Craig Spooner v CSC Australia Pty Limited T/A CSC

[2015] FWC 101

[2015] FWC 101

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Craig Spooner
v
CSC Australia Pty Limited T/A CSC
(U2014/12470)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 7 JANUARY 2015

Application for relief from unfair dismissal.

[1] On 12 September 2014, Mr Craig Spooner made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Spooner’s employment had been terminated by CSC Australia Pty Limited T/A CSC on 9 September 2014.

[1] The matter was the subject of conciliation however, the matter was not resolved.

[2] Mr Spooner was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 27 October 2014. Mr Spooner was initially represented by A Whole New Approach, however on 24 October 2014 A Whole New Approach filed a notice that it ceased to act for Mr Spooner.

[3] On 29 October 2014, Mr Spooner requested an extension to file his submissions. In support of this extension of time, Mr Spooner advised that he had not been advised by A Whole New Approach until 24 October 2014 that it was no longer representing him. An extension of time was granted and Mr Spooner was required to file his material by 5 November 2014.

[4] On 5 November 2014, Mr Spooner who advised that he had “new council” sought a further extension to enable him to complete the necessary documentation. CSC consented to the extension but only if the Commission dismissed Mr Spooner’s application under s.399A(1)(b) of the Act if Mr Spooner failed to comply with the revised directions. By telephone on 6 November 2014, Mr Spooner advised that the company he had engaged to run his case would be in contact with the Commission in the near future.

[5] I declined to grant the order sought by CSC but granted Mr Spooner an extension to file his material by no later than noon on 12 November 2014.

[6] Mr Spooner did not comply with this direction nor did he or a representative contact the Commission and seek a further extension of time to file his material.

[7] On 12 November 2014, CSC filed an application for directions on procedure. In that application CSC sought the dismissal of Mr Spooner’s application because he had failed to comply with the Commission’s directions. A copy of that application was sent by CSC to Mr Spooner’s email address.

[8] On 13 November 2014, Mr Spooner sent an email to the Commission however it was not received as Mr Spooner sent it to an incorrect email address. A copy of that email was provided by CSC in its submissions. That email advised that Mr Spooner was finding it difficult to obtain new representation and as Mr Spooner was aware that any representative he did obtain in the future would be “restricted to the contents of any statement [he] may complete, [he had] been reluctant to submit [his] own version thus far.” He further advised that he had written the document and he will have it reviewed and submit it early next week.

[9] Despite this Mr Spooner did not finalise and submit his statement.

[10] On 14 November 2014, Mr Spooner was sent correspondence informing him of CSC’s section 399A application.

[11] That letter mistakenly suggested that Mr Spooner had failed to participate in a non compliance hearing.

[12] Despite this error, I am satisfied Mr Spooner was on notice that CSC sought to dismiss his application and he was directed to file submissions and other documentary material in respect of CSC’s application by close of business, on 24 November 2014. Mr Spooner was advised that if he failed to comply with this direction, his application would be dismissed.

[13] On 21 November 2014 Mr Spooner, in response to CSC’s application to dismiss, sent an email apologising for the delay in filing his material. In opposition to the application Mr Spooner relied on the loss of his original representative. He further advised that despite his earlier advice that he had new representation he had not in fact engaged new representatives. He advised that he was continuing to draft material. Mr Spooner advised that he was involved in another court case and that this required his attention. This was a reference to Mr Spooner being required to attend to give evidence at the District Court on 17 November 2014. Mr Spooner did not explain why he had not filed the material as he had advised he would in his email of 13 November 2014.

[14] On 3 December 2014, CSC responded to Mr Spooner’s response and noted as follows:

1. In the circumstances of the first application for an extension of time CSC did not oppose Mr Spooner’s request for an adjournment.


2. While CSC did not support the second extension sought unless it included a self executing order that the matter be dismissed if the direction was not complied with Mr Spooner was granted the extension and did not comply.


3. Despite Mr Spooner advising on 13 November 2014 that his representative would file material “by early next week” he did not file any material.


4. The explanation provided for his non compliance “is grounded in issues pertaining to the Applicant’s former representative, A Whole New Approach” which ceased representing him on 24 October 2014.


5. Mr Spooner has not provided any substantial reasons for his failure to comply with the second and third set of directions.


6. Mr Spooner had indicated that he had compiled significant material for his previous representatives and therefore this material was available prior to 24 October 2014.


7. Mr Spooner has not put forward any material that supports the merits of his claim.


8. Mr Spooner has not been diligent in pursuing this matter. He did not seek alternative representation until 5 November 2014 and by 6 November 2014 he knew that this company would not act for him.


9. There is no explanation of how being required to attend and give evidence in an unrelated matter caused a delay in lodging his material.


10. There will be prejudice to CSC because of the delay.


11. The applicant’s case has no merit. It was submitted that this was the reason that he was unable to obtain representation and the reason why Mr Spooner has not put forward any material to support his claim.


12. That at the time of filing its submissions Mr Spooner had still not complied with the directions and his default was on going.

[15] Section 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.

....
(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.”

[16] I am satisfied that CSC’s application filed on 12 November 2014 is an application to have the matter dismissed for Mr Spooner’s failure to comply with directions of the Commission.

[17] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. There are no relevant factual disputes between the parties. As such I have resolved to determine the application on the papers.

[18] The role of case management was discussed by the Full Bench in Ghalloub v Anon Riske Services Australia Limited. 1

[19] In summary that decision 2 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; and


● continuing non compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.

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

[21] I accept that Mr Spooner’s non compliance with the initial directions of the Commission were explicable. While he did not seek an extension of time to file his material until after the date for filing had passed, given the short time between when he was advised that his representative was no longer representing him and the time for compliance I do not consider this late request for an extension of time is relevant to whether this application should dismissed.

[22] Mr Spooner then sought a further extension of time on the date his material was due on the basis that he had new representatives. It is clear from the material that on 5 November 2014 Mr Spooner spoke to alternative representatives but it is also clear that there was at that time no agreement that that company would represent him. However I do not find that Mr Spooner misrepresented to the Commission his circumstances. An unsophisticated litigant may not have understood the conditional nature of the email sent to him by the company.

[23] From that date Mr Spooner was aware that CSC were seeking to dismiss his application if he failed to comply with the directions. He knew it was his obligation to submit the material and it appears from the email of 13 November 2014 that Mr Spooner did not submit the material because he thought he would be restricted at the hearing to the content of those statements. This weighs in favour of dismissing the application as this is not a reasonable explanation for his failure to comply with the directions.

[24] I accept the submissions that Mr Spooner did not, after 24 October, promptly seek alternative representation. On his own evidence he did not speak to the proposed representative until 5 November 2014. People are entitled to seek representation but this does not absolve them of their obligation to comply with directions.

[25] I accept that since the application was made Mr Spooner remains in default despite assuring the Commission that the material would be filed.

[26] While there may be some prejudice to CSC because of the delay, no evidence was given of any specific prejudice that may be suffered.

[27] I accept the submissions that the non compliance cannot be excused because Mr Spooner was required to give evidence in an unrelated proceeding.

[28] I am not able to conclude that Mr Spooner’s case is without merit. Mr Spooner provided detailed information in his application about why his dismissal was unfair. I would not conclude on the material before me that the decision of A Whole New Approach to cease acting or the refusal of another representative to pick up his case at late notice is evidence that his case is without merit.

[29] Mr Spooner has not complied with directions of the Commission. It appears that from at least 13 November 2014 that decision was deliberate in that he did not wish to disadvantage himself by filing his material. However his failure to file the material as advised after this day may be explained by the current application.

[30] The decision to dismiss is a discretionary decision. As was said in Ghalloub 3a decision to dismiss should only be made in exceptional circumstances. I am not satisfied that in all the circumstances of this case that Mr Spooner has exhibited an unwillingness to have this matter ready for trial. Mr Spooner was initially represented in these proceedings. He had a legitimate expectation that his representatives would file the material as required by the directions. CSC did not seek to challenge Mr Spooner’s account of how A Whole New Approach came to no longer act for him. While he should have acted promptly in seeking further assistance he did seek further advice. His mistaken view that he would be limited at the hearing to the material filed further caused delay. Had he been properly advised he would have been aware that it is not unusual in the Commission for additional evidence to be given at a hearing albeit with the leave of the presiding Member.

[31] However, I do not propose to dismiss the application to dismiss. I propose instead to issue new directions for Mr Spooner to file material. However I accept the submissions of CSC that should Mr Spooner not comply with further directions of the Commission, without reasonable excuse, that his application should be dismissed. Any further application for an extension of time must be made in writing prior to the date for compliance and must set out the reasons and evidence to support the application. For example, if Mr Spooner is ill any application for a further extension of time must be supported by a medical certificate which advises that Mr Spooner is medically unfit to comply with the directions.

[32] If Mr Spooner fails to comply with these directions I will determine the application to dismiss currently before me without further reference to Mr Spooner.

DEPUTY PRESIDENT

 1   [2005] AIRC 238

 2   Ibid.

 3   Op. cit.

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