Andrew Fagg v Er24 Pty Ltd

[2016] FWC 8771

[2016] FWC 8771

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Fagg
v
ER24 Pty Ltd
(U2016/10902)

DEPUTY PRESIDENT CLANCY MELBOURNE, 6 DECEMBER 2016

Application for relief from unfair dismissal.

[1] On 2 September 2016, Mr Andrew Fagg made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Fagg’s employment had been terminated by ER24 Pty Ltd (ER24) on 15 August 2016.

[2] The matter was the subject of conciliation on 12 October 2016 however, the matter was not resolved. Consequently, directions were issued on 20 October 2016 and the matter was listed for hearing on 21-23 December 2016.

[3] Mr Fagg was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 14 November 2016.

[4] On 3 November 2016, ER24 made application for an adjournment of the hearing dates and this was followed by a request from Mr Fagg on 11 November 2016 for an extension for the filing of his material.

[5] On 15 November 2016, ER24’s request for an adjournment was granted and the matter was re-listed for hearing on 18-20 January 2017. Amended directions applicable to both parties were issued. Mr Fagg was required to file his material by noon on 28 November 2016 and ER24 by noon on 19 December 2016.

[6] Mr Fagg did not comply with this direction, filing his material instead at 4.51pm (AEDT) on 28 November 2016.

[7] On 29 November 2016, ER24 made a further request for an adjournment of the hearing dates and filed an application pursuant to s.399A of the Act, that the matter be dismissed as Mr Fagg had failed to comply with the direction of the Fair Work Commission.

[8] On 2 December 2016, the further request from ER24 for an adjournment was refused but amended directions were issued giving it until close of business on 19 December 2016 to file its material.
[9] The matter was otherwise listed for a non compliance mention before me on 5 December 2016.

[10] ER24 submitted that the matter be dismissed as Mr Fagg’s non-compliance with the direction of the Fair Work Commission was unreasonable and had severely prejudiced its ability to respond and prepare for the matter going forward because its key witness would be on annual leave from 6 December 2016 until 16 December 2016. It submitted that the material filed on behalf of Mr Fagg on 28 November 2016 was filed by Legal Vision, which had not filed a Form F53, and in any event, it had not been filed in compliance with the Commission’s directions.

[11] Mr Fagg had filed a response opposing the application pursuant to s.399A of the Act on 30 November 2016 and submitted that his delay was only a matter of a few hours and it could not be said there was prejudice to ER24 as a result.

Conclusion

[12] On application by an employer, the Commission has the discretion to dismiss an unfair dismissal application because there has been unreasonable non compliance with directions of the Commission. 1

[13] The Explanatory Memorandum said 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

[14] The role of case management was discussed by the Full Bench in Ghalloub v Aon Risk Services Australia Limited. 3

[15] In summary, that decision said:

● the starting point of any consideration an application to dismiss is that an applicant is entitled to have his or her case heard;
● directions play an important role in case management;
● 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;
● the circumstances of each case is central;
● 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
● continuing non compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.

[16] While not an exhaustive lists of matters that may be considered, I will adopt the approach of the Full Bench in this matter in deciding whether to exercise my discretion to dismiss the application.

[17] I am not satisfied that Mr Fagg has unreasonably failed to comply with a direction of the Commission. The material upon which he intends to rely was filed on 28 November 2016, the delay in filing was less than 4 hours and the directions for the filing of ER24’s material have subsequently been amended to grant it an additional 5 hours to respond. Further, Mr Fagg has not indicated an unwillingness to have his matter ready for hearing. As outlined, he has now filed his material and I am not persuaded that his delay in filing will result in prejudice or occasion unnecessary expense for ER24 and nor will it delay the hearing of the matter in January 2017.

[18] In these circumstances, I will dismiss ER24’s section 399A application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Appearances:

Mr A Fagg on his own behalf.

Ms M Chadburn on behalf of the Respondent.

Hearing details:

2016.

By telephone:

December 5.

 1 S.399A of the Fair Work Act 2009.

 2   Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161-163].

 3   PR 956665.

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