Brendon Jeremy Leon v Central Queensland Services Pty Ltd
[2022] FWC 1987
•27 JULY 2022
| [2022] FWC 1987 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Brendon Jeremy Leon
v
Central Queensland Services Pty Ltd
(U2022/3757)
| DEPUTY PRESIDENT ASBURY | BRISBANE, 27 JULY 2022 |
Application for an unfair dismissal remedy – Application dismissed.
Background
Mr Brendon Jeremy Leon (the Applicant) has made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by Central Queensland Services Pty Ltd (the Respondent). The Applicant was employed by the Respondent to work at the Caval Ridge Mine from 20 May 2020 until his dismissal on 22 March 2022. The Respondent filed a response to the application on 20 April 2022. It is not in dispute that the dismissal took effect on 22 March 2022 and the application for an unfair dismissal remedy was lodged in the Commission on 30 March 2022 within the 21-day requirement under s.394(2) of the Act.
The Respondent states that the Caval Ridge Mine is a BHP managed workplace and is subject to the BHP Site Access Requirement, which provides that vaccination against COVID-19 is a condition of entry for all workers and visitors at a BHP managed workplace. The Respondent states that the Applicant was dismissed for failing to comply with a lawful and reasonable direction to supply evidence of vaccination that would enable the Respondent to assess the Applicant’s compliance with the BHP Site Access Requirement.
On 8 June 2022, I conducted a telephone Mention/Directions/Case Management Hearing (the hearing) at which the Applicant briefly explained the basis upon which he asserted that this dismissal was unfair. The Applicant contended that the BHP Site Access Requirement states that traditional landowner groups are not required to provide evidence of vaccination. The Applicant also contended that while he is an employee of the Respondent on a drive-in/drive-out arrangement, he is also a traditional landowner. On that basis, the Applicant contended that he should be treated differently from other employees in that he should not be required to produce evidence of vaccination to access the mine site. The Applicant also contended that drive-in/drive-out traditional landowner employees were not required to produce evidence of vaccination at the Saraji Mine, which is also a BHP managed workplace.
The Hearing also dealt with the issuing of Directions for the filing and service of material for the purpose of conducting a hearing in relation to the merits of the application. The Applicant requested a one-month period to file and serve his material and advised that, following the dismissal, he had obtained new employment as a machine operator at a mine site that required him to work on a week-on/week-off roster. The Applicant indicated that it would be difficult for him to prepare his material during his week-on. The Applicant said that he had just arrived at the mine site on the date of the hearing and would commence his week-on roster the following day, 9 June 2022. The Applicant also said that he would arrive home on the evening of 16 June 2022 and would not be able to commence preparation of his material until 17 June 2022. The Applicant confirmed that he would return to the mine site for night shifts from 23 until 30 June 2022.
The Respondent also requested one month to put on its material in response noting that the argument raised by the Applicant would appear not to have been dealt with in previous decisions of the Commission. The Respondent also indicated that it would likely need to call expert evidence in response to the Applicant’s assertion of “natural immunity” developed from previously contracting COVID-19.
Taking into account the views of the parties, I issued Directions on 9 June 2022 requiring:
· the Applicant to file in the Commission, and serve on the Respondent, an outline of submissions and a witness statement of any witness the Applicant intended to rely upon at hearing in support of his application for an unfair dismissal remedy, by no later than 4:00 pm on 7 July 2022; and
· the Respondent to file in the Commission, and serve on the Applicant, an outline of submissions and a witness statement of any witness the Respondent intended to rely upon at hearing in response to the Applicant’s application for an unfair dismissal remedy, by no later than 4:00 pm on 4 August 2022.
I also indicated to the Applicant during the hearing that if he was unable to comply with the Directions, he was expected to file a request for an extension of time prior to the dates by which his material was required to be filed. Further, I indicated that if he should fail to comply with the Directions, the Respondent would be in a position to apply to have his application dismissed. The Applicant indicated that he understood. The Directions issued on 9 June 2022 provided that:
· Requests for an extension of time must be made to the Commission in writing in a timely manner and specify grounds upon which the extension is sought. Relevant documents such as medical certificates should also be provided. Parties must not assume an extension will be granted.
The Applicant did not file any material by 7 July 2022 as required, nor did he seek an extension of time to comply with the Directions.
On 8 July 2022, the Respondent made an application to the Commission under s.399A of the Act to dismiss the Applicant’s application for an unfair dismissal remedy on the basis that the Applicant had unreasonably failed to comply with a Direction relating to his application. The Respondent submits that on 7 and 8 July 2022, multiple attempts were made by the Respondent to contact the Applicant on his mobile and by email, enquiring whether the Applicant intended to file any material in the Commission. No response from the Applicant was received by the Respondent.
On 11 July 2022, my Associate emailed the parties requiring the Applicant to file in the Commission, and serve on the Respondent, by no later than 4:00 pm on 13 July 2022, a response to the Respondent’s dismissal application outlining the reasons why the Applicant had not complied with the Directions together with any supporting documentation. That email also noted that, should the Applicant fail to provide a response or an adequate reason for failing to comply with the Directions, the application may be dismissed without further notice to the Applicant. The Applicant did not reply to that email, nor did he file a response as required. The Applicant has not communicated with the Commission since participating in the Mention/Case Management hearing on 8 June 2022.
Legislative Provisions
Section 399A of the Act is 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.”
The power of the Commission to dismiss an application under s.399A of the Act is discretionary. The exercise of the power is predicated on the Commission being satisfied of the unreasonableness of the applicant’s conduct in relation to the stipulated matters: failing to attend a conference or hearing; failing to comply with a direction or order of the Commission; or failing to discontinue an application after a settlement agreement has been concluded. Relevantly, the Respondent’s application under s.399A is based on subsection (1)(b).
I am satisfied that the Applicant unreasonably failed to comply with the Directions issued on 9 June 2022 relating to his application. At the date of this Decision, the Applicant has breached the Directions by failing to file any material or seek any extension of time to comply. The four-week timeframe granted to the Applicant was longer than would ordinarily have been granted to take account of the Applicant’s work circumstances and the argument that the Applicant wished to advance. The consequences of non-compliance were clearly communicated to, and acknowledged by, the Applicant at the hearing. The Applicant has provided no explanation of his failure to comply. The Applicant did not respond to the attempts made by the Respondent to contact the Applicant on 7 and 8 July 2022. The Applicant has not provided any material or information against the exercise of the discretion to dismiss his application, nor has he filed any material in support of his application. By failing to comply with the Directions, the Applicant has failed to take the opportunity to prosecute his case and has caused unnecessary inconvenience to the Respondent. In all the circumstance, I consider it appropriate to exercise my discretion, in favour of the Respondent, to dismiss the Applicant’s application for an unfair dismissal remedy. An Order to that effect will issue separately.[1]
DEPUTY PRESIDENT
[1] PR744239.
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