Christopher Lee v Morris Corporation (Aust) Pty Ltd T/A Morris Corporation

[2016] FWC 8602

[2016] FWC 8602

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Lee
v
Morris Corporation (Aust) Pty Ltd T/A Morris Corporation
(U2016/10852)

DEPUTY PRESIDENT CLANCY MELBOURNE, 30 NOVEMBER 2016

Application for relief from unfair dismissal.

[1] On 31 August 2016 Mr Christopher Lee made an application for remedy for unfair dismissal under s.394 of the Fair Work Act (the Act). Mr Lee’s employment had been terminated by Morris Corporation (Aust) Pty Ltd T/A Morris Corporation (Morris Corporation) on 11 August 2016.

[2] The matter was the subject of conciliation, however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Lee was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 14 November 2016.

[4] On 15 November 2016, the Fair Work Commission (the Commission) attempted to telephone Mr Lee regarding his intention to file submissions and a voice message was left requesting that he contact the Commission.

[5] On 15 November 2016, Morris Corporation sent an email to the Commission stating that as Mr Lee failed to comply with the directions to file his material by 14 November 2016, it would seek to have the application dismissed in accordance with ss.399A(1)(b) and 399A(2) of the Act.

[6] On 16 November 2016, Morris Corporation contacted the Commission and was advised that if it wished to make an application to dismiss pursuant to s.399A of the Act, a Form F1 would need to be filed.

[7] On the same day, Morris Corporation sent an email attaching a Form F1 requesting that Mr Lee’s application be dismissed pursuant to s.399A of the Act. This correspondence was forwarded to Mr Lee.

[8] On 16 November 2016, Morris Corporation contacted the Commission to inquire whether it needed to provided anything further with their s.399A application. Morris Corporation was advised that it did not need to provide anything further at that stage.
[9] On 17 November 2016, the Commission made two attempts to contact Mr Lee by telephone. As Mr Lee was not available, messages were left for him to contact the Commission.

[10] Subsequently, a letter was sent to Mr Lee on 17 November 2016 advising him of the s.399A application made by Morris Corporation and giving him until close of business on 24 November 2016 to provide reasons as to why his application should not be dismissed. Morris Corporation was copied in on this correspondence.

[11] Mr Lee sent an email to the Commission on 17 November 2016, attaching a witness statement and apologising for failing to meet the deadline or return the calls of the Commission. Mr Lee also indicated his willingness to respond to the s.399A application in further submissions to be filed by 24 November 2016.

[12] On 24 November 2016, Mr Lee sent an email to the Commission advising that due to recent personal circumstances which caused him extreme emotional distress and affected his financial situation, he was unable to retain prior legal representation and has been required to undertake research and prepare evidence on his own. Mr Lee further stated that because of his current family circumstances, he had not been contactable on the landline telephone number provided to the Commission in his F2 Application form.

[13] In his submissions, Mr Lee also claimed as a mitigating circumstance the fact that Morris Corporation did not provide the Form F3 – Employer Response to Unfair Dismissal Application within the timeframe requested by the Commission. Various email correspondence was received from both Morris Corporation and Mr Lee between 25 November and 28 November 2016 in relation to this contention.

Consideration

[14] On application by an employer the Commission has the discretion to dismiss an unfair dismissal application because there has been unreasonable non compliance with directions of the Commission. 1

[15] In the Explanatory Memorandum to the Act it is said that the intention of this provision was “to address the small proportion of applicants who may pursue claims in an improper and unreasonable manner. ....In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant.” 2

[16] The role of case management was discussed by the Full Bench of the Commission in Ghalloub v Aon Risk Services Australia Limited 3.

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

[18] While not an exhaustive list of matters that may be considered, I will adopt the approach of the Full Bench in this matter in deciding whether to exercise my discretion to dismiss the application.

[19] Mr Lee did not comply with the Commission’s directions within time and did not seek an extension of time prior to the compliance date. However, he did not subsequently ignore his obligation. Mr Lee sent an email to the Commission on 17 November 2016 providing a witness statement, and further responded to the s.399A application by 24 November 2016 as required, providing reasons for his non compliance.

[20] This is not an application in which Mr Lee has a history of non compliance and further, Mr Lee has not indicated an unwillingness to have his matter ready for hearing within an acceptable period of time. He filed witness evidence sufficiently shortly after the compliance date. In these particular circumstances, I am not persuaded to dismiss Mr Lee’s unfair dismissal application. An order giving effect to this decision will be issued today and the matter will proceed to hearing on 22 December 2016.

DEPUTY PRESIDENT

 1 S.399A of the Fair Work Act 2009.

 2   Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161-163].

 3   PR956665.

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