Cameron Lever v Defence Housing Australia

[2020] FWC 3077

[2020] FWC 3077

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cameron Lever
v
Defence Housing Australia
(U2019/13534)

DEPUTY PRESIDENT KOVACIC CANBERRA, 12 JUNE 2020

Application for an unfair dismissal remedy – application under s.399A(1)(b) of the Fair Work Act 2009 to dismiss the application as a result of the Applicant’s unreasonable failure to comply with the Commission’s Directions – unfair dismissal application dismissed.

[1] On 4 December 2019 Mr Cameron Lever (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) alleging that he had been unfairly dismissed by Defence Housing Australia (DHA – the Respondent) on 25 October 2019.

[2] In its Form F3 – Employer response to unfair dismissal claim DHA raised a jurisdictional objection, contending that the application had been lodged more than 21 days after the dismissal took effect, i.e. outside the 21 day timeframe specified in s.394(2)(a) of the Act. Conciliation did not occur as DHA requested that its jurisdictional objection being determined in the first instance. Mr Lever’s unfair dismissal application was filed 19 days outside the timeframe specified in the Act.

[3] For the reasons set out below, I am satisfied that Mr Lever’s failure to comply with the Commission’s Directions to be unreasonable and that his unfair dismissal application should be dismissed under s.399A(1)(b) of the Act.

Background

[4] Mr Lever’s unfair dismissal application was the subject of a telephone mention and/or directions hearing on 26 February 2020. Mr Lever appeared on his own behalf at that telephone hearing, while Ms Rosemary Patti appeared with permission for DHA. Directions regarding DHA’s jurisdictional objection were issued on 27 February 2020. Those Directions required Mr Lever to file his outline of submissions and evidentiary material regarding the Respondent’s jurisdictional objection by close of business on Wednesday, 18 March 2020. The jurisdictional objection was listed for hearing on 1 May 2020. Mr Lever has to date not filed any materials in accordance with these Directions.

[5] On 27 March 2019 DHA made an application under s.399A(1)(b) of the Act that Mr Lever’s unfair dismissal application be dismissed. Developments post the telephone mention and/or directions hearing are summarised in the following correspondence which was sent by the Commission to Mr Lever on 23 April 2020:

“Dear Mr Lever

U2019/13534 - Lever, Cameron v Defence Housing Australia

As you are aware, on 27 March 2020 Defence Housing Australia (DHA) made an application under s.399A of the Fair Work Act 2009 (the Act) that your unfair dismissal application (U2019/13534) be dismissed (a copy of DHA’s application is included in the correspondence for ease of reference).

A Notice of Listing regarding DHA’s application was emailed to you on 31 March 2020, with the application listed for a telephone hearing at 10:00am this morning. Despite several attempts, my Associate was unable to contact you for today’s telephone hearing though your brother (Mr Ben Lever) did answer your mobile phone at one stage and advised that you were unavailable and that he could pass on a message. The telephone hearing went ahead as scheduled in your absence. Attached to this correspondence for your information is a copy of the audio recording of the hearing and DHA’s written submissions in support of its application (those submissions were copied to you by DHA on 22 April 2020).

For your information, s.399A of the Act 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.

My purpose in writing to you is to provide you with an opportunity to make any written submissions you may wish to in respect of DHA’s application. Any submissions you may wish to provide in respect of the application should be provided in writing and forwarded to [email protected] by close of business on Thursday, 30 April 2020. Please be aware that in the absence of receiving any written submissions from you, I will proceed to determine DHA’s application on the basis of the materials currently before the Fair Work Commission (the Commission). Should you provide written submissions, I will provide DHA a week to provide any submissions in reply that it may wish to.

In preparing any submissions you may wish to make regarding DHA’s application you may find the following chronology of key events since the telephone mention and/or directions of 26 February 2020 to be of assistance.

•  27 February 2020 – the Commission issued Directions and a Notice of Listing regarding DHA’s jurisdictional objection to your unfair dismissal application. The Directions required you to file with the Commission and serve on DHA an outline of submissions and any evidentiary material (witness statements and other documentary material) on which you intended to rely by close of business on Wednesday, 18 March 2020. You filed no materials by that date. DHA’s jurisdictional objection was listed for hearing on 1 May 2020.

•  20 March 2020 – the Commission wrote to you as follows:

“Directions were issued on 27 February 2020 requiring you to file materials in support of your application by 18 March 2020.

Accordingly, the Deputy President has advised that if you do not provide your materials and/or evidence in support of your request for an extension of time in which to file said materials by COB Monday 23 March 2020 he will list the matter for a non-compliance hearing.”

•  23 March 2020 – you emailed the Commission as follows:

“Do [sic] to the current global crisis and the restrictions we are facing, I will not be able to provide and material or evidence at this point in time.

I would recommend moving the hearing and timings to a later date, virus depending.”

•  23 March 2020 – the Commission responded to your above email requesting further information and material as to how the COVID pandemic was affecting your ability to provide submissions and evidentiary material. No response to the Commission’s email has been received.

•  27 March 2020 – as previously mentioned, DHA filed its application under s.399A of the Act with the Commission.

•  31 March 2020 – the Commission emailed you in the following terms:

“On 23 March 2020 the Commission wrote to you requesting further information regarding how the COVID pandemic is affecting your ability to provide submissions and evidentiary material (see attached). No response has been received and at present, you have failed to comply with the directions issued on 27 February 2020 requiring you to file materials in support of your application by 18 March 2020.

The Deputy President requests that you respond to the attached email of 23 March 2020 as soon as possible, if not before by Thursday, 2 April 2020.

Please alo note that the Respondent has made a s.399A application to dismiss your unfair dismissal application. The Deputy President is intending on listing the Respondent’s application for a telephone hearing at 10am Thursday, 23 April 2020. A notice of listing from chambers confirming this listing date [sic]shortly.”

Again, no response to the Commission’s email has been received. A Notice of Listing regarding DHA’s s.399A application was issued later that day.

•  23 April 2020 – DHA’s s.399A application was heard by the Commission.

Alternatively, if you no longer wish to proceed with your unfair dismissal application, please complete the blank Form F50 – Notice of discontinuance attached to this email and return it to the Commission.” (Emphasis as per original)

[6] On 23 April 2020 (i.e. after the hearing of DHA’s s.399A application) Mr Lever sent an email to my Associate which read as follows:

“I have just been informed that I had a call from you this morning and subsequently missed the appointment.

Unfortunately this was due to taking my father to his medical appointment for kemo due to his cancer treatment. 

Due the the current situation, family health issues, unemployment and the hardship I am currently experiencing, I can not proceed further with this matter at this point in time. 

It is taking too much of a physical and mental tole on me and my family. 

Please action accordingly but I will not be available for the foreseeable future.” (Grammatical errors as per original)

[7] In circumstances where Mr Lever did not respond to the Commission’s letter of 23 April 2020, the Commission wrote to him again on 6 May 2020 in the following terms:

“Dear Mr Lever

U2019/13534 - Lever, Cameron v Defence Housing Australia

I wrote to you on 23 April 2020 to provide you with the opportunity to provide any submissions you may wish to make in respect of Defence Housing Australia’s (DHA’s) application under s.399A of the Fair Work Act 2009 (Cth) that your unfair dismissal application be dismissed. A copy of that letter is attached for ease of reference. The letter asked that you provide any submissions you may wish to make in respect of DHA’s application by close of business on 30 April 2020.

To date, the Fair Work Commission (the Commission) has not received any submissions from you regarding DHA’s application. However, on 23 April 2020 you emailed my chambers advising among other things … that you were unable to attend that morning’s telephone hearing regarding DHA’s application because you had to take your father to a medical appointment. No documentation was provided to substantiate that reason.

Against that background, I write to provide you a final opportunity to provide any submissions you may wish to make regarding DHA’s application. Any submissions you wish to make should be forwarded to [email protected] by no later than close of business Monday, 11 May 2020. In the absence of receiving any submissions from you regarding DHA’s application, the matter will be determined having regard to the material currently before the Commission. Should I decide to grant DHA’s application, your unfair dismissal application will be dismissed.

As previously advised, if you no longer wish to proceed with your unfair dismissal application, please complete the blank Form F50 – Notice of discontinuance attached to this correspondence and return it to the Commission. Alternatively, you can simply email my chambers at the above address advising that you wish to discontinue your unfair dismissal application.” (Underlining as per original)

[8] Again, Mr Lever has not responded to the Commission’s letter.

[9] In other developments, DHA emailed the Commission on both 6 and 12 May 2020 requesting that the Commission determine its application under s.399A of the Act.

[10] As noted in the Commission’s correspondence to Mr Lever of 23 April 2020, the Respondent’s application under s.399A of the Act was the subject of a telephone hearing on 23 April 2020. In advance of that hearing, DHA provided written submissions in support of its application.

DHA’s submissions in support of its application under s.399A of the Act

[11] DHA submitted that Mr Lever had not demonstrated any willingness to comply with the Commission’s Directions of 26 February 2020 or to prosecute his application, adding that since filing and serving its application under s.399A of the Act its representative had not heard anything from Mr Lever. DHA contended that Mr Lever’s actions, or inactions, were demonstrative of his attitude and willingness to progress his application. In summary, DHA posited that in the absence of any reasonable explanation, or any explanation at all, from Mr Lever regarding his non-compliance with the abovementioned Directions his unfair dismissal application should be dismissed pursuant to s 399A(1)(b) of the Act.

[12] In support of its submissions DHA drew on the decision in Mr Alex Brown v The Trustee for Belgravia Leisure Unit Trust T/A Ferny Hills Swimming Pool (Brown) 1. As to Mr Lever’s email of 23 March 2020 to the Commission in which he stated that he was unable to provide any material or evidence to the Commission as a result of the COVID-19 crisis, DHA relied on the decisions in Plaintiff S111A/2018 v Minister for Home Affairs (No 2)2 and Reilly v Australia and New Zealand Banking Group Ltd3 to contend that the COVID-19 pandemic was not an adequate excuse for Mr Lever’s non-compliance with the Commission’s Directions of 27 February 2020. In this regard DHA also noted that the Commission also allowed Mr Lever an additional 5 days (from 18 March 2020 to 23 March 2020) to file his material or provide a more fulsome reason as to why he had not complied with the Directions.

[13] At the hearing, DHA posited that Mr Lever’s non-attendance was demonstrative of why the Commission should exercise its discretion under s.399A of the Act and dismiss Mr Lever’s unfair dismissal application. DHA further submitted that Mr Lever’s non-attendance at the hearing was unreasonable and showed his unwillingness to comply with the Commission’s directions and orders.

Mr Lever’s response to DHA’s application under s.399A of the Act

[14] As previously mentioned, Mr Lever failed to attend the hearing on 23 April 2020 regarding DHA’s application under s.399A of the Act and did not provided any submissions regarding that application despite the Commission inviting him to do so on 23 April and 6 May 2020.

Consideration of the issues

[15] Deputy President Asbury in Brown observed as follows in respect of s.399A of the Act:

“[39] The power under s. 399A of the Act to dismiss an application is discretionary. The exercise of the power is predicated on the unreasonableness of the conduct of an applicant 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.” 4

[16] The Deputy President also noted in Brown that:

“[43] Parties in proceedings before the Commission should comply with Directions of the Commission and should seek any extension in a timely manner in advance of the date by which compliance is required.” 5

[17] In this case Mr Lever has failed to comply with the Directions issued by the Commission on 27 February 2020 and has also failed to comply with the Commission’s requests of 20 and 31 March and 23 April 2020 to file his submissions and evidentiary material in respect of DHA’s jurisdictional objection. Further, Mr Lever did not request an extension of time to file his material prior to the due date despite the Commission’s Directions clearly stating that any such request “must be made prior to the hearing/compliance date and be in writing and based on substantial grounds” (emphasis as per original). While Mr Lever did email the Commission on 23 March 2020 stating that he was unable to provide any material or evidence to the Commission as a result of the COVID-19 pandemic, he failed to respond to the Commission’s request of the same day to provide further information and material setting out how the pandemic was affecting his ability to file his materials with the Commission.

[18] I also note that Mr Lever did not attend the hearing on 23 April 2020 regarding DHA’s application under s.399A of the Act and has failed to file any submissions regarding that application as requested in the Commission’s correspondence of 23 April and 6 May 2020. As to the reason for Mr Lever’s non-attendance at the hearing on 23 April, as noted above Mr Lever emailed the Commission after the hearing to advise that he had been unable to attend due to having to take his father to a medical appointment. However, Mr Lever has provided no documentation to substantiate that reason.

[19] It is clear from the above that Mr Lever has failed to prosecute his unfair dismissal application despite being given numerous opportunities to do so by the Commission.

[20] With particular regard to DHA’s application, I consider Mr Lever’s failure to comply with the Directions of 27 February 2020 and subsequent requests by the Commission to file any materials on which he intends to rely regarding the Respondent’s jurisdictional objection to be unreasonable. Further, I am satisfied that in the circumstances it is appropriate to exercise the discretion afforded the Commission by s.399A of the Act and dismiss Mr Lever’s unfair dismissal application under s.399A(1)(b) of the Act on the basis that he has unreasonably failed to comply with the Commission’s Directions regarding his unfair dismissal application. An Order to that effect will be issued in conjunction with this decision.

Appearances:

R. Patti and F. Choi for Defence Housing Australia.

Telephone hearing details:

Canberra and Sydney
2020
April 23.

Printed by authority of the Commonwealth Government Printer

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 1   [2019] FWC 2181

 2 [2020] FCA 499

 3 [2020] FCA 436

 4   [2019] FWC 2181 at [39]

 5   Ibid at [43]