Daniel O'Shannessy v Epworth Foundation
[2022] FWC 899
| [2022] FWC 899 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Daniel O’Shannessy
v
Epworth Foundation
(U2022/81)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 20 APRIL 2022 |
Application under s 399A – applicant’s failure to comply with directions – no explanation for failure – application dismissed
This decision concerns an application made under s 399A of the Fair Work Act 2009 (Act) by Epworth Foundation to dismiss an unfair dismissal application brought against it by Mr Daniel O’Shannessy.
On 24 March 2022, I issued directions which required Mr O’Shannessy to file and serve an outline of submissions and any witness statements or other material on which he intended to rely in support of his application by 7 April 2022. Mr O’Shannessy failed to do so. On 11 April 2022, I wrote to Mr O’Shannessy, noting that he had not filed his materials and that he was required to do so.
On 12 April 2022, Mr O’Shannessy sent an email to my chambers, stating that a ‘number of factors’ had contributed to his failure to file his materials, ‘including difficulties in obtaining documents and information from Epworth’. He did not identify the documents or difficulties in question. Later that day, Epworth sent an email message to my chambers and Mr O’Shannessy stating that the applicant’s materials were now five days overdue, and that if the materials were not filed by the close of business that day, it would make an application under s 399A for the matter to be dismissed. Mr O’Shannessy replied, stating that he ‘would request a period of time to first allow the production of documents as a matter of fairness’. He did not identify the documents in question or explain why it would be fair to allow a further period.
I listed Mr O’Shannessy’s application for a non-compliance hearing at 14.00 on 14 April 2022. Late on the evening of 13 April 2022, Mr O’Shannessy sent to my chambers a message in which he stated: ‘Before I attend a non-compliance conference / hearing which may cause me further detriment, I must first inquire what this is about.’ Mr O’Shannessy further stated that he had other commitments on 14 April 2022 and requested that the listing be rescheduled. On the morning of 14 April 2022, I wrote to the parties and advised Mr O’Shannessy that the purpose of the non-compliance hearing at 2.00pm that day was for him to explain why he had failed to comply with the directions of 24 March 2022, and for the Commission then to determine whether to allow him a further period to file his material.
At noon on 14 April 2022, Epworth sent an email message to my chambers, copied to Mr O’Shannessy, stating that it wished to make an application under s 399A for the Commission to dismiss Mr O’Shannessy’s application on the basis that he had unreasonably failed to comply with the Commission’s directions of 24 March 2022, as well as my further direction of 11 April 2022 that he file his materials.
Mr O’Shannessy did not attend the non-compliance hearing on 14 April 2022. At the hearing, Epworth referred to its correspondence of that day and asked the Commission to dismiss Mr O’Shannessy’s application under s399A. I waived the requirement of the Fair Work Commission Rules (Rules) that the s 399A application be lodged on a form F1 (the general form to be used for applications in respect of which no other form is prescribed by the Rules). I did so because the grounds for the application were brief, simple, and already concisely set out in Epworth’s correspondence of that day. However, I declined to dismiss Mr O’Shannessy’s application at that time and determined instead that it was appropriate to grant Mr O’Shannessy until the close of business on 19 April 2022 to provide any submissions he may wish to make in response to Epworth’s application, whereafter I proposed to determine the s 399A application on the papers.
Shortly after the conclusion on the non-compliance hearing, my associate wrote to Mr O’Shannessy on my behalf, advising him that at the hearing Epworth had pressed its application under s 399A on the grounds set out in its email of that day, and that I had waived compliance with the requirement to file a form F1. I directed Mr O’Shannessy to file in the Commission any submission he wished to make in relation to Epworth’s application under s 399A by 5.00pm on Tuesday, 19 April 2022, whereafter I proposed to determine that application on the papers.
On the afternoon of 19 April 2022, Mr O’Shannessy sent an email to my chambers, stating that ‘any delay or non-compliance primarily flows from the inability to obtain documents and information from Epworth, either from them acting in good faith or my lack of knowledge of any procedure to otherwise compel Epworth’. Mr O’Shannessy asked whether there was a self-help manual to assist ordinary people to prepare their case. He also asked what processes were available to compel the production of documents. That afternoon, through my associate, I sent Mr O’Shannessy links to the Commission’s website pages containing the unfair dismissal ‘benchbook’ and information on applications for production of documents. I reminded Mr O’Shannessy that he was to provide any submission on Epworth’s s 399A application by 5.00pm that day. None further correspondence was received.
Section 399A of the Act states that, on application by the employer, the Commission may dismiss an application for an unfair dismissal remedy if it is satisfied that the applicant ‘has unreasonably failed to comply with a direction or order of the FWC relating to the application’ (s 399A(1)(b)). I am satisfied that Mr O’Shannessy unreasonably failed to comply with my directions of 24 March 2022. Those directions required Mr O’Shannessy to file an outline of submissions and any witness statements and other material on which he proposed to rely by 7 April 2022. He did not do so. He therefore failed to comply with the directions. I consider that the failure was unreasonable for the following reasons.
First, Mr O’Shannessy has not offered any reasonable explanation for his failure to comply with the directions. In his message of 12 April 2022, Mr O’Shannessy asked for a ‘period of time to first allow the production of documents as a matter of fairness’. But he did not explain what documents he was seeking. He did not explain why these documents were important or even relevant. In any event, if Mr O’Shannessy believed the documents were important, it was his responsibility to make an application for orders for their production. It is not good enough for Mr O’Shannessy simply to say that he is unfamiliar with the procedures. If Mr O'Shannessy had paid proper attention to his application, he would not have waited until his materials were 12 days overdue before asking, as he did yesterday, how to make an application for production of documents and whether there was information to assist parties to prepare their case. I note that Mr O’Shannessy has not explained why he could not file his outline of submissions and witness statements before obtaining the documents he sought. Based on the information before me, there is no good reason why Mr O’Shannessy failed to comply with my directions of 24 March 2022.
Secondly, I consider that Mr O’Shannessy has been afforded a reasonable opportunity to redress his non-compliance but has failed to do so. In particular, the application was listed for a non-compliance hearing, which, as I explained to Mr O’Shannessy, was to serve the purpose of allowing him to explain why he had failed to comply with the directions. But he did not attend the hearing. Nor has Mr O’Shannessy since provided an acceptable explanation for his failure or given any indication that he intends to file his materials in the near future. It appears rather that he expects Epworth to provide him with certain documents before he will comply with the Commission’s directions. But he has not explained why the documents are relevant, nor has he taken steps to have the Commission order their production. Mr O’Shannessy’s materials are now 13 days overdue. He has still not filed them.
My discretion to dismiss Mr O’Shannessy’s unfair dismissal application under s 399A has been enlivened. I consider it appropriate to exercise the discretion in this case. I take into account the failure of Mr O’Shannessy to provide a reasonable explanation for his failure to comply with my directions and the fact that he has persisted in failing to file his materials. He also failed to attend the non-compliance hearing. The Commission issues directions in relation to an unfair dismissal application in order to facilitate a fair and transparent determination of the application. Epworth is entitled to understand the case that is put against it in good time so that it may properly respond. This is a matter of basic fairness. Further, parties must comply with the Commission’s directions, not determine for themselves whether and when they will do so or set conditions for their compliance. This is not a case where an applicant has advised the Commission that he does not wish to file any materials and relies simply on the F2 application. It is not a case where the applicant has overlooked a deadline or claims on reasonable grounds to need more time. Mr O’Shannessy still has not filed the materials that were required to be lodged on 7 April 2022. Nor has Mr O’Shannessy bothered to file any substantial submission in response to Epworth’s application under s 399A.
For these reasons, I consider that it is appropriate to dismiss Mr O’Shannessy’s application under s 399A.
Finally, I note that the merits of Mr O’Shannessy’s application appear to me to be weak. The correspondence between the parties filed in this matter indicates that from 15 October 2022, Epworth was prohibited by Victorian public health directions from allowing Mr O’Shannessy to attend the workplace because he had not provided evidence of his vaccination status. Mr O’Shannessy was employed as a hospital theatre technician. He was not able to do his job. Based on the material before the Commission, it is difficult to see how the dismissal could be regarded as unfair.
Pursuant to s 399A, Mr O’Shannessy’s application is dismissed.
DEPUTY PRESIDENT
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