Allan McGregor v TFA - Legal and Advocacy Pty Ltd
[2022] FWC 1618
•24 JUNE 2022
| [2022] FWC 1618 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Allan McGregor
v
TFA - Legal and Advocacy Pty Ltd
(U2022/1427)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 24 JUNE 2022 |
Application under s 399A – failure to comply with directions – application dismissed
This decision concerns an application made under s 399A of the Fair Work Act 2009 (Act) by TFA - Legal and Advocacy Pty Ltd (respondent) to dismiss an unfair dismissal application brought against it by Mr Allan McGregor.
On 10 May 2022, I issued directions which required that Mr McGregor file and serve, by 24 May 2022, an outline of argument, statements of evidence and a document list in support of his application. Mr McGregor did not comply with these directions. On 25 May 2022, my associate wrote to Mr McGregor noting that his materials were overdue. Mr McGregor did not respond.
On 6 June 2022, I listed Mr McGregor’s application for a non-compliance hearing on 8 June 2022. At the hearing, Mr McGregor submitted that he had not been aware that he was required to file materials and that he had been having problems with his computer. Mr McGregor requested a further period within which to file his materials. I granted Mr McGregor’s request and issued further directions (the second directions) which required him to file and serve his materials by midday on 17 June 2022.
Mr McGregor did not comply with the second directions. Shortly after the deadline set by the second directions, Mr McGregor sent an online query to the Commission requesting confirmation of his matter number. My associate responded, citing the number, which had already been identified in the directions. But no materials were then filed by Mr McGregor.
Later on 17 June 2022, the respondent wrote to my chambers and requested that the Commission dismiss Mr McGregor’s application on the basis that it had not received his materials, and that this was now the second time that he had failed to comply with the Commission’s directions. On 20 June 2022, my associate wrote to the parties on my behalf noting that Mr McGregor had not filed his materials in accordance with the second directions and that if Mr McGregor no longer wished to pursue his application, he should file a notice of discontinuance. The correspondence further stated that if it was the intention of the respondent to make an application to have Mr McGregor’s unfair dismissal application dismissed under s 399A, it should frame an application with reference to that section.
On 20 June 2022, Mr McGregor, who is a solicitor, sent an email to my chambers in which he stated that he had filed a large number of documents in the Commission the previous week, that it was ‘fraudulent’ of the Commission and the respondent to deny that he had filed the documents, and, absurdly, that if he did not receive confirmation that the documents had been filed he would ‘make an application for an injunction seeking an order that the documents have been filed’ as well as orders for costs against both the respondent and the Commission. Later that day, Mr McGregor sent a further email to my chambers stating that he had sent his documents to ‘[email protected]’. On 21 June 2022, my associate wrote to Mr McGregor, noting that the email address he had referred to was incorrect, that various other emails previously sent by him to chambers had used the correct email address, and that the materials required to be filed by the second directions had not been received by the Commission.
On 22 June 2022, I listed the matter for a second non-compliance hearing the following day. Later that afternoon, the respondent made an application that Mr McGregor’s unfair dismissal application be dismissed, either under s 399A(1)(b) on the ground that he had unreasonably failed to comply with directions of the Commission relating to his application, or alternatively under s 587(1)(b) on the basis that his application was vexatious. That afternoon, my associate advised the parties that they should be prepared to address the respondent’s applications under s 399A and s 587(1)(b) at the non-compliance hearing the following day.
Shortly before the second non-compliance hearing, Mr McGregor delivered to the Commission a folder containing a half-page statement relating to his application and a number of attachments. I will return to these below.
At the second non-compliance hearing, Mr McGregor submitted that his failure to comply with the directions and the second directions was not unreasonable because he had done his best to comply with them. In relation to the second directions, he said that he had been to Office Works in the last day or two to have his documents filed and served by email but that his email messages had inexplicably not been delivered, and that he had then decided to file his materials in person at the Commission, which he did. The respondent contended that these were not acceptable explanations, that Mr McGregor had had plenty of time to file his materials, and that his failure to comply with directions of the Commission had been unreasonable.
Section 399A of the Act provides that, on application by the employer, the Commission may dismiss an application for an unfair dismissal remedy if it is satisfied that the applicant has unreasonably failed to comply with a direction or order of the Commission relating to the application (s 399A(1)(b)). The Fair Work Commission Rules 2013 (Rules) do not prescribe any particular form for such an application. Ordinarily a form F1 would be used in such cases however the substance of the respondent’s email application is perfectly adequate and substantially in accordance with the form F1 (r 8(5)). In any event I dispense with compliance with r 8 (see r 6(1)).
It is clear that Mr McGregor failed to comply with my directions of 10 May 2022 and the second directions of 8 June 2022. The question is whether he did so unreasonably, and whether I should then exercise my discretion to dismiss his application under s 399A.
In my opinion Mr McGregor has not provided a reasonable explanation for his failure to comply with the directions of 10 May 2022 or the second directions of 8 June 2022. As to the non-compliance with the first directions, I am not persuaded that Mr McGregor’s ‘computer issues’ prevented him from filing his materials. These alleged problems have not been explained. Moreover, Mr McGregor contended at the first non-compliance hearing that he had not been aware of the requirement to file materials, but this had been conveyed to him in the directions of 10 May 2022. At the time of the first non-compliance hearing there was no application under s 399A before me. My decision to allow Mr McGregor a further period to file his materials does not mean that his failure to comply with the first directions was reasonable, nor does it excuse that failure.
Mr McGregor has not provided a reasonable explanation for his failure to comply with the second directions. I reject Mr McGregor’s contention that he did his best to comply with those directions. I am not convinced that Mr McGregor accidentally sent his materials to the incorrect chambers address. But even if he did, this would not provide a reasonable explanation for his non-compliance. And in any event, it was unreasonable not to send them to the correct address immediately upon receipt of my associate’s message of 21 June 2022. Further, on his own account, it was only in the last couple of days that Mr McGregor went to Office Works to file and serve his materials. This would indicate that at the earliest, Mr McGregor went to Office Works on 21 June 2022, well after the deadline set by the second directions. If, as Mr McGregor said at the first non-compliance hearing, he had been having computer problems, he should have gone to Office Works much earlier. Based on the information before me, there is no good reason why Mr McGregor failed to comply with my directions of 8 June 2022.
I consider that Mr McGregor’s failure to comply with my directions was unreasonable. My discretion to dismiss Mr McGregor’s unfair dismissal application under s 399A has been enlivened. I consider it appropriate to exercise the discretion in this case, for each of the following reasons.
First, Mr McGregor’s failure to comply with directions has been persistent. It has been necessary for me to conduct not one but two non-compliance hearings in relation to Mr McGregor’s conduct. Further, the materials that Mr McGregor delivered to the Commission do not meet the requirements of the second directions because there is no outline of argument and no document list. Mr McGregor should have paid proper attention to the deadlines in the directions, and to the substantive requirements of the directions, particularly given that he is a solicitor. I am not confident that Mr McGregor would follow further directions of the Commission in this matter if it were allowed to proceed.
Secondly, Mr McGregor has behaved unreasonably in other respects. He made absurd allegations that the respondent and the Commission had fraudulently denied receiving his materials. Then, after the respondent’s Ms Pearce advised that she could not attend the second non-compliance hearing for medical reasons and proposed to send a colleague in her place, Mr McGregor objected, requested an adjournment, suggested that Ms Pearce should have provided medical evidence, and claimed costs without any plausible basis.
Thirdly, having reviewed Mr McGregor’s folder of materials, it appears to me that his claim to have been an employee of the respondent is without merit. In his half-page statement Mr McGregor said that he was engaged by the respondent in November 2020 to supervise junior lawyers on a telephone basis from time to time, for which he verbally agreed to charge the respondent a fee of $200 per week. He attached bank statements from his company, Victorian Law Company Pty Ltd, showing payments from the respondent to his company in these amounts. At the hearing Mr McGregor contended that his company had been an employee of the respondent. Later he sent an email to chambers stating that in fact he had been personally employed by the respondent, and that his company was used only to receive payments. However, Mr McGregor acknowledged at the hearing that his arrangement with the respondent did not involve any set hours of work. There is no evidence Mr McGregor worked under the direction and control of the respondent. Further, his company was paid a fixed fee regardless of how much time he spent supervising the respondent’s lawyers. Based on the material before the Commission, it appears to me to be quite clear that Mr McGregor was not the respondent’s employee; rather, there was a commercial agreement between the respondent and Mr McGregor’s company whereby Mr McGregor provided services to the respondent on his company’s behalf.
I note that the attachments filed with Mr McGregor’s statement, aside from the bank statement of his company, comprised a statement from and correspondence with the Victorian Legal Services Board and Commissioner (VLSBC), and a two page extract from the respondent’s website. None of these documents contains anything suggesting that Mr McGregor was the respondent’s employee. Contrary to Mr McGregor’s apparent belief, the fact that he is identified in the VLSBC document as a director of the respondent does not mean or suggest that he was the respondent’s employee.
The Commission issues directions in relation to unfair dismissal applications in order to facilitate a fair and transparent determination of those matters. Parties must comply with the Commission’s directions, not determine for themselves whether and when they will do so. Mr McGregor has been afforded a reasonable opportunity to explain his failure to comply with my directions and further directions. He has not provided a reasonable explanation. It is appropriate that I exercise my discretion in this case to dismiss the application.
The respondent’s application under s 399A is granted. Mr McGregor’s unfair dismissal application is dismissed.
DEPUTY PRESIDENT
Appearances:
A. McGregor for himself
P. Rudra for the respondent
Hearing details:
2022
Melbourne
23 June
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