Costello v Queensland Rail Transit Authority

[2016] FWC 2689

[2016] FWC 2689

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Jason Costello
v
Queensland Rail Transit Authority T/A Queensland Rail
(U2015/16885)
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 28 APRIL 2016
Application for relief from unfair dismissal.

[1]        Mr Jason Costello alleged that the termination of his employment by Queensland Rail

Transit Authority was unfair.

[2]        On 1 March 2016, directions were issued to Mr Costello to file material in support of

his application. That material was due on 21 March 2016.

[3]        On 16 March 2016, Mr Costello sent an email requesting an extension of time to file

his material. Mr Costello was asked to advise how long he was requesting so that his

application for an extension of time could be considered.

[4]        On 21 March 2016, Mr Costello advised that he sought a six month extension.

[5]        On 22 March 2016, Queensland Rail wrote noting Mr Costello’s non-compliance and

said that there were “grounds for the Fair Work Commission to strike out this matter” and

they sought such a determination. Queensland Rail were advised that if they wished to make

such an application they needed to make the application on the appropriate form.

[6]        On 22 March 2016, Queensland Rail lodged a s.587 application to have Mr Costello’s

application dismissed because he was in default of directions. On 31 March 2016, Mr

Costello was provided with a copy of the application and asked to respond by 14 April 2016.

[7]        Mr Costello sent an email on 31 March 2016 which did not address the issues raised in

Queensland Rail’s application. Mr Costello submitted that he was not permitted access to his

workplace which was making it difficult for him to obtain witness evidence and build his

case. He submitted that it was taking time to prepare his case and he had to balance this with

unemployment, trying to be employable and raising a family which he was finding stressful.

He said he was in contact with the Ombudsman. He asked that the Commission contact the

Ombudsman on his behalf. He said there should be an unlimited timeframe or at least until an

independent ombudsman gathers the information without interference to determine the facts.

He again sought a six month extension to file his material.
[2016] FWC 2689

[8]        On 31 March 2016, new directions were issued requiring Mr Costello to file his

material by 14 April 2016.

[9]        On 4 April 2016, Mr Costello having received the notice of listing with the revised

direction said he was researching his case and sought direction as to “how to locate sections

that may help [him] outline historical cases.” Mr Costello was provided with assistance with

locating decisions on the website.

[10]      On 6 April 2016, Mr Costello was advised that his request for a six month

adjournment had been rejected.

[11]      On 6 April 2016, Mr Costello again requested a six month adjournment. He attached a

copy of emails of correspondence with the Queensland Ombudsman.

[12]      On 13 April 2016, Queensland Rail filed submissions in support of its application. In

those submissions Queensland Rail relied on both s.399A and s.587 of the Fair Work Act

2009.

[13]      Queensland Rail’s primary submission is that Mr Costello’s claim should be dismissed

because he had unreasonably failed to comply with two sets of directions. It further submitted

that because Mr Costello has stated that he will not in the foreseeable future be able to

prosecute his claim and provide evidence should give rise to a finding that his application had

no reasonable prospects of success. Queensland Rail submitted that a long delay would

prejudice it. It submitted that they will need to call multiple witnesses and their ability to

recall matters will be limited if there is a lengthy delay.

[14]      Mr Costello did not comply with the directions issued for him to file his material by 14

April 2016.

Mr Costello’s adjournment request

[15]      Mr Costello was advised that his adjournment request had been rejected. Mr Costello

has not provided any compelling reasons why he is not able to prepare his case in the time

normally provided to parties. If there were a delay of six months, witnesses’ ability to recall

events that occurred over 12 months ago will be seriously compromised. I accept Queensland

Rail’s submission that it would be prejudiced.

[16]      That Mr Costello is trying to balance his family and other responsibilities is not

unusual. That he does not have access to his previous workplace is not unusual. That he has

lodged a complaint with another body is also not unusual. That he is unrepresented is not

unusual. There is a significant amount of material on the Commission’s website to assist

unrepresented parties. But in the end, it is Mr Costello’s responsibility to prepare his material

in support of his case. He is required to do so in accordance with the directions.

[2016] FWC 2689

Consideration

[17]      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

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the Commission.

[18]      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

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where there is an unreasonable act or omission by the applicant.”

[19]      The role of case management was discussed by the Full Bench in Ghalloub v Aon Risk

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Services Australia Limited .

[20]      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.

[21]      While not an exhaustive lists 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.

[22]      I am satisfied that the Mr Costello’s failure to comply with directions is unreasonable.

Mr Costello’s application for a six month adjournment was not approved and he was advised

of this on 6 April 2016. Mr Costello has been aware since 22 March 2016 that Queensland

Rail was seeking the dismissal of his application because he failed to comply with directions.

Further Mr Costello was provided with an extension of time to file his material and he did not

comply with that direction.
[2016] FWC 2689

[23]      I am not satisfied that Mr Costello’s case has no reasonable prospects of success. I am

not satisfied that his failure to comply with the directions means that his case is bound to fail.

[24] However the decision to dismiss an application under s.399A is discretionary. Mr

Costello is self-represented. He has not simply ignored the Commission. He had responded

albeit at times not in a clear manner. I am not satisfied that he has shown an intention not to

prosecute his claim. I am not prepared to dismiss Mr Costello’s application at this time.

[25]      However I accept the submissions of Queensland Rail that delay in this matter will

impact negatively on its ability to defend this claim. Accordingly I propose to issue directions

for Mr Costello to file his material within 14 days of this decision. This will mean that Mr

Costello will have had over two months to prepare his case. If Mr Costello does not comply

with these directions then his application will be dismissed without further notice to him. If

there are other reasons for Mr Costello to seek a further extension, an application will need to

be based on reasons and be supported by evidence.

[26] If Mr Costello complies with the directions then the s.587 and s.399A applications will

be dismissed.

DEPUTY PRESIDENT

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1

S.399A of the Fair Work Act 2009

2

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

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PR 956665