Brennen Cumpston v The Trustee for Mark Haig Family Trust T/A Aldom Motor Body Builders

[2019] FWC 7912

[2019] FWC 7912

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brennen Cumpston
v
The Trustee For Mark Haig Family Trust T/A Aldom Motor Body Builders
(U2019/10766)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 22 NOVEMBER 2019

Application for an unfair dismissal remedy – failure by applicant to attend directions hearings and provide explanations to his representative – sections 399A and 587 Fair Work Act 2009 – application dismissed

[1] This decision concerns whether an unfair dismissal application made on 24 September 2019 by Mr Brennen Cumpston (Mr Cumpston or the Applicant) should be dismissed by the Commission under section 399A and 587 of the Fair Work Act 2009 (the FW Act).

The Facts

[2] The relevant facts are as follows:

[3] Mr Cumpston’s application alleges that he was unfairly dismissed by his former employer Aldom Motor Body Builders (Aldom, the employer or the Respondent) on 6 September 2019.

[4] His application was made on his behalf by a paid agent, Unfair Dismissals Direct.

[5] The application is opposed by the employer which, through its paid agent Employsure Law, filed a response on 24 October 2019.

[6] The matter did not resolve at conciliation on 28 October 2019. The matter was referred to me for hearing and determination.

[7] On 6 November 2019 at 10.48am I caused a Notice of Listing to be issued. It was sent to four persons: Mr Cumpston, Mr Cumpston’s representative, an officer of the employer, and the employer’s representative.

[8] The Notice listed the application for directions for 4.15pm 14 November 2019.

[9] The Notice of Listing provided:

“If a party seeks to be represented by a lawyer or paid agent (section 596 Fair Work Act 2009) at the Directions Hearing, that party and their representative are required to attend the Directions Hearing. If a party is unable to attend, an explanation for their absence will be required.” (my emphasis)

Directions hearing #1

[10] The employer and its representative appeared at the 14 November 2019 directions hearing.

[11] Mr Cumpston failed to attend the directions hearing of 14 November 2019. Mr Cumpston’s representative, Ms Lethorn of Unfair Dismissals Direct, appeared. Ms Lethorn advised that she was having problems contacting Mr Cumpston and sought an adjournment. The employer, which appeared directly and through its paid agent, expressed concern at Mr Cumpston’s non-attendance, opposed the adjournment and opposed permission being granted to his paid agent until it was clear that Mr Cumpston was providing instructions.

[12] I adjourned the directions hearing for 24 hours to 4.15pm 15 November 2019 on the following basis:

•  That I would not determine questions of permission for either paid agent to appear until the adjourned hearing; and

•  I would require Mr Cumpston to attend the adjourned hearing in person with or without his representative, and that his representative undertake to inform Mr Cumpston of that requirement. Ms Lethorn provided that undertaking.

[13] On 14 November 2019 at 5.03pm I caused a further Notice of Listing to be issued. It was sent to four persons: Mr Cumpston, Mr Cumpston’s representative, an officer of the employer, and the employer’s representative.

[14] The Notice listed the application for directions for 4.15pm 15 November 2019.

[15] The Notice of Listing again provided:

“If a party seeks to be represented by a lawyer or paid agent (section 596 Fair Work Act 2009) at the Directions Hearing, that party and their representative are required to attend the Directions Hearing. If a party is unable to attend, an explanation for their absence will be required.” (my emphasis)

Direction hearing #2

[16] The employer and its representative appeared at the 15 November 2019 directions hearing at the appointed time.

[17] Mr Cumpston failed to attend the directions hearing of 15 November 2019.

[18] Mr Cumpston’s representative, Ms Lethorn of Unfair Dismissals Direct, appeared part way through proceedings, and after I had granted permission to the employer to be represented at the directions hearing by its paid agent.

[19] Ms Lethorn advised the hearing:

1. that she had informed Mr Cumpston of the adjourned directions hearing listed for 15 November 2019 and of the Commission’s requirement that he attend in person with or without his representative;

2. that Mr Cumpston, by email, had informed his representative Ms Lethorn that he did not intend to attend the adjourned directions hearing;

3. that she had received no explanation from Mr Cumpston as to why he was not intending to attend the directions hearing; and

4. that she had no instructions from Mr Cumpston as to the further conduct of his application.

[20] Ms Lethorn requested permission to represent Mr Cumpston. This request was opposed. I adjourned this request on the basis that it was not clear that Ms Lethorn could assist in the more efficient conduct of proceedings without her client intending to attend hearings when required and unless she was able to secure instructions from him. However, I directed that Ms Lethorn be permitted to remain in proceedings for the purpose of communicating the status of proceedings to her client.

[21] I advised the hearing of the Commission’s powers to dismiss a matter of its own motion under section 587 of the FW Act. I also advised of my provisional view that Mr Cumpston’s failure to attend two directions hearings as required, the latter notwithstanding having been informed by his representative of my requirement to that effect, provided grounds to exercise the power of dismissal on the Commission’s initiative.

[22] I also drew attention to the power to dismiss a matter under section 399A of the FW Act, on application by the employer.

[23] The employer submitted that it would support dismissal of the application under section 587 of the FW Act.

[24] I issued the following oral directions which were communicated in writing following the hearing on 15 November 2019:

1. Arising from Mr Brennen Cumpston’s non-participation at Directions hearings held on 14 and 15 November 2019, the Fair Work Commission is considering dismissing Mr Cumpston’s application of its own initiative under section 587 of the Fair Work Act 2009 (FW Act).

2. The FAIR WORK COMMISSION DIRECTS Mr Cumpston’s representative to advise Mr Cumpston of the Commission’s intention as above by 9:00am (ACDT), Monday, 18 November 2019.

3. The FAIR WORK COMMISSION DIRECTS that Mr Cumpston or his representative or the Respondent or their representative may file any submissions relevant to the Commission’s consideration under section 587 of the FW Act by 12:00pm (ACDT), Monday, 18 November 2019.

4. Should the Respondent or their representative decide to make an application under section 399A of the FW Act, they are DIRECTED to lodge with the Commission and serve on Mr Cumpston, by 9:00am (ACDT) Monday, 18 November 2019.

5. Compliance with these directions is mandatory and a failure to comply is likely to disadvantage the party concerned.

[25] An application under section 399A was made by the employer on 17 November 2019 (sent by email at 9.15am). The employer’s application seeks dismissal of Mr Cumpston’s application on the ground that under section 399A(1)(a) Mr Cumpston has failed to attend two directions hearings and failed to comply with a requirement that he do so. The employer also supports dismissal of the application under section 587 of the FW Act.

[26] No submissions were received from Mr Cumpston either directly or via his representative by 12 noon 15 November 2019. Mr Cumpston was remined of this by email from my chambers during the afternoon of 18 November 2019.

[27] The following day, at 4.10pm on 19 November 2019, the parties were advised that in the absence of further submissions being received, the Commission would proceed to make a decision on the matter.

Post hearing communication

[28] In the course of considering my decision, my chambers has received a number of emails from Mr Cumpston. On 20 November 2019 at 12.32pm Mr Cumpston sent the following email:

“There has been no absence of communication. I have been emailing chambers since monday.”

[29] At 12.34pm the same day, Mr Cumpston emailed as follows:

“Also my representative has not been contacting me all this week, can I possibly get time to organise a representative who will actually help me? Thank you.”

[30] My chambers checked the Commission email system, both in-chambers and to the registry. No communication from Mr Cumpston prior to his email received by chambers at 12.32pm on 20 November 2019 was located. My chambers then responded (at 1.16pm the same day) in the following terms:

“Your two emails sent today to chambers have been received and drawn to the attention of Deputy President Anderson. As advised, the Deputy President has reserved a decision on this matter. Chambers has no record of emails from you since Monday. Your two emails of today’s date and this reply have been copied to parties and representatives, as the Commission requires all correspondence to be communicated to each party.”

[31] At 2.55pm (the same day), Mr Cumpston emailed as follows:

“Apologies, my emails have been sent to the wrong email address, I was saying this has been called off too early as I had my phone operational not even 1 business day after the last hearing, my representative has not got back to me not has she done anything to aid this matter.”

[32] And then at 2.56pm:

“I accidentally sent them to nish soorpiyava from employsure.”

[33] At 3.07pm (the same day) I caused the following email to be sent to Mr Cumpston from chambers:

“The Deputy President requests copies of all emails you intended to send to the Commission but mistakenly sent to Employsure as alleged below.”

[34] At 3.56pm (the same day) Ms Soorpiyava solicitor from Employsure emailed the Commission as follows:

“All of your email correspondence below in this matter was just brought to my attention. To assist the Commission…I can confirm that I received a single reply from the Applicant at 12.22pm ACDT Monday 18 November 2019. I attach a copy of that email…his reply appears to be transmitted outside of the timeframe by which the Applicant was required to file and serve any submissions he wished to rely on.”

[35] The attached email is an email sent on 18 November 2019 at 12.22pm by Mr Cumpston to Ms Soorpiyava. It reads:

“I believe this to be called off way too early as I was never given reasonable chance to explain my reason nor give an eta on an appropriate time for a hearing which fyi would be perfect today, not even one business day later than the original date…”

[36] On 21 November 2019 at 9.52am Mr Cumpston emailed chambers with a copy of an email he had sent to his representative at 3.52pm on 18 November 2019 indicating “I was supposed to cc chambers in this email sent to sharni”.

Consideration

[37] Section 587(1) of the Act provides:

“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.”

[38] Section 399A of the Act provides:

“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.”

[39] Mr Cumpston’s unfair dismissal application is an application under Division 4 of Part 3-2 of the FW Act. Accordingly, the power of dismissal on the ground of non-compliance under section 399A are available to the Commission, given the employer’s application.

[40] The employer’s application was served on Mr Cumpston by email, and by further email to his representative.

[41] Although the employer’s application was filed and served 15 minutes after the time I had directed, this lapse of time has been of no material prejudice. I deal with the employer’s application on its merits.

[42] I also deal with this matter in the context of my powers under section 587 of the FW Act.

[43] Mr Cumpston has acted unreasonably in not complying with Commission requirements. He has twice not attended a directions hearing he was required to attend and despite having written notice of his obligation to do so.

[44] With some exceptions, permission to be represented by a lawyer or paid agent in proceedings before the Commission is a pre-condition for representation by virtue of section 596 of the FW Act. The obligation I imposed on Mr Cumpston to attend a directions hearing on his unfair dismissal claim (being a first hearing in advance of permission being granted) is self-evident. If permission is not granted, that party is not represented and proceedings cannot be conducted in a fair and efficient manner. The obligation to attend prior to a decision on permission being made enables the Commission to make that decision on its merits without being unduly influenced by potential inefficiency in case management should permission not be granted.

[45] It does not automatically follow that because unreasonable conduct has been found that an application must be dismissed. Dismissing an application, whether under section 399A or section 587, remains a serious matter in the exercise of a discretion. What is required is the exercise of justice in the circumstances, consistent with the statutory object pertaining to unfair dismissal applications of a “fair go all round”.

[46] I now consider whether it is appropriate to exercise the discretion vested in me by section 587.

[47] It is a well-established principle that an applicant has an obligation to comply with directions of the Commission and to actively and attentively prosecute their application. There are certain minimum disciplines associated with invoking a statutory jurisdiction and litigating a claim against a private individual or business in a quasi-judicial tribunal such as the Commission. Invoking the Commission’s jurisdiction is neither cost nor consequence free; doing so utilises the services of publicly funded members and staff who collectively have statutory obligations to conduct the institution’s business fairly, efficiently and in a timely manner having regard to the interests of all applicants and respondents. One such discipline is to comply with directions in advance of hearings.

[48] In Peter Viavattene v Health Care Australia the Full Bench stated at [39]:

“There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).” 1

[49] As noted, it is a significant matter to dismiss an application that is otherwise within jurisdiction without a merits hearing. However, the parliament has underscored the importance of the principle of actively and attentively prosecuting one’s application by empowering the Commission to dismiss applications of its own motion and to further empower the Commission to do so for specific non-compliance reasons in the unfair dismissal jurisdiction on application by a respondent employer (section 399A FW Act).

[50] I concur with the observations of Deputy President Colman in Diane Porteous v G. Kakafikas and A.G. Bek Partnership T/A Yarra Glen Pharmacy:

“[19] It is completely unacceptable that a person can institute a legal proceeding, fail to prosecute it, and waste the other party’s time and that of the Commission, all with impunity and at no cost to themselves other than a filing fee of $73.20. Although there is the possibility under the Act to bring an application for costs, there is a high bar for success and such applications are, understandably, rarely brought. Further, in many cases, particularly those involving small businesses, there are no costs such as legal fees that might be recouped through cost orders. What has been expended is valuable time that could have been put to productive use. In my view there should be more robust consequences under the Act for litigants who fail to make reasonable efforts to prosecute applications.” 2

[51] I take account that Mr Cumpston’s representative twice attempted to appear on his behalf. Mr Cumpston has purported to be represented through a paid agent but one who is yet to be granted permission. He placed his representative, the employer and the Commission in an invidious position.

[52] Through no apparent fault on Ms Lethorn’s part, her client did not appear as required and failed to provide her instructions by way of explanation for his non-compliance.

[53] The employer has twice appeared directly and via its paid agent, at its cost, only to see proceedings adjourned and the case against it remaining in abeyance.

[54] The Commission has been unable to fairly determine Mr Cumpston’s representatives request for permission in his absence and without current instructions having been given.

[55] I find that Mr Cumpston has failed to attend in person on two occasions despite being required to attend telephone hearings, the second after expressly being informed by his representative of the Commission’s requirement that he do so.

[56] Mr Cumpston’s emails to my chambers on 20 and 21 November 2019 (and that from Employsure of 20 November) are relevant. In the interests of fairness I take them into account. In particular I take into account Mr Cumpston’s email of 12.22pm 18 November 2019, even though it was sent (to the wrong party) 22 minutes beyond the 12 noon deadline which had been directed. There is no prejudice to the employer by the lapse of this 22 minutes. For similar reasons, I accepted the employer’s section 399A application being filed 15 minutes late.

[57] These further emails from Mr Cumpston suggest that he is not indifferent to the fate of his application but is unhappy with his representative. They indicate that he did respond at 12.22pm on 18 November 2019 to the employer’s strike-out application (but mistakenly sent that response to the employer’s representative rather than the Commission).

[58] This weighs somewhat against the exercise of my discretion.

[59] Having responded, what is most material is the substance of Mr Cumpston’s response. He says “I believe this to be called off way too early as I was never given reasonable chance to explain my reason nor give an eta on an appropriate time for a hearing.”

[60] I do not accept this proposition. Mr Cumpston was given a reasonable opportunity to explain his non-attendance. His non-attendance on 14 November 2019 was capable of being explained in person at the directions hearing scheduled the next day had Mr Cumpston appeared as required. His representative attended but had no instructions by way of explanation.

[61] Mr Cumpston was given an opportunity to explain his failure to attend the directions hearing on 15 November 2019 by 12 noon 18 November 2019. His email of 12.22pm 18 November 2019 infers there is an explanation but provides none.

[62] The closest Mr Cumpston has come to providing an explanation is his email of 20 November 2019 at 2.55pm to chambers in which he says “I had my phone operational not even 1 business day after the last hearing, my representative has not got back to me”.

[63] Neither of these explanations materially alter my provisionally expressed view on his non-compliance and the grounds on which the employer’s application is made.

[64] Firstly, at the hearing on 14 November 2019 Ms Lethorn (Mr Cumpston’s representative) did indicate that she understood Mr Cumpston had some problem with his mobile phone. The difficulty with accepting this as an acceptable explanation is that Mr Cumpston had been sent both Notices of Listing (which included the requirement that he attend) by email from the Commission and that Ms Lethorn advised the hearing on 15 November 2019 that Mr Cumpston had been advised by her of my requirement that Mr Cumpston attend the adjourned directions hearing and that he had advised his representative by email response that he would not be attending. Even assuming Mr Cumpston’s mobile phone was inoperative for some reason on 14 and 15 November 2019, he was communicating with his representative on 15 November 2019 by email.

[65] Secondly, Mr Cumpston’s apparent dissatisfaction with his representative is not an adequate answer to his apparent non-compliance. I had required Mr Cumpston to attend both directions hearings irrespective of whether he was represented, given that permission had not yet been granted.

[66] In these circumstances, I am satisfied it is appropriate to exercise my discretion under section 399A and section 587 of the FW Act to dismiss Mr Cumpston’s application. His application, having come out of conciliation unresolved, has not been prosecuted by Mr Cumpston to its next stage in a manner that meets his obligations to the Commission and he has not provided adequate explanations for not doing so.

[67] Mr Cumpston’s application under section 394 of the FW Act is dismissed. An order 3 giving effect to this decision will be issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR714451>

 1   [2013] FWCFB 2532; see also Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [19] and Patel v The Tea Centre Pty Ltd[2018] FWC 7814

 2   [2019] FWC 6264

 3   PT714452