Darren Lynch v BHP Coal Pty Ltd

[2020] FWC 44

[2020] FWC 44

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Darren Lynch
v
BHP Coal Pty Ltd
(U2019/10799)

DEPUTY PRESIDENT LAKE BRISBANE, 3 JANUARY 2020

Application for an unfair dismissal remedy – application dismissed.

[1] This decision concerns an application by Mr Darren Lynch (the Applicant) for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The Applicant commenced employment with BHP Coal Pty Ltd (the Respondent) on 28 November 2011. The Applicant was dismissed from his employment with the Respondent on 4 September 2019. The Applicant duly lodged an unfair dismissal application within the requisite time period following his dismissal, alleging that it was unfair.

[2] On 22 November 2019, I listed a directions conference to determine the way forward with regard to the matter following a failed conciliation between the parties. Approximately 10 minutes before the listed conference, the Applicant’s then representative, one Mr James Lovel, sent a message to my chambers saying words to the effect that would be seeking to not represent the Applicant any longer as the Applicant was uncontactable and that he had not been able to obtain instructions from the Applicant. Just prior to the conference, my associate endeavoured to contact the Applicant, but he did not answer. The conference could not proceed, and it was resolved that Mr Lovel would file a Form F54 immediately with my chambers.

[3] Following this failed conference, I wrote to the parties as follows:

“Dear parties

U2019/10799 - Lynch v BHP Coal Pty Ltd

The Deputy President refers to the above matter and the mention/directions conference held today with respect to same.

The mention/directions conference listed at 3:30pm AEST on 22 November 2019 (today’s conference)was unable to proceed.

The Deputy President confirms for the record that:

1. the Applicant’s representative sent an email to chambers 10 minutes prior to the scheduled start time of today’s conference indicating that he intended to cease acting for the Applicant; and

2. a subsequent phone conversation with the Applicant’s representative and the Deputy President’s associate confirmed that the Applicant had been uncontactable and therefore the Applicant’s representative had been unable to seek instructions for today’s conference; and

3. the Applicant was otherwise uncontactable for today’s conference; and

4. the Applicant (himself) was provided a notice of listing to his email address for today’s conference.

The Deputy President now directs as follows:

1. the Applicant’s representative is to file a Form F54 – Notice that a lawyer or paid agent has ceased to act for a person forthwith; and

2. a further mention/directions conference is to be listed for 3:30pm on Thursday 28 November 2019 in which the parties must attend.

The Deputy President puts the Applicant on notice that:

should the Applicant not attend the further mention/directions conference now listed for 3:30pm on Thursday 28 November 2019, then the Deputy President may be minded to exercise his discretion under s.587 of the Fair Work Act 2009 to dismiss the Applicant’s application without further notice to the Applicant, or alternatively under any application by the Respondent.

Should either party have any concerns with respect to the above, please do not hesitate to contact chambers on the below contact details.”

[4] The Respondent then wrote back to me and the Applicant as follows:

“Dear Associate,

The Respondent appreciates the Deputy President confirming the below matters.

The Respondent considers it appropriate to foreshadow to the Applicant and Chambers that, should the Applicant not attend the Conference next Thursday, the Respondent intends to, at that time:

1) seek an order under s. 399A that the Applicant’s application be dismissed; and

2) seek an order for costs in relation to all costs incurred by the Respondent in responding to the Application up to and including next Thursday.

The Applicant has been copied to this correspondence.”

[5] Mr James Lovel duly filed a Form F54 with my chambers on 28 November 2019.

[6] The further listed conference proceeded on 28 November 2019 and, at this conference, I set directions for the further programming of the matter which I confirmed in writing to the parties after the conference as follows:

“Dear parties

U2019/10799 - Lynch v BHP Coal Pty Ltd

Deputy President Lake refers to the above matter and the mentions/directions held today with respect to same.

The Deputy President confirms the following directions as outlined to the parties at today’s mention/directions which must be complied with:

1. the Applicant is to file with the Commission and serve on the Respondent its submissions and any material in support of his application by no later than 4pm on 20 December 2019;

2. the Respondent is to file with the Commission and serve on the Applicant its submissions and any material in response to the Applicant’s application by no later than 4pm on 17 January 2020;

3. the Applicant is to file with the Commission and serve on the Respondent its submissions-in-reply to the Respondent’s submissions and material by no later than 4pm on 24 January 2020;

4. the matter will (likely) be listed for a hearing over two (2) days in March 2020 in Mackay. A notice of listing will be sent to the parties closer to this date.

Should the parties have any queries regarding the above, please do not hesitate to contact chambers on the contact details below.”

[7] On 2 December 2019, the Applicant wrote to me as follows:

“Dear Deputy President Lake,

In regards to case: U2019/10799 - Lynch v BHP Coal Pty Ltd, I was asked to forward my intended representation Lawyer in this case and as far will not be James Lovel and i am seeking alternative representation.

I will forward details by Wednesday of my new Lawyer for representation.

Regards
Darren Lynch”

[8] I heard nothing back from the Applicant by Wednesday [4 December 2019] or indeed at all subsequent to this email. The Applicant has been generally uncontactable.

[9] On 30 December 2019, the Respondent wrote to me as follows:

“Dear Associate,

U2019/10799 - Lynch v BHP Coal Pty Ltd

I refer to the abovementioned matter and the Directions of the Deputy President dated 28 November 2019.

The Respondent has still not received the Applicant’s materials.

The Respondent has attempted to contact the Applicant on multiple occasions in an attempt to confirm the status of the Applicant’s case (see attached), however has to date still received no response.

To avoid the Respondent unnecessarily incurring additional cost in relation to this matter, and in light of the seeming repeated failures of the Applicant to comply with the Directions of the Commission, the Respondent respectfully requests that the matter be brought on for a non-compliance hearing at the Deputy President’s earliest convenience, at which time Respondent will seek orders that the application be dismissed and that the Applicant pay the Respondent’s costs.

The Respondent’s representative is available other than on 2 January 2019. The Applicant has been copied to this correspondence.”

[10] The attached correspondence in the Respondent’s email to me confirmed that on two occasions; on 23 December 2019 and on 27 December 2019, the Respondent wrote to the Applicant to ask whether he had filed material in the matter in accordance with the directions I had set on 28 November 2019. The Respondent received no reply from the Applicant.

[11] On 30 December 2019, after reviewing this communication from the Respondent, I wrote to the parties as follows:

Dear parties

U2019/10799 - Lynch v BHP Coal Pty Ltd

Deputy President Lake refers to the above matter and the below correspondence with respect to same regarding the Applicant’s non-compliance with the directions issued by the Deputy President on 28 November 2019.

Chambers confirms that it, like the Respondent, is yet to receive the Applicant’s submissions and material.

In light of the above, the Deputy President now directs the following:

1. the Applicant is to advise the Commission by no later than 4pm on 31 December 2019 that it intends to continue its application;

2. that should the Applicant’s response in direction 1. above be in the affirmative, the Applicant is to file with the Commission and serve on the Respondent a copy of its submissions and material that it intends to rely on by no later than 4pm on 3 January 2020;

3. that the Respondent, upon the Applicant complying with directions 1. and 2. above, be permitted to file in the Commission and serve on the Applicant its submissions and material that it intends to rely on by no later than 4pm on 31 January 2020.

The Deputy President puts that the Applicant on notice that should either direction 1. or 2. not be complied with then the Applicant’s application may be dismissed without further notice to the Applicant.”

[12] No response was received by the Applicant. This conduct, I found, galling.

[13] Accordingly, I find that the Applicant, since I have had carriage of the matter, has:

•  failed to turn up at a listed mention/directions conference on 22 November 2019;

•  failed to comply with a direction to file his submissions and materials by 4pm on 20 December 2019;

•  failed to comply with a further direction to advise me that he intended to continue his application by 4pm on 31 December 2019; and

•  failed to comply with a further direction to file his submissions and materials by 4pm on 3 January 2020.

[14] This behaviour is clearly not acceptable. If you bring a claim, you have to prosecute it. The Applicant has failed to prosecute his claim.

Dismissing the application

[15] Section 587 of the Act provides:

“587 Dismissing applications

(1) [When FWC may dismiss application]

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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

…”

[16] I have concluded that given the way in which the Applicant has approached his application to date, it is a frivolous and vexatious application (s. 587(1)(b)) and has no reasonable prospects of success (s. 587(1)(c)). I have no confidence that the Applicant will comply with any future directions or even turn up to any listed conference or hearing. I have no confidence that I will ever receive any submissions or evidence from the Applicant to support his application given the Applicant’s conduct to date.

[17] I have therefore determined it appropriate that I exercise my discretion to dismiss the application.

[18] In my view, both myself and the Respondent have been more than fair to the Applicant.

[19] After the Applicant did not turn up at the directions conference on 22 November 2019, I listed a further conference on 28 November 2019. At that further conference, I distinctly recall me advising the Applicant of the importance of engaging with the Fair Work Commission (the Commission), as he had brought the application and must prosecute his claim. I recall advising the Applicant of the importance of complying with directions. The Applicant did not comply with directions. The Respondent wrote to the Applicant twice alerting him to his non-compliance. The Applicant continued to not comply or even respond to the Respondent. I then wrote to the Applicant asking him to advise me that he intended to continue with his application. I provided a further period for him to file his submissions. I heard nothing back from the Applicant.

[20] I am once again left disappointed by an applicant who has made an application and not prosecuted his claim. It has been a waste of time for me, the Commission and the Respondent. Ultimately, this whole process has been a shameful waste of resources.

[21] I dismiss the Applicant’s application pursuant to s. 587 of the Act. I so Order.

DEPUTY PRESIDENT

Appearances (as at the directions conference held on 28 November 2019):

The Applicant: Mr Darren Lynch himself.

The Respondent: Mr James McLean of BHP Coal Pty Ltd.

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