Bruce Patrick Butler v Pilbara Iron Company (Services) Pty Ltd
[2021] FWC 6687
•23 DECEMBER 2021
| [2021] FWC 6687 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Bruce Patrick Butler
v
Pilbara Iron Company (Services) Pty Ltd
(U2021/9728)
DEPUTY PRESIDENT BEAUMONT | PERTH, 23 DECEMBER 2021 |
Application for an unfair dismissal remedy – s 587
[1] On 29 October 2021, Mr Bruce Patrick Butler (the Applicant) made an unfair dismissal application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act) on the basis that he had been unfairly dismissed by Pilbara Iron Company (Services) Pty Ltd (Respondent).
[2] However, having failed to comply with directions, the Commission on its own initiative has decided to consider whether to dismiss the Applicant’s unfair dismissal application under s 587(1)(c) of the Act.
Background
[3] The Applicant’s unfair dismissal application is signed by ‘Ms Skye Butler’ ‘Representative of Bruce Butler – appointed by Bruce, also his daughter’. Ms Butler's email address, ‘[email protected]’, is listed as a point of contact for the applicant under ‘Your representative’. Further, the Applicant’s email address is listed in the application as ‘[email protected]’.
[4] The Commission convened a conciliation conference on Wednesday, 1 December 2021, in which the Applicant was represented by Ms Neda Stijacic from the firm of industrial agents, ‘A Whole New Approach’. As the parties were unable to resolve the dispute between them at the conciliation conference, shortly after the conference adjourned the Commission wrote to the parties to encourage the parties to familiarise themselves with the Commission's processes, and that the Commission would contact them to programme the matter. Extracted from the Commission’s correspondence is the following excerpt:
In preparing for your conference/hearing, we suggest that you take some time to familiarise yourselves with the requirements of a formal Commission proceeding and, in particular, that you visit the Commission’s website to gain an understanding of the process (
You should soon hear from the Chambers of the Member of the Commission who has been allocated to deal with this application. The Member may issue directions for the preparation of documents (outline of submissions and witness statements - refer explanation below) and time frames for the filing of those documents and may list the application for a mention (conference) to discuss directions.
[5] On Wednesday, 1 December 2021, by email time stamped 4:17pm, my Chambers sent to several email addresses the directions for the matter, which required the parties to respond to preliminary questions about the programming of next steps. Responses were due by 5:00pm on Monday, 6 December 2021. The email addresses included those that had been provided by the Applicant:
• [email protected]; and
[6] The first email address listed above was of course that of the Applicant’s daughter. The email of 1 December 2021 drew the parties’ attention to ss 587 and 399A of the Act regarding the dismissal of the application.
[7] By Tuesday, 7 December 2021, a response had not been received by the Applicant (First Non-Compliance). Therefore, an email was sent on that same day, time stamped 4:39pm, informing the Applicant that he had been non-compliant with the directions. After providing a copy of the directions that had been sent on 1 December 2021, the email dated 7 December 2021 provided:
Chambers has not yet received a response from the Applicant or any correspondence requesting an extension of time, or reasons for the Applicant’s non-compliance.
If it is the case that the Applicant no longer wishes to proceed with the application, please inform Chambers in writing that you wish to discontinue the application.
Otherwise, the Applicant is directed to write to Chambers explaining their non-compliance and seeking an extension of time in which to provide their response (accompanied with reasons) by 16:00hrs AWST, Wednesday, 8 December 2021.
If no correspondence is received, the matter will be programmed for a non-compliance hearing with directions and a notice of listing being issued on Thursday, 9 December 2021.
[8] The email dated 7 December 2021, was again sent to several email addresses, including those of ‘[email protected]’ and now ‘[email protected]’.
[9] On 8 December 2021, Ms Stijacic withdrew as the Applicant's representative and advised:
We have been instructed that the Applicant and his daughter will continue to pursue the matter.
We anticipate they will provide the required information as per the directions before the required deadline.
[10] As no response was received from the Applicant (Second Non-Compliance), on Thursday, 9 December 2021, by email time stamped 4:30pm, Chambers sent the following email to several email addresses, including those of ‘[email protected]’ and ‘[email protected]’:
Dear Parties
We refer to the attached directions regarding non-compliance sent via email on Tuesday, 7 December 2021, concerning matter U2021/9728 - Mr Bruce Patrick Butler v Rio Tinto Iron Ore.
In light of the Applicant’s failure to provide a reason with his earlier non-compliance by the deadline at 16:00hrs (AWST), Wednesday, 8 December 2021, and to seek an extension of time in which to provide his response (accompanied by reasons), the matter is now listed for a hearing concerning the potential dismissal of the Applicant’s unfair dismissal application pursuant to s 587 of the Act.
Under s 587 of the Fair Work Act 2009 (Cth), the Fair Work Commission may dismiss an application if:
FAIR WORK ACT 2009 - SECT 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.
(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.
As such, the Deputy President directs:
• The Applicant is required to file with Chambers and serve on the other Party:
• written submissions, witness statements, a document list, and any material upon which he wishes to rely relating to why the application should not be dismissed, by any later than 16:00hrs (AWST), Monday, 13 December 2021.
• The Respondent is required to file with Chambers and serve on the other Party:
• written submissions, witness statements, a document list, and any material upon which it wishes to rely concerning s587 of the Act, by no later than 16:00hrs (AWST,) Wednesday, 15 December 2021.
The matter will be determined on the papers unless either party requests a hearing by 10:00hrs (AWST), Thursday, 16 December 2021.
If such a request is made, the matter will be listed for a hearing at 13:00hrs (AWST) Friday, 17 December 2021. A notice of listing accompanies this email.
Should the Applicant prefer to discontinue his application the relevant Form F50 is attached or alternatively the Applicant may simply email Chambers and inform us of his discontinuance.
[11] No response was forthcoming from the Applicant notwithstanding that the email dated 9 December 2021 attached a Notice of Listing setting down the matter for a non-compliance hearing at 1:00pm on Friday, 17 December 2021 (Third Non-Compliance). Therefore, on Wednesday, 15 December 2021, by email time stamped 12:20pm, Chambers issued the following email, again to the email addresses of ‘[email protected]’ and ‘[email protected]’, after having called the Applicant:
Dear Parties
We refer to emails from Chambers dated Wednesday 1 December 2021, Tuesday 7 December 2021, and Thursday 9 December 2021 (see the attached), concerning matter No. U2021/9728 - Mr Bruce Patrick Butler v Rio Tinto Iron Ore.
Chambers has not yet received the Applicant’s submissions, materials, or any reason for the Applicant’s non-compliance, and notes that the matter is listed for a non-compliance hearing at 13:00hrs (AWST), Friday, 17 December 2021.
Chambers telephoned the Applicant this afternoon at 12:12pm (AWST).
The Applicant was informed that as he has not provided any submissions, materials, or any reason for non-compliance, and unless a response is sent to Chambers by 17:00hrs (AWST) this afternoon, the matter will be dealt with on the basis that the Applicant has not submitted any materials regarding his non-compliance. It should be noted that the Deputy President is only able to make a decision based upon the evidence and submissions before her.
[12] By email dated Wednesday, 15 December 2021, time stamped 1:21pm, Chambers received an email from Ms Skye Butler. It is observed that attached to that email in the email chain was an email from Ms Louise Butler dated Tuesday, 14 December 2021, time stamped 8:47pm, to Ms Skye Butler. Ms Louise Butler had forwarded Chambers’ email dated ‘15 December 2021 at 12:30:04pm AWST’ to Ms Skye Butler.
[13] It is evident that there is some confusion about the times and dates on the emails, however that may in part be explained by Ms Skye Butler being overseas when communicating with the Commission.
[14] The email from Ms Skye Butler dated 15 December 2021, can be summarised in the following terms:
a) the non-compliance was due to the Applicant instructing Ms Stijacic to cease acting but he had not told Ms Skye Butler about that arrangement;
b) Ms Butler will now comply with the Commission's directions;
c) Ms Butler had not been receiving correspondence because it had been going to her junk mail while she had been travelling, and the Applicant had not kept her ‘in the loop’; and
d) the urgency of the Applicant's obligation was only drawn to his attention due to the Commission's phone call at 12:12pm on 15 December 2021.
[15] At 2:19pm on 15 December 2021, the Commission wrote to the parties advising that the Applicant had until 9:00am on Thursday, 16 December 2021 to ‘provide material in response to the potential dismissal of his application’. The deadline for the filing of submissions and evidential material passed, and no materials were provided by the Applicant (Fourth Non-Compliance).
[16] At 1:39pm on 16 December 2021, Ms Butler provided materials addressing the merits of the Applicant's claim. The materials provided did not address or provide any further explanation as to the First, Second, Third or Fourth Non-Compliances.
[17] In response to Ms Butler's correspondence, Chambers emailed the parties and encouraged them to ‘review the parties resources page on the Fair Work Commissions[sic] website’; and confirmed that the hearing on 17 December 2021 was to deal with the potential dismissal of the Applicant’s application.
[18] By email dated 16 December 2021 time stamped 5:03pm, Ms Skye Butler emailed the Commission submitting:
a) the materials provided on 16 December 2021 demonstrate an intention to proceed;
b) non-compliance was due to not having a ‘lawyer’;
c) noting an unfamiliarity with the Commission's procedures and asking for the non-compliances to be overlooked ‘to make it a fair process’; and
d) asserting that ‘responses required have been remedied’.
The law
[19] The Commission is empowered to dismiss an unfair dismissal application on the basis that the application has no reasonable prospects of success. These powers to dismiss an application, are set out generally at s 587 of the Act. That section states:
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.
[20] Whenever exercising the power to dismiss an application under s 587, s 578 is relevant. It provides:
578 Matters the FWC must take into account in performing functions etc.
In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
[21] The objects of Part 3-2 are found in s 381 and those for the Act are located at s 3. Whilst not repeated, both have been considered.
[22] It is accepted that there is no legislative or common law requirement pursuant to which the Commission must persevere with an application, in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. 1
[23] However, in these types of applications, one is always guided by the premise that the power to dismiss a substantive application should only be exercised cautiously and sparingly; particularly where, as here, the Applicant has sought orders for relief for his alleged unfair dismissal. 2
[24] To date, the Applicant has not complied with multiple directions of this Commission. This is notwithstanding Chambers contacting the Applicant by use of his designated contact details.
[25] The obligation of all applicants is to prosecute their case in an efficient manner. In doing so all parties must comply with directions set by the Commission for this purpose. Alternatively, as was said in Lopez Aragon v Aegis Safety Pty Ltd, an applicant needs to clearly establish impediments to filing materials in order that a timely extension can potentially be set. 3 It is observed that at no time prior to 15 December 2021 did the Applicant request such an extension.
[26] Whilst an applicant is entitled to have her or his case heard and it is only in extreme circumstances that a party should be shut out from litigating an issue that is fairly arguable, I am satisfied that in all the circumstances the Commission should extinguish the Applicant’s right to have his application heard.
[27] The Applicant’s persistent non-compliance with the directions of this Commission manifests an undeniable reticence to do the required work necessary to prosecute his case. It was not until this Commission called the Applicant that responses from the Applicant were engendered.
[28] While the Applicant subsequently submitted materials for the substantive matter, it is evident that the time was not taken by the Applicant, those representing him, or those who were his points of contact, to appreciate what was asked of him. This therefore required Chambers to issue multiple emails to solicit the appropriate responses. The response engendered was not that which was directed – namely to file submissions, witness statements or other materials regarding the potential dismissal of the application. However, it is noted that the Applicant’s representative, Ms Skye Butler, provided oral submissions relevant to the issue at hearing.
[29] It is not this Commission’s role to continuously prompt parties to prosecute their case. Once an application for an unfair dismissal remedy is submitted, and the contact details of the parties have been provided, the responsibility sits with the parties to monitor communications to their designated point of contact. Furthermore, it is incumbent upon the parties to read those directions and comply with the same. While Ms Skye Butler spoke of filing the substantive materials, these simply had not been asked for.
[30] Ms Skye Butler, on behalf of the Applicant, stated that she was unaware that the Applicant had spoken to his legal representative and advised them they were no longer required without understanding the situation at hand. Ms Butler continued that the Applicant did not understand the processes of the Fair Work Commission and had been undergoing chemotherapy treatment. However, no evidence was provided by the Applicant to demonstrate unfitness during the relevant period.
[31] Ms Skye Butler submitted that she now understood she was required to assist the Applicant with his claim and pull together the documents required to fairly represent him in the matter. She continued that the correspondence from Chambers had been going into her junk mail and as she was not expecting anything from the Fair Work Commission, she had not checked her junk mail. Further, Ms Skye Butler stated that she had been travelling for work in Bangkok and back to America for business purposes and had not been kept in the loop with the action taken or required concerning the matter.
[32] The Commission has previously found, in relation to the explanation that emails were directed to a ‘junk’ folder:
It may be that the numerous FWC e-mails advising Mr Kenney of conference arrangements were regarded as “Spam” or junk mail. Mr Kenney had an obligation to check the e-mail system and an obligation to actively pursue his application. It was his own actions that restricted the communication with the FWC to e-mail arrangements. 4
[33] While Ms Skye Butler speaks to being unaware that correspondence from the Commission would be forthcoming to her, it is not simply the case that the Applicant can abrogate responsibility in this respect when the Form F2 outlined that the contact details for the representative were those of Ms Skye Butler and the contact email for the Applicant was ‘[email protected]’.
[34] Communications from Chambers were sent to both email addresses on most occasions, if not one, and it is evident that on receiving the phone call from Chambers on 15 December 2021, an email was forwarded from the email account of ‘[email protected]’ to the email address of Ms Skye Butler. It was not the case that the emails had not been received, and it sat with the Applicant to ensure the monitoring of those email accounts to ascertain whether correspondence had arrived from this Commission.
[35] While the Commission has sympathy for the circumstances that the Applicant finds himself in, it remained his responsibility to communicate with his daughter that he had disengaged legal representatives and that she had responsibility for the carriage of his case. Whilst Ms Skye Butler contends that the urgency of the Applicant’s obligation was only drawn to his attention due to the Commission’s phone call of 15 December 2021, it is evident in the correspondence from ‘A Whole New Approach’ to this Commission on 8 December 2021, that it had been instructed that the Applicant and his daughter would progress the matter and that it anticipated compliance with the deadline set by the directions.
[36] While there is of course an understanding that some litigants will be challenged by engaging in a new process, the Fair Work Commission has developed its processes premised on the understanding that those who are accessing justice via the Commission will not necessarily be represented. Furthermore, the correspondence that was sent from Chambers regarding the requirement to comply with directions was unequivocal. The Applicant had been provided with clear direction on what was required, the resources available and the timeframe in which materials were to be filed. While Ms Skye Butler spoke of the Applicant’s educational deficiencies and lack of familiarity with the processes of the Commission, it must again be reiterated that the Commission is most appreciative of this and therefore spends the time to ensure the accessibility of its resources, and that its communications are clear and comprehensive.
[37] I am satisfied that in all the circumstances the repeated instances of non-compliance give rise to a finding that the application has no reasonable prospects of success. This is notwithstanding the filing of materials for the substantive application. Such materials were not required in the circumstances, but what was required of the Applicant, was to address his non-compliance with four sets of directions.
[38] The matter has been unnecessarily delayed by the Applicant’s approach to his application and consequently the Respondent is placed in a position where its resources are being unnecessarily depleted as are those of this Commission.
Conclusion
[39] In circumstances where the Applicant has provided multiple reasons for his non-compliance with the directions which have not been accepted, and has been contacted on multiple occasions to encourage compliance, in addition to having been directed to various resources, and was informed of the importance of complying with directions, I have concluded, on balance, that the Applicant has unreasonably failed to comply with directions of this Commission relating to his unfair dismissal application and therefore his application has no reasonable prospects of success.
[40] I am persuaded I should exercise my discretion under s 587(1)(c) and dismiss the Applicant’s unfair dismissal application.
[41] An Order 5 giving effect to this decision will be issued today.
DEPUTY PRESIDENT
Appearances:
Ms. Skye Butler for the Applicant;
Mr. Tom Klassen for the Respondent.
Hearing details:
Perth (Telephone);
December 17;
2021.
Printed by authority of the Commonwealth Government Printer
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1 Peter Viavattene v Health Care Australia[2013] FWCFB 2532 [39].
2 John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925 [31].
3 [2013] FWC 5993 [39].
4 Kenney v Christie Tea Pty Ltd[2014] FWC 448 [10].
5 PR737140.
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