Darren Howse v Broken Hill Hire Pty Ltd
[2025] FWC 417
•12 FEBRUARY 2025
| [2025] FWC 417 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Darren Howse
v
Broken Hill Hire Pty Ltd
(U2024/13459)
| DEPUTY PRESIDENT GRAYSON | SYDNEY, 12 FEBRUARY 2025 |
Application for an unfair dismissal remedy - Application for an unfair dismissal remedy –s.399A application - Failure to comply with directions – Application dismissed
This decision concerns an application made under s.399A of the Fair Work Act 2009 (the Act) by Broken Hill Hire Pty Ltd (the Respondent) to dismiss an unfair dismissal application brought against it by Mr Darren Howse (the Applicant).
For the reasons that follow, the Respondent’s application under s.399A is granted, and Mr Howse’s application for an unfair dismissal remedy is dismissed.
Background
On 8 November 2024, Mr Howse made an application to the Fair Work Commission under s.394 of the Act for a remedy, alleging that he had been unfairly dismissed from his employment with the Respondent. On 26 November 2024, the Respondent filed its response which raised a jurisdictional objection that Mr Howse had resigned from his employment. The matter was allocated to my Chambers on 8 January 2025.
On 9 January 2025, the matter was listed for Case Management Conference on 15 January 2025 by Microsoft Teams and directions were issued by email for the filing and service of outlines of argument and witness statements. On 9 January 2025, a further email was circulated to the parties indicating the time and date for the listing, attaching the Directions and enclosing the Microsoft Teams link.
Mr Peter Moloney appeared on behalf of the Respondent at the Case Management Hearing on 15 January 2025. Mr Howse failed to appear at the commencement of the listing and it was stood down for a period of 30 minutes, during which time my Chambers was able to contact him by telephone. Mr Howse indicated to my Chambers that he had not been aware that his application had been listed for Case Management Hearing nor that Directions had been set for the filing and service of outlines of argument and witness statements for the determination of his application. Mr Howse confirmed that his contact information as held on file by the Commission was correct, and subsequently dialled into and participated in the listing. During that listing, I discussed the hearing date and the arbitration process with the parties, as well as what was required from the parties in order to comply with the Directions. I explained that the Fair Work Commission’s benchbooks and YouTube channel may be of assistance to the parties in understanding what to expect from the process and what was expected of them.
Following the Case Management Conference, the Directions were amended and circulated to the parties. Follow-up emails were sent to the parties and an SMS was sent to Mr Howse confirming that these were sent to him and indicating that, on his request, a referral had been made on his behalf to the Workplace Advice Service.
The Directions required the Respondent to file its evidence and an outline of submissions by 20 January 2025, which the Respondent complied with. On 24 January 2025, my Chambers contacted Mr Howse by telephone to remind him of his obligations under the Directions and to confirm his understanding that he was required to file his evidence and submissions by 29 January 2025. Mr Howse failed to comply with the Directions.
On 30 January 2025, and in separate correspondence concerning a referral made by my Chambers to the Workplace Advice Service, my Chambers reiterated the obligations on Mr Howse by way of the Directions to file and serve his material.
On 30 January 2025, the Respondent made an application that these proceedings be dismissed. This application was made in general terms by email to my Chambers which copied in Mr Howse, and did not identify a statutory provision on which it relied. The Respondent identified the following bases in support of the proceedings being dismissed:
1. Mr Howse was a ‘no show’ when this matter came on for the Case Management Conference / hearing Mention and Directions before Deputy President Grayson at 11.30 am (Sydney time) on 15/1/25. The matter was held over for 30 minutes so as to enable your chambers time to contact Mr Howse. Had your chambers not telephoned him then there would simply have been no appearance for Mr Howse at the 15/1/25 hearing.
2. It is I suggest apparent on the face of the documentation which I submitted as attachments to the email which I forwarded to Her Honour’s chambers on 20/1/25 at 1.01 pm that Mr Howse’s claim is doomed to failure upon the basis that the Commission has no jurisdiction to hear it.
3. Mr Howse has had but not availed himself of the opportunity to put in his response to the documentation which I submitted (including 3 statements) on 20/1/25. In other words, he has had the opportunity to be heard in response to the position advanced by me on behalf of my client not only per the statements referred to but also in the submissions which I made on my client’s behalf as were attached to my 20/1/25 email to Her Honour’s chambers.
4. The matter is listed for hearing in Sydney on Monday, 17/2/25. I am in Adelaide. My client’s witnesses all reside in Broken Hill. It will be a major cost and inconvenience imposed upon my clients if we attend for the hearing only to find that Mr Howse is, once again, a ‘no show’.
5. Obtaining a costs order in the circumstances referred to immediately above may be problematic given the terms of s.400A of the Fair Work Act and in any event a costs order is only as good as its enforceability.
On 30 January 2025, my Chambers corresponded with the parties indicating that in the event Mr Howse did not file by 4:00 PM on 3 February 2025 his outstanding evidence and outline of submissions, or seek an extension of time to file them, that the Respondent’s application to dismiss the proceedings would proceed to be considered.
At approximately 4:00 PM on 3 February 2025, Mr Howse sent an email to my Chambers which did not contain any text in the body of the email, did not copy in the Respondent, and attached a letter provided to Mr Howse by the Respondent at the time his employment ended. This letter’s subject line reads ‘Acknowledgement of resignation and return of property in your possession’ and is dated 29 October 2024. This letter had already been appended to the Respondent’s response filed on 26 November 2024 and was included as an annexure to a witness statement filed on behalf of the Respondent by Shannon Joy Minnis dated 15 January 2025, with the annexure marked SJM-3.
On 7 February 2025, my Chambers emailed the parties indicating that despite numerous telephone calls and emails sent to Mr Howse which explained the requirements of the Directions, as well as having been provided with a further opportunity to file his material by 3 February 2025, Mr Howse had failed to comply with the Directions. In these circumstances, the Respondent’s application to dismiss these proceedings as made by 30 January 2025 would proceed to be considered. In the email, Mr Howse was directed to advise the Commission as to whether he wished to attend a hearing for the purposes of being heard on the Respondent’s dismissal application, and directed to file the following material with the Commission and serve a copy on the Respondent:
(a)Submissions providing reasons as to why the Commission should not dismiss the application; and,
(b)Evidence or other documentary material supporting the reasons relied upon by Mr Howse.
Mr Howse was required to comply with the above Directions by no later than 4:00pm on Tuesday, 11 February 2025. The email sent by my Chambers on 7 February 2025 indicated that if he failed to file anything or contact my Chambers by 11 February 2025, it was very likely that his application would be dismissed. Mr Howse did not file any material by this time, and aside from the letter referred to at [11] above, has not filed any material in this matter at all.
Consideration
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.
Section 587 of the Act provides as follows:
586 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a)the application is not made in accordance with this Act; or
(b)the application is frivolous or vexatious; or
(c)the application has no reasonable prospects of success.
Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.
As Mr Howse did not file any material in opposition to the application to dismiss, I will determine the application on the papers.
I consider that although the Respondent’s application has not been made by specific reference to s.399A of the Act, the grounds on which the application has been made at items 1, 3 and 4 of the Respondent’s email disclose that the Respondent relies on s.399A(a) and (b) of the Act. To the extent necessary, pursuant to s.586(b) of the Act, and in accordance with Lockyear v Cox,[1] I waive any irregularities in the form or manner in which the application was made and accept the application, noting that the Fair Work Commission Rules 2024 do not provide, as their predecessor rules did, for the application to be made in any particular approved form.
Consideration of s.399A(1)(a) and (b)
The Respondent’s application relies on Mr Howse’s late attendance at the Case Management Conference on 15 January 2025, and a purported risk that Mr Howse would fail to attend the hearing listed in this matter on 17 February 2025. I find that Mr Howse has not unreasonably failed to attend any listed events before the Commission and consider that s.399A(a) does not capture likelihood of future attendance. Accordingly, this aspect of the application is not made out.
I will now turn to consider the respondent’s application to dismiss the substantive application on the basis of s.399A(1)(b).
In Lockyear v Cox,[2] a Full Bench considered s.399A and stated as follows:[3]
[57]In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:
1.An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.
2.The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.
3.The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.
4.In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.
5.A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.
Mr Howse was appropriately informed of the application to dismiss these proceedings on the day it was made by the Respondent. Mr Howse has been given adequate opportunity to respond to the application, and the correspondence from the Commission clearly identified that the Commission would proceed to determine the application to dismiss these proceedings in the absence of a response from him. I am satisfied that the first three steps as set out in Lockyear v Cox[4] have been met, and that the final two steps are not relevant in the present circumstances given that Mr Howse has not filed any material and accordingly no facts are disputed.
I note that Mr Howse has not filed any response to, nor made any contact with the Commission, concerning the Respondent’s application to dismiss Mr Howse’s application for an unfair dismissal remedy.
Mr Howse was specifically directed to file witness statements and an outline of submissions in support of his unfair dismissal application. Taken at its highest, he provided the Commission only with his dismissal letter, no witness statements, and no submissions. I find that he did not comply with the Directions. I conclude that Mr Howse has not provided a reasonable explanation for failing to comply with Directions to file material intended to be relied upon in the determination of his application. I am satisfied, for the purposes of s.399A(1)(b) of the Act, that Mr Howse’s failure to comply with the Directions issued was unreasonable.
Consideration of s.587(1)(c)
Although the Respondent has not identified s.587(1)(c) of the Act as a basis for its application, the Respondent does refer to Mr Howse’s case being ‘doomed to fail’ on the basis of the documents before the Commission. I consider that this falls within the consideration of subsection (1)(c), being that the application has no reasonable prospects of success.
Given that I am satisfied as to the establishment of s.399(1)(b) of the Act, it is not necessary for me to make a finding as to whether to dismiss Mr Howse’s application pursuant to s.587(1)(c). However, in the alternative to my conclusion on s.399(1)(b), on the basis that Mr Howse has filed no witness statements or submissions to support his case, his apparent unwillingness to file an evidentiary case in support of his application, and having considered the singular document filed by Mr Howse on 3 February 2025, I find that the application has no reasonable prospects of success. It appears that Mr Howse resigned his employment and was accordingly not ‘dismissed’ for the purposes of s.386 of the Act.
Conclusion, order and disposition
In the circumstances described above at [7] to [13] and [21] to [23], I am empowered to exercise the discretion pursuant to s.399A of the Act to dismiss the substantive unfair dismissal application. While this discretion is to be exercised with caution,[5] I am satisfied that it should be exercised given that:
(a)The Applicant has unreasonably failed to comply with Directions issued by the Commission;
(b)The Commission has afforded the Applicant an adequate opportunity to respond to the s.399A application or otherwise engage with the Commission about his substantive unfair dismissal application; and,
(c)The Applicant has been on notice of the consequences of his non-compliance with the substantive Directions as well as the failure to engage with the Commission concerning the application to dismiss these proceedings.
For the reasons given, the Respondent’s application under s.399A is granted.
The Applicant’s application for an unfair dismissal remedy is dismissed pursuant to s.399A(1) of the Act. An Order to this effect will be issued with this decision.[6]
DEPUTY PRESIDENT
[1] [2021] FWCFB 875 (Lockyear v Cox).
[2] Ibid.
[3] Lockyer v Cox [57].
[4] Ibid.
[5] John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925 at [31].
[6] PR784283.
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