Darren Oliver Beaty v DIY Flat Pac Kitchens
[2022] FWC 237
•4 FEBRUARY 2022
| [2022] FWC 237 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Darren Oliver Beaty
v
DIY Flat Pac Kitchens
(U2021/11333)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 4 FEBRUARY 2022 |
Application for an unfair dismissal remedy – non-responsive and non-compliant applicant – application dismissed
On 4 February 2022, during a resumed telephone hearing of this matter, I delivered an ex tempore decision dismissing Darren Beaty’s unfair dismissal application. I did so of the Commission’s own motion under section 587. These are my reasons for decision.
Background
Darren Beaty (Mr Beaty) lodged an application for an unfair dismissal remedy with the Commission on 8 December 2021.
DIY Flat Pac Kitchens, the Respondent, provided a response to the application on 14 December 2021. In this response it raises a jurisdictional objection, that the business is a small business and that the dismissal of Mr Beaty was consistent with the Small Business Fair Dismissal Code.
As part of the Commission’s regular practice for matters of this type, Mr Beaty’s application was listed for conciliation by a staff conciliator on 19 January 2022. This conciliation did not proceed as Mr Beaty did not dial in. The Respondent was in attendance. The Respondent advised it was willing to participate in a second conciliation.
On 23 January 2022 Mr Beaty emailed the Commission in the following terms:
“Just like to advise I had a serious fall due to my KNEE INJURY I received at Diy Flat Pac Kitchens for which I am still on work cover for awaiting surgery.
In the fall I shattered my mobile phone and could not accept your call or recover any information until.
It's quite simple Diy Flat pac kitchens have broken the law and if you can't see that there's something going on.
If I don't receive the compensation as deserved iv got a full report being released to the media after legal proceedings for the Deformation and Slander.
I will not stop until Diy Flat pac kitchens get what they deserve, closure.
Regards Darren Beaty”
Upon receiving this email the Commission allocated the matter to a member for determination, despite the earlier attempts at conciliation not taking place.
On 27 January 2022 my chambers listed a directions hearing for 3 February 2022. The Notice of Listing provided:
“It is your responsibility attend a proceeding, proceedings conducted by telephone or video conference are no exception.
The Deputy President will not dial you into the proceeding. It is your responsibility to be present at the appointed time.
Parties not attending proceedings risk the matter being dealt with in their absence.”
The Notice of Listing was sent to parties at their nominated email addresses.
The directions hearing took place on 3 February 2022. The employer attended. No appearance was made by Mr Beaty. No communication had been received from Mr Beaty in advance of the hearing.
Immediately prior to the directions hearing (and upon the appointed time passing) my chambers telephoned Mr Beaty. This call was not answered. A voicemail was left advising of the hearing requesting a call-back. No call back was received from Mr Beaty.
Following the directions hearing I listed the application for a resumed directions hearing at 3.00pm (ACDT) 4 February 2022 and issued directions requiring Mr Beaty to advise the Commission in writing by 12 noon (ACDT) on 4 February 2022 of the reason(s) for his non-attendance at the 3 February 2022 directions hearing. The directions provided:
“The FAIR WORK COMMISSION DIRECTS Darren Beaty to provide to the Commission and to DIY Flat Pac Kitchens by 12 noon (12.00pm ACDT) on Friday 4 February 2022:
a written explanation for his non-attendance at the directions hearing listed for 1:00pm ACDT on Thursday 3 February 2022.”
The directions were sent to the nominated email address of each party.
Notwithstanding the Commission’s directions, no communication (written or otherwise) was received by the Commission from Mr Beaty providing an explanation for non-attendance at the directions hearing, by noon on 4 February 2022 or otherwise.
On 4 February 2022 the scheduled further directions hearing proceeded. The employer attended. No appearance was made by Mr Beaty.
Upon considering the matter, I determined that the application should be dismissed under section 587 of the FW Act on the ground that it had no reasonable prospects of success given that, in the circumstances, it was not being actively prosecuted and directions issued had not been complied with.
Statutory provisions
Section 587 provides:
“587 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.
(2)Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.” (notes omitted)
Consideration
Leaving aside non-attendance at conciliation, Mr Beaty has twice failed to attend hearings of the Commission. He has also failed to comply with a direction to provide an explanation for non-attendance.
It is well-established that an applicant has an obligation to comply with directions and actively and attentively prosecute their claim. There are minimum disciplines associated with invoking a statutory jurisdiction and litigating in a quasi-judicial tribunal. Invoking the Commission’s jurisdiction is neither cost nor consequence free; doing so puts a responding party (in this instance, the employer) to time and expense in defending its position. It also utilises the services of a publicly funded tribunal whose members and staff have statutory obligations to conduct the institution’s business fairly and efficiently having regard to the interests of multiple applicants and respondents. A minimum discipline is to attend hearings and comply with directions in advance of hearings or, at the very least, provide explanations and seek timely extensions should compliance not be possible.
In Peter Viavattene v Health Care Australia, a full bench stated:
“There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).”[1]
Leaving aside the jurisdictional objection in this matter, it is a significant step to dismiss an application that is otherwise within jurisdiction without a merits hearing.[2] However, parliament has underscored the importance of actively and attentively prosecuting one’s claim by empowering the Commission to dismiss applications of its own motion (section 587) or to do so for specific non-compliance on application by a respondent employer (section 399A).
I concur with the observations of Deputy President Colman in Diane Porteous v G. Kakafikas and A.G. Bek Partnership T/A Yarra Glen Pharmacy:
“[19] It is completely unacceptable that a person can institute a legal proceeding, fail to prosecute it, and waste the other party’s time and that of the Commission, all with impunity and at no cost to themselves other than a filing fee of $73.20. Although there is the possibility under the Act to bring an application for costs, there is a high bar for success and such applications are, understandably, rarely brought. Further, in many cases, particularly those involving small businesses, there are no costs such as legal fees that might be recouped through cost orders. What has been expended is valuable time that could have been put to productive use. In my view there should be more robust consequences under the Act for litigants who fail to make reasonable efforts to prosecute applications.”[3]
Mr Beaty has, for reasons unknown to the Commission, been non-responsive to further attempts to progress his application. It is disrespectful to the process Mr Beaty has instituted to not attend hearings and comply with directions.
Mr Beaty has been put on notice that his application is at risk of being dismissed on procedural grounds yet has failed to be responsive to that notification. The directions of 3 February 2022 stated:
“The FAIR WORK COMMISSION notifies Darren Beaty that failure to comply with directions, including non-attendance at directions hearings may result in the Commission exercising its power under section 587 of the Fair Work Act 2009 to dismiss the application via a public decision of its own accord.”
I am satisfied, in light of Mr Beaty’s non-responsiveness and non-compliance that his application has no reasonable prospects of success as it is not being actively prosecuted to a minimum required level. Section 587 is enlivened.
There are no discretionary reasons not to exercise the power vested by section 587 of the Commission’s own motion. The employer supported dismissal on this basis. These factors, coupled with prejudice arising to DIY Flat Pac Kitchens in defending an unfair dismissal claim that is not being actively prosecuted makes it appropriate to dismiss the application.
Conclusion
Mr Beaty’s application is dismissed under sections 587. An Order[4] to this effect is issued in conjunction with the publication of this decision.
DEPUTY PRESIDENT
Appearances:
No appearance by Mr Beaty
T Hameleers and J Hameleers, of and on behalf of DIY Flat Pac Kitchens.
Hearing details:
2022
Adelaide (by telephone)
February 4
[1] [2013] FWCFB 2532, [39]; see also Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [19] and Patel v The Tea Centre Pty Ltd[2018] FWC 7814
[2] Raschilla v Ausino West Pty Ltd ATF The Supercrane Unit Trust T/A Supercrane Engineered Lifting Technology[2017] FWCFB 5952
[3] [2019] FWC 6264
[4] PR738074
Printed by authority of the Commonwealth Government Printer
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