Brendan Hoornweg v Ferntree Gully Bolts

[2018] FWC 3235

[2018] FWC 3235

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009
s.394—Unfair dismissal

Brendan Hoornweg
v
Ferntree Gully Bolts
(U2018/1885)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 28 JUNE 2018

Application for relief from unfair dismissal – non-compliance with directions – Application dismissed pursuant to s.399A of the Fair Work Act 2009.

[1] On 23 February 2018, Mr Brendan Hoornweg (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act), seeking a remedy in relation to his dismissal from employment with Ferntree Gully Bolts (the Respondent). The Applicant said that he commenced employment with the Respondent on 20 March 2017 and that he was notified of his dismissal on 22 February 2018, with it taking effect that same day.

[2] On 4 March 2018, the Respondent lodged two jurisdictional objections to the application on the grounds that the Applicant did not meet the minimum employment period required by the Act and that the business is a small business and the dismissal was consistent with the Small Business Fair Dismissal Code. Despite its jurisdictional objection, the Respondent agreed to participate in the conciliation.

[3] The matter was listed for conciliation by telephone on 3 April 2018 however the conciliation could not take place due to the unavailability of the Applicant. The matter was subsequently allocated to me for determination.

[4] On 12 April 2018, directions were issued for the filing of material. The Respondent was directed to file any material upon which it intend to rely in support of its jurisdictional objection by no later than noon on 23 April 2018. The Applicant was directed to file any material upon which he intended to rely in opposition to the Respondent’s jurisdictional objection by no later than noon on 3 May 2018. The matter was listed for jurisdictional hearing on 11 May 2018. The Respondent filed its material on 23 April 2018. The Applicant failed to file any material.

[5] In the afternoon of 3 May 2018, a staff member of the Unfair Dismissal Case Management Team (UDCMT) discussed the Applicant’s failure to comply with directions with him by telephone. He was advised that his material was now overdue. The Applicant said he was unaware that the matter had been listed for a hearing and further, that he had not received any correspondence from the Commission. The UDCMT confirmed that the Applicant’s nominated email address to which correspondence had been sent was correct, and advised that they would resend the documentation. The UDCMT advised the Applicant that he should reply to the correspondence by requesting an extension to file material and an adjournment request if he was unable to attend the hearing scheduled for 11 May 2018. The Applicant advised would not be able make any request to the Commission until after he finished work that day. The Applicant did not file an extension request, nor did he file his material.

[6] On 7 May 2018, my chambers twice attempted to contact the Applicant by telephone. As he did not answer, a voicemail message was left at each attempt, requesting he urgently return the call.

[7] On 8 May 2018, my chambers sent email correspondence to the Applicant advising that the Commission was yet to receive his material or an extension request. The correspondence further advised that if the Applicant did not make contact with the Commission by 12.00pm that day, the jurisdictional hearing scheduled for 11 May 2018 would be cancelled and the matter would be relisted for a non-compliance hearing. The Applicant was warned that his application for unfair dismissal may be struck out due to his non-compliance with directions. Later that day, my chambers contacted the Applicant by telephone. As he did not answer, a voicemail message was left following up on the earlier email. This message advised that the Applicant had been afforded a further opportunity to respond by 5.00pm that day and requested that he contact the Commission as soon as possible if he wanted his application to proceed. Despite the extended period afforded to him, the Applicant failed to respond.

[8] On 10 May 2018, a Notice of Listing was sent to the parties confirming the scheduling of a non-compliance hearing on 18 May 2018. The notice advised that the Applicant had failed to comply with directions and warned that if the Applicant failed to attend the non-compliance hearing, his application for unfair dismissal may be struck out. The Applicant failed to attend the non-compliance hearing.

[9] Following the non-compliance hearing on 18 May 2018, further directions were issued by me. The Applicant was to file and serve a statutory declaration by no later than 5.00pm on 23 May 2018, setting out an explanation for his non-compliance with the directions issued by the Commission on 12 April 2018. The Applicant was advised that if he failed to file a statutory declaration explaining the reason for his non-compliance, I would give consideration to the application on basis of the material before me, which may consequently result in the application being dismissed on the ground of the Applicant’s failure to comply with directions. The Applicant failed to file a statutory declaration.

[10] On 13 June 2018, the Respondent wrote to my chambers requesting that the application for unfair dismissal remedy be dismissed pursuant to s.399A of the Act. The Respondent says that other than the filing of his application, the Applicant had “failed to attend to any matter relating” to his application, including failing to attend the conciliation and the non-compliance hearing and failing to file any material contrary to the directions that have been made. The Respondent further noted that it had complied with every request of the Commission and that it appeared that the Applicant had abandoned his case. Later that day, my chambers wrote to the Applicant advising him of the Respondent’s application under s.399A of the Act and directing him to file and serve any submissions and evidentiary material in opposition to the Respondent’s application by 5.00pm on 20 June 2018. The Applicant failed to file any material.

Powers to dismiss applications

[11] Section 399A of the Act describes some of the circumstances upon which an application for an order under Division 4 of the Act can be dismissed. Section 399A 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.

Note 1:       For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2:       The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.

[12] 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, 1 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’.2

[13] 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.’ 3

[14] Other than the initial lodgement of his application, the Applicant has failed to participate in the prosecution of his case. Despite directions to do so, he has failed to file any material, he has failed to attend a non-compliance hearing at my direction and he has not provided any explanation for these failures. The Applicant has been given adequate opportunity to participate in the conduct of his matter and he was on notice of the consequences he would face should he fail to comply and fail to attend the scheduled hearing. Despite being put on notice, the Applicant did not take any steps to further his application. The Applicant has failed to comply with any direction of the Commission relating to the application. He has provided no explanation for the various instances of his failure to comply with directions. Further, he has not filed any material in opposition to the Respondent’s application under s.399A of the Act.

[15] On the basis of the material before me, and on application by the Respondent, I am satisfied for the reasons earlier stated that the Applicant has unreasonably failed to attend hearings held by the Commission in relation to his application and he has unreasonably failed to comply with directions of the Commission relating to his application. I am persuaded in the circumstances that I should exercise my discretion pursuant to s.399A of the Act to dismiss the Applicant’s application.

Order

1. The Application for an unfair dismissal remedy in U2018/1885 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR607777>

 1 (1964) 112 CLR 125.

 2   Ibid 128-9.

 3   Ibid 129-130.