Brent Alley v Avalon Services (Qld) Pty Ltd T/A BP Beachmere

[2014] FWC 6366

[2014] FWC 6366

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brent Alley
v
Avalon Services (Qld) Pty Ltd T/A BP Beachmere
(U2014/1800)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 12 SEPTEMBER 2014

Application for relief from unfair dismissal.

[1] Mr Brent Alley alleged that the termination of his employment by Avalon Services (Qld) Pty Ltd was unfair. The matter did not resolve at conciliation and directions were issued to the parties on 11 July 2014.

[2] Relevantly for this decision Mr Alley was required to file his evidence and submissions by noon on 4 August 2014. Mr Alley did not comply with that direction and did not respond to telephone messages left by the Fair Work Commission staff about his overdue submissions.

[3] On 6 August 2014, Mr Alley’s wife telephoned the Commission asking for an extension of time and she was advised to put the request in writing. That request was made on 7 August 2014 and Mr Alley advised that Legal Aid had not finalised processing his application for legal assistance. Avalon Services opposed that request and asked that Mr Alley be asked to provide proof of his application for Legal Aid.

[4] On 7 August 2014, Mr Alley provided a copy of a Legal Aid application form however that was not a copy of an application completed by Mr Alley.

[5] Further directions were issued on 8 August 2014 which required Mr Alley to file his material by 13 August 2014.

[6] On 12 August 2014, Mr Alley advised that he was still awaiting advice from Legal Aid.

[7] On 14 August 2014, Avalon Services submitted that it should not be required to comply with the directions while Mr Alley was non compliant and submitted that Mr Alley should be asked to show cause why the matter should not be dismissed due to lack of prosecution.

[8] Mr Alley’s application was listed for a non compliance conference/hearing on 22 August 2014.

[9] At the non compliance hearing Mr Alley advised that Legal Aid had declined to assist him and apart from that he had no other reason for his failure to comply. Mr Alley did say that he did not understand what was required of him by the directions. Avalon Services submitted that the matter should be dismissed because Mr Alley’s explanation was not sufficient and that Mr Alley had failed to advise the Commission or Avalon Services of his inability to comply with directions. Avalon Services submitted that he had been given ample opportunity to comply and the matter should be dismissed.

[10] On 22 August 2014, Avalon Services filed an application to dismiss Mr Alley’s claim for non-compliance with directions 1 of the Commission. In that application Avalon Services set out the history of Mr Alley’s non compliance and submitted that “the Fair Work Act seeks a ‘fair go all round’. To allow this flagrant disregard of the orders of the Commission by the applicant puts the respondent employer at a clear disadvantage and brings into question the force of s399A of the Act.”

[11] Mr Alley was provided with a copy of that application and was asked to provide submissions, evidence and any documentary material in opposition to the application to dismiss by close of business on 1 September 2014.

[12] On 31 August 2014, Mr Alley filed an application for directions on procedure on the grounds that he did not know how to go about his claim. He also filed a notification under s.777(1)(b) of the Act. It is not clear why Mr Alley filed the latter application as it is not relevant to unfair dismissal applications.

[13] On 2 September 2014, Avalon Services responded to Mr Alley’s material and pressed its application to dismiss stating that the material filed was not responsive to the directions issued on 22 August 2014. It submitted that “to allow the matter to proceed after his total disregard of directions and orders would render significant injustice to the Respondent and create a most unsatisfactory precedent.” A further email was sent by Avalon Services on 3 September 2014 in support of its application to dismiss.

[14] On 4 September 2014, Mr Alley filed his material in support of his unfair dismissal application.

[15] On 5 September 2014, Avalon Services sent an email seeking a ruling on its application.

[16] The parties agreed that the application to dismiss could be dealt with on the papers.

[17] There is no factual dispute between the parties. Mr Alley does not dispute that he has not complied with the directions of the Commission and he does not dispute the history of his non compliance set on in the application of Avalon Services.

[18] On application by an employer the Commission has the discretion to dismiss an application because there has been non compliance with directions of the Commission. 2

[19] The role of case management was discussed by the Full Bench in Ghalloub v Anon Riske Services Australia Limited 3.

[20] In summary that decision 4 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; and
● continuing non compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.

[21] While not an exhaustive lists of matters that may be considered, I will adopt the approach of the Full Bench in this matter.

[22] I have had regard to the submissions of Avalon Services and I accept its submission that Mr Alley, apart from advising that he did not understand what was required of him, has not responded to the direction to file material in response to the s.399A application.

[23] I accept the submissions that failure to comply with directions is a serious matter. Parties who seek legal assistance, be it from Legal Aid or other bodies, are not excused from their obligations. In those circumstances a party should, prior to the compliance date, write to the Commission and the other party, advising of his or her particular difficulties and ask for an extension of time.

[24] Mr Alley is unrepresented in this matter and while I accept that he may not have understood what was required of him, he did not access any of the information on the Commission’s website nor contact his case manager to seek assistance. These matters weigh in favour of Avalon Services’ application.

[25] However Mr Alley has now filed material in support of his application. While the hearing has been delayed it has only been delayed by one month. Avalon Services has not pointed to any additional prejudice it will suffer because of this delay. In any event, if Mr Alley’s conduct has caused Avalon Services to incur additional costs, Avalon Services is able to apply for costs. 5

[26] This is not a case where Mr Alley has been unresponsive. He has responded to the Commission albeit on one occasion after the compliance dates; he attended the non compliance hearing and he has now complied with the directions of the Commission to file his material.

[27] While I am not able to assess the strengths of Mr Alley’s case it is not on its face unarguable.

[28] I am therefore not prepared to exercise my discretion to dismiss Mr Alley’s application and therefore Avalon Services’ s.399A application is dismissed.

[29] Mr Alley’s application will now proceed to hearing in accordance with the directions issued on 22 August 2014.

DEPUTY PRESIDENT

 1 See s.399A of the Fair Work Act 2009.

 2   Ibid.

 3   [2005] AIRC 238, PR95665.

 4   Ibid.

 5 See s.400A of the Fair Work Act 2009.

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