of applicants who may pursue claims in an improper and unreasonable manner. ....In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant.” 2
[23] Mr Whittaker failed to comply with the requirement of the Commission that he file and serve material. The Commission imposed this requirement so that Mr Whittaker’s application for an extension of time for the making of his unfair dismissal could be heard and determined.
[24] The role of case management was discussed by the Full Bench of the Australian Industrial Relations Commission in Ghalloub v Aon Risk Services Australia Limited (Ghalloub) 3. In summary, that decision outlined the following principles:
1. the starting point of any consideration an application to dismiss is that an applicant is entitled to have his or her case heard;
2. directions play an important role in case management;
3. accepting the importance of case management principles, only in extreme circumstances should a party be shut out from litigating an issue which is fairly arguable;
4. the circumstances of each case is central;
5. a history of non-compliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period of time is relevant;
6. continuing non-compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.
[25] While not an exhaustive list of matters that may be considered, I will adopt the approach of the Full Bench in Ghalloub, in deciding the application made pursuant to s.399A.
[26] I am not persuaded that Mr Whittaker unreasonably failed to comply with the requirement of the Commission that he file and serve his material by noon on 20 February 2018. I note Mr Whittaker is an unrepresented party and this was the first and thus far only direction of the Commission with which he has not complied. He has to date, no history of non-compliance. Further, while I accept Mr Whittaker’s assertions regarding his current employment, work schedule and family health commitments have to date been made without full particulars or supporting evidence, ultimately, he has not evinced an unwillingness to pursue his case. Finally, I am not persuaded that Mr Whittaker’s delay in filing has resulted in prejudice to Total Harvesting and nor will it unduly delay the hearing of the jurisdictional objection that has been raised, noting the current 23 March 2018 listing has not yet passed.
[27] However, as a general rule, parties must comply with Directions of the Commission and Mr Whittaker should not assume that non-compliance with directions of the Commission going forward is acceptable. In the event Mr Whittaker needs an extension to file material in the future, he needs to make application for one to the Commission, prior to the date the material is due. Whether any non-compliance is reasonable or unreasonable will depend on the circumstances of each case and Mr Whittaker is now on notice that any future non-compliance on his behalf could have serious consequences.
Consideration – s.587
[28] Principles relating to the Commission’s general power to dismiss were helpfully identified by Deputy President Gostencnik in Resta v Myer Pty Ltd 4:
“[39] The power of the Commission to summarily dismiss an application should be used sparingly and approached with caution. As Barwick CJ observed in General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others, 5 ‘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’.6
[40] His Honour continued:
‘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. Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 where he says (at p.91):
“A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.”
Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (at p 84), in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.’ 7”
[29] A review of Mr Whittaker’s Form F2-Unfair Dismissal Application suggests that in terms of the merits of his application, he intends to argue that his dismissal was not a case of genuine redundancy and was therefore unfair. 8 Mr Whittaker expanded upon the basis for this assertion in his written submissions filed on 6 March 2018, alleging, amongst other things, a heavy duty mechanic is currently employed by Total Harvesting during the hours he used to work.
[30] In order to proceed with his unfair dismissal application, Mr Whittaker will firstly have to satisfy the Commission there are exceptional circumstances warranting him being granted an extension of time to make it. In terms of the reason for his delay in making it, 9 it would appear that Mr Whittaker intends to assert that it did not become apparent to him that his redundancy was not genuine within the 21 days after his dismissal took effect and that it was only after this that he had become aware another truck mechanic had been hired to work a day shift (the shift he had worked prior to being made redundant).
[31] In his written submissions filed on 6 March 2018, Mr Whittaker put forward further explanations for the delay in filing his unfair dismissal application, which included:
• His current employment, work schedule and health commitments within his immediate family.
• His current employer’s strict policy on mobile phone use during work, including break times.
• The lack of mobile service at times and “extreme” difficulty accessing his emails due to internet coverage and work commitments.
• The inability to seek legal representation or get the opportunity to speak to his union representative, due to current work commitments.
[32] Mr Whittaker indicated he would be able to supply medical notes and certificates relating to his health commitments within his immediate family.
[33] Total Harvesting submitted Mr Whittaker’s unfair dismissal application is statute-barred, due to it having been filed late 10 and that it has no reasonable prospects of success11 because of the reasons outlined above at [20]. Further, Total Harvesting submitted Mr Whittaker’s unfair dismissal application is vexatious12 because:
• it has been informed by “at least three independent parties” that since 16 October 2017, Mr Whittaker has made several defamatory statements about it and these have resulted in damage to its reputation and ability to conduct business in Albany, Bunbury and Western Australia as a whole; and
• Mr Whittaker has repeatedly defamed Total Harvesting on social media and despite being issued with two Concerns Notices pursuant to section 14 of the Defamation Act 2005 (WA), many of the social media posts are yet to have been removed.
[34] Having had regard to the material that has been filed and the submissions of the parties, I am not persuaded that I should dismiss Mr Whittaker’s unfair dismissal application pursuant to s.587 of the Act. There would seem to be a contest regarding the merits of Mr Whittaker’s unfair dismissal application and, to date, Total Harvesting has not submitted it has suffered any prejudice due to his delay. Further, if Mr Whittaker also persuades the Commission that it only became apparent to him that his redundancy was not genuine until some time after his dismissal and this, along with some other factors, provides an acceptable explanation for his delay in both making the unfair dismissal application and taking any other action to dispute it, 13 he may succeed in satisfying the Commission that there are exceptional circumstances that would warrant an extension of time.
[35] Ultimately, I am not persuaded that Mr Whittaker’s case for an extension of time is “so obviously untenable that it cannot possibly succeed” or “manifestly groundless”, such that he should be deprived of the opportunity to have his application for an extension of time heard and determined by the Commission. The evidence of parties should be tested.
Conclusion
[36] For the reasons given above, I advised the parties on 16 March 2018 that I would not grant Total Harvester’s application to dismiss Mr Whittaker’s unfair dismissal application. Total Harvester’s application made pursuant to both s399A and s.587 of the Act is therefore dismissed and an order giving effect to this decision will be issued shortly.
[37] Further directions for the hearing of Mr Whittaker’s application for an extension of time will be sent to the parties and they should be under no illusions as to the importance of compliance.
DEPUTY PRESIDENT
Appearances:
Mr A Whittaker on his own behalf.
Ms G Cronin on behalf of the Respondent.
Hearing details:
2018.
By telephone:
March 16.
1 Section 394(2)(a) of the Fair Work Act 2009.
2 Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161-163].
3 Print PR956665, 21 March 2005, Giudice J, Hamilton DP and Larkin C.
4 [2013] FWC 7080.
5 (1964) 112 CLR 125.
6 (1964) 112 CLR 125, 128–9.
7 (1964) 112 CLR 125, 129–30.
8 Section 385(d) of the Fair Work Act 2009.
9 Section 394(3)(a) of the Fair Work Act 2009.
10 Section 587(1)(a) of the Fair Work Act 2009.
11 Section 587(1)(c) of the Fair Work Act 2009.
12 Section 587(1)(b) of the Fair Work Act 2009.
13 Section 394(3)(c) of the Fair Work Act 2009
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