Ashley Horne v SMS Labour Pty Ltd
[2024] FWC 599
•13 MARCH 2024
| [2024] FWC 599 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ashley Horne
v
SMS LABOUR PTY LTD
(C2023/7546)
| DEPUTY PRESIDENT BINET | PERTH, 13 MARCH 2024 |
Application to deal with contraventions involving dismissal
On 1 December 2023, Mr Ashley Horne (Mr Horne) filed an application (Application) pursuant to section 365 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging that the Respondent, SMS Labour Pty Ltd (SMS Labour), contravened the general protection provisions of the FW Act by dismissing him from his employment.
On 18 December 2023, SMS Labour filed a Form F8A – Response to General Protections Application objecting to the Application on the grounds that Mr Horne had not alleged that the dismissal was in contravention of the general protections’ provisions of the FW Act and that Mr Horne had lodged the Application out of time. (Jurisdictional Objections).
The Application was subsequently allocated to my chambers.
In Coles Supply Chain Pty Ltd v Milford[1] (Coles Decision) the Full Court of the Federal Court held that where a respondent raises a jurisdictional objection to the Application the FWC must first determine the objection.
Directions for the filing of materials in advance of the Hearing were issued to the parties on 19 January 2024 (Directions).
Mr Horne failed to file his materials in accordance with the Directions on 19 January 2024. On 31 January 2024, Mr Horne was notified of his non-compliance and invited to make submissions as to why the Application should not be dismissed and to provide evidence supporting those reasons. These reasons were due to be filed on 1 February 2024.
On 31 January 2024, Mr Horne advised Chambers that he had since filing the Application received a severance payment from SMS Labour and that circumstances in his personal life had affected his ability to file the requested materials outlined in the Directions.
On 1 February 2024, Chambers granted Mr Horne an extension until 2 February 2024 to either file his materials or provide evidence in support of an extension of time to file his materials.
Mr Horne did not respond to this email.
Chambers emailed Mr Horne on both 5 February 2024 and 7 February 2024, informing him that if he continued to be non-complaint with the Directions, the Application would be dismissed. Mr Horne was also reminded that SMS Labour had indicated that it intended to make a costs application if the Application was not discontinued. No response was received from Mr Horne.
On 13 February 2024, the parties were advised that in the absence of any materials being filed by Mr Horne, the Application will be determined on the materials filed by SMS Labour.
Evidence
The Directions required Mr Horne to file an outline of submissions, a signed and dated witness statement from any witness he intended to call, a copy of any authorities on which he relied and a copy of any document on which he relied. As stated above, Mr Horne did not file any materials in response to the Jurisdictional Objections.
SMS Labour filed a written outline of submissions in support of the Jurisdictional Objection.
In the absence of any request from the parties to make oral submissions, I have determined the Jurisdictional Objection on the materials available to me without a hearing.
In reaching my decision, I have considered all the materials filed by the parties, even if not expressly referred to in these reasons for decision.
Background
Mr Horne commenced employment with SMS Labour as an All-Round Operator on 27 June 2023. His employment ceased on 27 October 2023.
SMS Labour argues that any application for an extension of time is meritless given the lack of evidence of any reason for the delay in making the Application, the lack of evidence of efforts made by Mr Horne to contest the dismissal and the lack of merit in respect of the substantive Application.
Consideration
Section 587 of the FW 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.
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.”
Sub-section 587(2) prohibits the FWC relying on section 587 to dismiss an application made pursuant to section 365 on the grounds that the application is frivolous, vexatious or with no reasonable prospects of success. It does not however prevent the FWC from relying on section 587 to dismiss an application made pursuant to section 365 per se.
Nor does sub-section 587(2) limit the grounds on which the FWC may dismiss an application made pursuant to section 365 to only those circumstances in which the application is not made in accordance with the FW Act.
For example, in Mcleod v Kulgera Trading Company Pty Ltd,[2] Vice President Catanzariti dismissed a section 365 application on his own initiative pursuant to section 587 on the grounds that the applicant had not responded to the FWC’s repeated attempts to get in contact with her and had failed to participate in a teleconference.
In doing so, the Vice President relied on a decision of Commissioner Gooley (as she was then) in Rebecca Tomas v Symbion Health[3] (Tomas) in which she stated:
“[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and (c) do not limit Fair Work Australia’s power to dismiss matters for other reasons.
[58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter.”
In a number of cases since, the FWC has accepted that section 587 provides a power to dismiss an application where there is an unreasonable or unexplained non-compliance with directions of the FWC.
The FWC is obliged to perform its functions and exercise its powers in a manner that is fair and just, quick, informal and avoids unnecessary technicalities. The power to dismiss a substantive application should only be exercised cautiously and sparingly because ordering the dismissal of an application would result ‘in the complete extinguishment of an applicant’s right to have his/her application for relief orders under beneficial legislation, heard and determined according to law’.[4]
Mr Horne has failed to file any materials in support of the Application or reply to any correspondence from Chambers.
Due to the history of non-compliance, I am not satisfied that Mr Horne is likely to comply with further directions of the FWC.
Furthermore, it is not in dispute that the Application was made outside of the 21 day time limit. The Application could therefore only be pursued if this time limit was extended.
Section 366(2) of the FW Act provides that the Commission may allow a further period to lodge an application provided there are "exceptional circumstances" taking into account the five nominated criteria. The principles are well established and set out in Nulty v Blue Star Group Pty Ltd.[5] In that matter the Full Bench held the following in relation to "exceptional circumstances":
“[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
The assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances.[6] The test of exceptional circumstances establishes a high hurdle for an applicant to overcome for an extension to be granted.[7] Having taken into account the factors set out in section 366(2) ultimately, the power to grant an extension for the filing of an application which has been lodged out of time is a discretionary one.[8]
Having regard to the limited material provided by Mr Horne, I find that there has been no explanation or submissions to warrant a finding of exceptional circumstances being a reason for the delay in filing the initial application.
I therefore dismiss the Application.
An Order[9] to this effect will issue with this decision.
DEPUTY PRESIDENT
[1] [2020] FCAFC 152.
[2] [2014] FWC 2112.
[3] [2011] FWA 5458.
[4] Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station[2019] FWCFB 2925.
[5] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters (2018) 273 IR 156 at [38].
[7] Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 3[2016] FWCFB 349 at [16].
[8] Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SOP, Gay C, 10 November 2000) Print T2421 at [8].
[9] PR772330.
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