Amy Ann Whalan v Mincor Resources NL
[2023] FWC 607
•20 MARCH 2023
| [2023] FWC 607 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Amy Ann Whalan
v
Mincor Resources NL
(U2023/550)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 20 MARCH 2023 |
Application for an unfair dismissal remedy
Issue and outcome
On 21 January 2023, Ms Amy Ann Whalan (the Applicant) made an unfair dismissal application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act) on the basis that she had been unfairly dismissed by Mincor Resources NL (the Respondent). There is disagreement between both Applicant and Respondent concerning the date the Applicant’s dismissal took effect, and the application is programmed for an extension of time (EOT) hearing. However, in the interim, the Respondent has applied for the Applicant’s application to be dismissed under ss399A and 587(1)(a) of the Act, on the grounds of non-compliance with directions.
In respect of the programming of the matter, directions in respect of the EOT hearing were issued on Wednesday, 1 March 2023, with the Applicant’s materials due to be filed by 1600hrs (AWST) on Wednesday, 8 March 2023 (First Directions). However, on Wednesday, 8 March 2023 at 1423hrs (AWST), the Applicant emailed Chambers stating that she had attempted to find representation and was in the process of seeking legal advice. By 1602hrs (AWST) on that same day, after the deadline for filing materials, the Applicant requested further time to file her EOT materials.
At 1653hrs (AWST) on Wednesday, 8 March 2023, an email was sent to the parties informing the Applicant that on the basis of the materials filed, her extension request for regarding the First Directions was not granted and that she was required to file evidence in support of her request. The Applicant was further directed that her materials regarding the substantive matter in respect of the extension of time request should be filed as a matter of urgency (Second Directions).
At 0332hrs (AWST) on 9 March 2023, the Applicant emailed Chambers stating that she had not found representation and that she was being assessed for eligibility by another provider of legal services. The Applicant stated ‘[f]ingers crossed they take me on as a client’. At 2330hrs (AWST) on 9 March 2023, the Respondent applied for the dismissal of the unfair dismissal application under ss 399A and s 587(1)(a) of the Act.
On Friday, 10 March 2023, at 1239hrs (AWST), the Applicant filed documents in support of her EOT application and, presumedly, in respect of permitting further time for the compliance with the First Directions. However, in light of the Respondent’s application under ss 399A and 587(1)(a), directions were issued concerning the dismissal of the Applicant’s unfair dismissal application, at 1315hrs (AWST) on Friday, 10 March 2023 (the Third Directions). On that same date at 1651hrs (AWST), Chambers asked the Respondent if it continued to press its application under ss 399A and 587(1)(a). On Monday, 13 March 2023, the Respondent confirmed that it did, and hence the parties were directed that the matter would proceed to hearing on Friday, 14 March 2023.
The Third Directions required that the Applicant file materials relating to the Respondent’s application under ss 399A and 587(1)(a) by 1600hrs (AWST) on Tuesday, 14 March 2023. The Applicant did not file materials in response to the Third Directions.
It is observed that in respect of the EOT hearing, the Respondent was due to file materials by Wednesday, 15 March 2023 and the hearing had been set down for 22 March 2023.
Briefly stated, I have considered the submissions and evidence provided by the parties and have concluded, on balance, that the Applicant has unreasonably failed to comply with directions of this Commission relating to her application. I am therefore persuaded that I should exercise my discretion under s 399A and dismiss the unfair dismissal application. An Order[1] dismissing the unfair dismissal application is issued concurrently.
The decision is not one made lightly, and I have indeed adopted a cautious approach when dealing with the application to have the unfair dismissal application dismissed. I am appreciative of the difficulties faced by the Applicant regarding the periods referred to at paragraph [24] of this decision.
It has proved unnecessary to consider whether the unfair dismissal application had been made in accordance with the Act under s 587(1)(a) of the Act, as pressed by the Respondent.
Non-compliance with directions and non-attendance at the conference
The Applicant admits to her non-compliance with the First Directions. She, however, notes that there is documentation she would like to file to support her non-compliance. At hearing, it was explained to the Applicant that the opportunity to file such material had been provided and whilst she had filed materials on Friday, 10 March 2023, no further materials had been submitted. The Applicant conceded that was the case.
It follows that the Applicant has been non-compliant with the First Directions and the Third Directions. Further, with respect to the materials filed by the Applicant, whilst supporting documents have been received, the materials are absent a witness statement and submissions. No explanation is provided regarding what to make of the documents filed on Friday, 10 March 2023.
Legislative framework
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.
The consideration of whether to dismiss an unfair dismissal application pursuant to s 399A(1)(b) of the Act involves a two-stage process.[2] First, the Commission must be satisfied that the applicant unreasonably failed to comply with a direction or order.[3] The decision-maker must make a broad value judgment as to whether the relevant failure was unreasonable in the circumstances.[4] Second, if the decision-maker is satisfied that the applicant has unreasonably failed to comply with one or more of their obligations referred to in sub-section (1)(b) of s 399A of the Act, the decision-maker has a further discretionary decision as to whether the unfair dismissal application should be dismissed.
The following points are relevant considerations in determining whether the Commission should exercise its discretion in this case:
a)the power to dismiss an unfair dismissal application under s 399A of the Act is one that should only be exercised ‘cautiously and sparingly’.[5] It is also well recognised that a Commission member’s discretion under s 399A of the Act is broad and should not be unnecessarily fettered or constrained;[6]
b)there is no requirement that there be ‘repeated’ non-compliance with a direction. The Commission must simply be satisfied that the failure to comply was ‘unreasonable’.[7] However, repeated instances of non-compliance may support a finding of unreasonableness, as this indicates an inability or unwillingness to progress the matter to hearing;[8]
c)where an applicant has been provided ‘with clear direction on what was required, the resources available and the timeframe in which materials were to be filed’, this may also be a matter that indicates that her or his non-compliance was unreasonable.[9] Conversely, non-compliance may not be unreasonable if the applicant was genuinely ‘confused’ as to what was expected of them in complying with the Commission’s directions;[10] and
d)in deciding whether to exercise its power under s 399A, the Commission will be guided by the overarching principle that a ‘fair go all round’ should be provided to all parties, including employers.[11]
The Commission is further empowered to dismiss an unfair dismissal application under s 587 of the Act. That section states:
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.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.
Whenever exercising the power to dismiss an application under s 587, s 578 is relevant. It provides:
578 Matters the FWC must take into account in performing functions etc.
In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
It is accepted that there is no legislative or common law requirement pursuant to which the Commission must persevere with an application, in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at her or his initiative.[12]
Of course, as noted, in these types of applications, one is always guided by the premise that the power to dismiss a substantive application should only be exercised cautiously and sparingly, particularly where, as here, the Applicant has sought orders for relief for her alleged unfair dismissal.[13]
Consideration
The obligation of all applicants is to prosecute their cases in an efficient manner. In doing so, all parties must comply with directions set by the Commission for this purpose. Alternatively, as was said in Aragon v Aegis Safety Pty Ltd, an applicant needs to clearly establish impediments to filing materials in order that a timely extension can potentially be set.[14] The inclusion of s 399A of the Act clarifies the position that the conduct of parties in running their cases before the Commission is important. Parties are accountable for the way in which they run their cases or respond to an application.[15]
The role of case management was discussed by the Full Bench of the Australian Industrial Relations Commission in Ghalloub v Aon Risk Services Australia Ltd.[16] In summary, that decision outlined certain principles, including that the starting point is that an applicant is entitled to have his or her case heard and that only in extreme circumstances should a party be shut out from litigating an issue that is fairly arguable.
I am satisfied that this Commission should extinguish the Applicant’s right to have her application heard. Whilst the Applicant made contact with the Commission twice on Wednesday, 8 March 2023, first to notify that she was attempting to find representation and second to say she had only just secured representation and required additional time to file her materials for the purpose of the EOT hearing, it was the same date that her materials were due to be filed. Further, whilst the Applicant made the request for additional time, she did so in circumstances where there were no supporting materials to substantiate her assertion.
As identified by the Respondent, in the Applicant’s email dated Wednesday, 8 March 2023 time stamped 4.02 PM, she asserted, ‘I have only received legal representation this afternoon’. In the Applicant’s email of Thursday, 9 March 2023, she stated, ‘my eligibility is being assessed… fingers crossed they take me on as a client’. The Applicant provided no indication in respect of the extension of time the Applicant required to file her materials.
Regarding the Third Directions, the Applicant was provided the opportunity to file materials in support of why her application should not be dismissed. At hearing, the Applicant identified she had experienced periods of hospitalisation and was in the process of obtaining a medical certificate from the Midland Hospital, regarding the period between Wednesday, 1 March 2023 up until the date of the hearing. The Applicant filed materials that substantiate her evidence that she was hospitalised for the periods of:
a) 9 January 2023 – 8 February 2023 (letter dated 7 March 2023 from the clinic);
b) 22 December 2022 – 29 December 2022 (letter dated 3 March 2023 from the hospital); and
c) 4 November 2022 – 25 November 2022 (letter dated 7 March 2023 from the clinic).
Whilst appreciating that the Applicant has experienced health issues during the abovementioned periods, the evidence before me does not support a finding that the Applicant was medically unfit during the period provided to submit her materials between Wednesday, 1 March 2023 until Tuesday, 14 March 2023.
After the hearing on Friday, 17 March 2023, the Applicant sent an email to Chambers time stamped 12:50 PM. The Applicant provided further reason for the delay in her materials, citing admittance to an Emergency Department on Friday, 3 March 2023, and subsequent admittance in another health facility where, the Applicant states, she will remain for an indefinite period. As was pointed out to the Applicant at hearing, an opportunity to file materials had been provided to the Applicant in respect of the non-compliance with the First Directions and thereafter in respect to the Respondent’s application to have her unfair dismissal application dismissed. In the circumstances, the email of 17 March 2023 time stamped 12:50 PM is unable to be considered given the parties were provided with the opportunity to file their materials prior to the hearing.
The Applicant also spoke to having attempted to obtain legal advice in respect of the unfair dismissal application and EOT hearing. The Applicant filed an email dated Wednesday, 8 March 2023 time stamped 2:02 PM, from ‘Circle Green Community Legal’. That same email acknowledged that the Applicant had submitted information about her workplace issue to complete her request for assistance. The email continued that a final eligibility decision was to be made based on the information the Applicant had provided. Further, the email noted that the assistance that could be offered was telephone advice and that capacity to offer further assistance was usually assessed after the initial telephone advice. The email stated that there may be a wait for assistance. Whilst the direct evidence supports the Applicant’s contention that she sought to secure legal advice, the evidence again demonstrates that she did so on the day her materials were due to be filed on Wednesday, 8 March 2023.
In my view, the Applicant has unreasonably failed to comply with the First and Third Directions. It was open to the Applicant to have requested an extension of time earlier than the date her materials were due to be filed. The Applicant herself identified that she had experienced many failed attempts to find legal representation since the receipt of the ‘Show Cause Letter’ – back in late November 2022. Further, at no point did the Applicant email Chambers prior to the hearing and advise that she was hospitalised during the period of 1 March 2023 until the date of the hearing. However, in that same period, she was able to make contact with a legal provider and respond to its request for information.
In arriving at the decision, I have considered that the power to dismiss a substantive application should only be exercised cautiously and sparingly. Furthermore, I am guided by the object of Part 3-2 of the Act.
The Applicant has been provided with clear directions on what was required, the resources available and the timeframe in which materials were to be filed.
The object of Part 3-2 not only requires of me to ensure that a ‘fair go all around’ is afforded to the employee, but also to the employer. It had always been open to the Applicant to advise Chambers of her circumstances prior to the dates her materials were due to be filed on Wednesday, 8 March 2023 and Tuesday, 14 March 2023.
I am satisfied that there has been repeated non-compliance by the Applicant with directions of the Commission relating to her application, and that such conduct has been unreasonable in all circumstances.
The Applicant’s repeated non-compliance with directions and absence of sufficient reasons for the same have led me to the conclusion reached.
DEPUTY PRESIDENT
Appearances:
A Koschak, for the Applicant
A Robinson, for the Respondent
Hearing details:
2023.
Perth (by telephone):
17 March.
[1] PR760416.
[2] Lawes v Recochem Inc [2020] FWC 5662, [3]–[5] (Recochem Inc).
[3] Hansen v Calvary Health Care Adelaide Ltd[2016] FWCFB 5223.
[4] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 204–5 [19].
[5] Cole v Roy Hill Station Pty Ltd [2019] FWCFB 2925, [31]–[37] (Roy Hill).
[6] Ibid [37].
[7] Zada v WorkPac Pty Ltd[2019] FWC 7292, [22] (Zada).
[8] Munn v The Grout Guy Pty Ltd [2019] FWC 3772, [28].
[9] Zada (n 7) [20].
[10] Roy Hill (n 5) [43].
[11] Recochem Inc (n 2) [19]; Raschilla v Ausino West Pty Ltd [2017] FWCFB 5952, [12].
[12] Viavattene v Health Care Australia[2013] FWCFB 2532, [39].
[13] Roy Hill (n 5) [31].
[14] [2013] FWC 5993, [39].
[15] Aragon v Aegis Safety Pty Ltd[2013] FWC 5993, [39].
[16] (Australian Industrial Relations Commission, Giudice J, Hamilton DP and Larkin C, 21 March 2005).
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