Clinton MacDonald v Black Ivory Pty Ltd T/A Ivory Lounge Bar

[2015] FWC 658

[2015] FWC 658

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Clinton MacDonald
v
Black Ivory Pty Ltd T/A Ivory Lounge Bar
(U2014/14320)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 27 JANUARY 2015

Application for relief from unfair dismissal.

[1] Mr Clinton Macdonald alleged that his dismissal by Black Ivory Pty Ltd was unfair. Black Ivory alleged that Mr Macdonald resigned his employment.

[2] On 24 November 2014, directions were issued to Mr Macdonald to file material in support of his application by no later than noon on 15 December 2014. The directions advised the parties that they are required to comply with the directions.

[3] Mr Macdonald did not comply with these directions and no application for an extension of time was made before the compliance date. Mr Macdonald filed material on 17 December 2014.

[4] On 18 December 2014, Black Ivory sent an email to the Commission seeking to have Mr Macdonald’s application dismissed under s.399A(1)(b). That application was not in the proper form. On 9 January 2015, Mr Macdonald was provided with a copy of the application and given until 16 January 2015 to respond.

[5] In support of its application to dismiss Black Ivory relied upon the failure of Mr Macdonald to:

● file his material on time;
● provide an outline of submissions as he merely responded to Black Ivory’s submissions rather than filing material to support his claim that he had been unfairly dismissed; and
● establish that he had been dismissed.

[6] Black Ivory submitted that Mr Macdonald was able to obtain an advantage by being able to use its material as a guide.

Consideration

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

[8] The Explanatory Memorandum 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

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

[10] 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.

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

Conclusion

[12] I have decided not to dismiss Mr Macdonald’s application. These are my reasons. Mr Macdonald submitted that he had filed a hard copy of his documents at the Hobart Registry. I cannot find any record of this in the Commission’s records. Mr Macdonald accepted that he did not provide a copy of that material to Black Ivory because he was unaware of Commission procedures.

[13] Whether Mr Macdonald was dismissed or resigned is central to this case. Mr Macdonald has now filed material in relation to this as has Black Ivory.

[14] While Mr Macdonald should have filed his material on time or sought an extension of time to file this is not a situation where Mr Macdonald has been unresponsive to the Commission’s directions.

[15] While Mr Macdonald has not filed submissions as such, his witness statements are in fact a combination of evidence and submissions. Unrepresented applicants often confuse evidence with submissions. That is not a reason to dismiss the application.

[16] I do not accept that Mr Macdonald gained any advantage by filing late. The directions are structured to give each party a chance to respond to the evidence and submissions of the other party.

[17] I am unable to conclude, as was submitted by Black Ivory, that on his own evidence Mr Macdonald was not dismissed. The facts in this matter have not been tested. Further a refusal to accept alternative employment is not relevant to whether Mr Macdonald was dismissed or not.

[18] Mr Macdonald’s application will therefore be heard and determined in accordance with the current directions.

DEPUTY PRESIDENT

 1 Section 399A of the Fair Work Act 2009.

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

 3   PR 95665.

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