Carlos Neves v Cushman & Wakefield

[2020] FWC 3802

[2020] FWC 3802

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Carlos Neves
v
Cushman & Wakefield
(U2020/5377)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 20 JULY 2020

Application for an unfair dismissal remedy – non-responsive applicant – failure to attend hearings - failure to comply with directions – section 399A Fair Work Act 2009 – application dismissed

[1] On 17 July 2020, during a hearing of this matter conducted by telephone, I delivered an ex tempore decision dismissing Carols Neves’ application for an unfair dismissal remedy. I did so on the employer’s application pursuant to section 399A of the Fair Work Act 2009 (FW Act). These are my reasons for that decision.

Factual background

[2] Carlos Neves (Mr Neves) lodged an application for an unfair dismissal remedy with the Commission on 21 April 2020.

[3] Cushman & Wakefield (the Respondent) served a Form F3, Employer Response on Mr Neves and the Commission on 1 May 2020.

[4] The matter was listed for conciliation conferences before a Commission-appointed conciliator on 2 June 2020, 17 June 2020 and 2 July 2020. On each occasion Mr Neves did not answer calls to his listed telephone number at the time of the conference. The Respondent made itself available on each occasion.

[5] Following the aborted conference on 17 June 2020, Mr Neves emailed the Commission requesting a call back outside business hours as he was unavailable due to starting a new job. A Commission client services officer left a voicemail for Mr Neves informing him that the Commission does not operate outside of business hours and sought his availability for a third attempt at conciliation on 2 July 2020. Mr Neves did not reply and has not otherwise contacted the Commission since.

[6] Following the third unsuccessful attempt at conciliation the matter was allocated to me on 2 July 2020 for hearing and determination. I listed the matter for a directions hearing on 15 July 2020 at 11:00 am (ACST). This listing was communicated by a notice of listing sent (by email) to Mr Neves and the Respondent on 7 July 2020.

[7] In-house representatives of the Respondent attended the directions hearing as per the notice of listing. Mr Neves did not dial-in. My Chambers attempted to contact Mr Neves on his listed mobile telephone number but was unable to reach him.

[8] At the directions hearing, the Respondent made an oral application under section 399A of the FW Act for the Commission to dismiss Mr Neves’ unfair dismissal application due to non-responsiveness.

[9] On 15 July 2020 I issued directions which required the Respondent to formalise their section 399A application by lodging the appropriate form. I also directed Mr Neves to file submissions in reply as to why his application should not be so dismissed, along with directions requiring an explanation for non-attendance at listed conciliations and the directions hearing. I also directed that Mr Neve attend the further hearing scheduled for 17 July 2020.

[10] On 15 July 2020, and in compliance with my directions, the Respondent lodged a Form F1 which formalised their section 399A application and served a copy on Mr Neves. Mr Neves did not file submissions or explanations as directed nor otherwise communicate with the Commission.

[11] The matter (including the employer’s section 399A application) came before me again on 17 July 2020. The Respondent attended as per the notice of listing. Mr Neves did not attend. Multiple attempts by my Chambers to contact Mr Neves on his listed telephone number did not secure a response. The Respondent maintained their section 399A application.

[12] Upon considering the matter, I determined that the requirements of section 399A had been made out and that it was appropriate to dismiss Mr Neves’ unfair dismissal application for failure to comply with directions and for failure to actively prosecute his claim. I made an Order in those terms with immediate effect.

Relevant statutory provisions

[13] Section 399A of the FW 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.”

Consideration

[14] Mr Neves has twice failed to attend hearings listed before myself. He has also failed to comply with directions to provide an explanation for his non-attendance. Sub-sections 399A(1)(a) and (b) are satisfied. The Respondent has made an application to dismiss Mr Neves’ application, satisfying section 399A(2).

[15] It is well-established that an applicant has an obligation to comply with directions of the Commission and actively and attentively prosecute their claim. There are minimum disciplines associated with invoking a statutory jurisdiction and litigating a claim in a quasi-judicial tribunal. Invoking the Commission’s jurisdiction is neither cost nor consequence free; doing so puts a responding party (in this instance, the employer) to time, cost and expense in defending its position. It also utilises the services of a publicly funded tribunal whose members and staff have statutory obligations to conduct the institution’s business fairly and efficiently having regard to the collective interests of applicants and respondents. One such discipline is to comply with directions in advance of hearings or, at the very minimum, provide explanations or seek timely extensions should compliance not be possible.

[16] In Peter Viavattene v Health Care Australia, the Full Bench stated:

“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

[17] It is a significant matter to dismiss an application that is otherwise within jurisdiction without a merits hearing. 2 However, parliament has underscored the importance of actively and attentively prosecuting one’s claim by empowering the Commission to dismiss applications of its own motion (section 587) or to do so for specific non-compliance reasons on application by a respondent employer (section 399A).

[18] 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.” 3

[19] I am satisfied, in light of Mr Neves’ non-responsiveness and non-compliance with directions coupled with prejudice arising to the employer in defending an unfair dismissal claim that is not being actively prosecuted to a minimum required level, that it is appropriate to dismiss the application.

[20] Accordingly, Mr Neves’ application is dismissed pursuant to section 399A of the FW Act. An Order 4 to this effect is issued in conjunction with the publication of this Decision.

DEPUTY PRESIDENT

Appearances:

M Luddington and S Gonzalez, for the Respondent.
No appearance by the Applicant.

Hearing details:

2020.
Adelaide (by telephone)
July, 17.

Printed by authority of the Commonwealth Government Printer

<PR721132>

 1   [2013] FWCFB 2532, [39]; see also Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [19] and Patel v The Tea Centre Pty Ltd[2018] FWC 7814

 2   Raschilla v Ausino West Pty Ltd ATF The Supercrane Unit Trust T/A Supercrane Engineered Lifting Technology[2017] FWCFB 5952

 3   [2019] FWC 6264

 4   PR721133