Dino De Giusti v NSW Trains

[2017] FWC 6742

[2017] FWC 6742

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Dino De Giusti
v
NSW Trains
(U2017/4325)

DEPUTY PRESIDENT SAMS SYDNEY, 15 DECEMBER 2017

Application for an unfair dismissal remedy – application to dismiss substantive application for failure to comply with directions of the Commission – s 587 and s 399A of the Fair Work Act – caution to be exercised in dismissing a substantive application – ongoing failure to comply with directions despite warnings of the consequences – application dismissed.

[1] In a decision of the Fair Work Commission (the ‘Commission’) on 8 November 2017, I set out a brief background to this matter: [2017] FWC 5710. Given the respondent, NSW Trains, has reagitated an application under s 399A(1) of the Fair Work Act 2009 (the ‘Act’) to have Mr De Giusti’s (the ‘applicant’) unfair dismissal application dismissed, it is useful to set out that background again as follows:

‘[1] Mr Dino De Giusti (the ‘applicant’) was dismissed from his employment as a Passenger Service Supervisor by NSW Trains (the ‘respondent’) on 7 April 2017. His dismissal for alleged serious misconduct followed an investigation of nine allegations - the majority of which concerned the alleged sexual harassment or inappropriate conduct towards a number of female colleagues and the travelling public. An investigation concluded that all of the allegations were substantiated. On 21 April 2017, Mr de Giusti filed with the Fair Work Commission (the ‘Commission’) an application for an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (Cth) (the ‘Act’); namely that NSW Trains’ decision to dismiss him be ‘overturned’ and he be reinstated to his former position.

[2] This matter has had some history. The application was originally allocated to Commissioner Johns. At two earlier listings of the matter for mention/directions (11 July and 26 July 2017), there was no appearance, for or on behalf of the applicant at this conference. On 14 July 2017, the Rail Tram and Bus Union (the ‘Union’) filed a notice of representative ceasing to act for the applicant. At the second listing (26 July 2017), NSW Trains made an application to have the application dismissed under s 399A(2) of the Act, for want of prosecution. This application was withdrawn after the Commissioner was alerted to problems with the notice of listing being received by the applicant.

[3] The matter was remitted to me in early September 2017 and listed for hearing on 27 October 2017. In accordance with my usual practice, I also listed a conference with the parties on 25 September 2017. There was no appearance for, or on behalf of the applicant. On 27 September 2017, NSW Trains filed a further application seeking the dismissal of the unfair dismissal application under s 399(1)(b) of the Act. That application was listed for mention/directions on 5 October 2017 and all the extant directions were dissolved. The applicant was also directed to provide an explanation for his non-attendance at the conference on 26 September 2017. On 3 October 2017, Ms Nash, the applicant’s partner, advised that she had been unwell prior to the listing and had been in hospital when my Associate phoned the applicant for the conference on 25 September 2017.

[4] At the conference on 5 October 2017, the applicant objected to NSW Trains being represented by a lawyer. Directions were issued seeking submissions as to why permission should be granted for NSW Trains to be represented by a lawyer, pursuant to s 596 of the Act. The directions required the applicant to file his submission by 19 October 2017 (NSW Trains had filed its submissions on 11 October 2017).

[5] On 26 October 2017, I had cause to direct the following email be sent to the applicant:

“Dear Mr De Giusti

…

His Honour notes that you have not complied with the direction to file and serve submissions by COB 19 October 2017 as to your objection to NSW Trains being represented by a lawyer in your unfair dismissal case.

Unless you provide a submission by COB Monday 30 October 2017, His Honour will proceed to determine the application by NSW Trains to be represented by a lawyer on the basis of NSW Trains’ submissions an the material already filed by both parties.

You are reminded that a continuing pattern of non-compliance with the Commission’s directions, may result in your unfair dismissal application being dismissed. …”

[6] Ms Nash sent my Chambers an email at 4.50pm on 30 October 2017 stating that the material was almost complete, but not ready to be filed. Although she did not specifically explain what the cause of the delay had been, she said it was as a result of a ‘number of circumstances, situations and unexpected issues’ beyond their control. She said the submissions would be filed the following morning, Tuesday 31 October 2017. At 9.29am the following morning, Ms Nash emailed my Chambers a document with several pages of text. However, it was in an ineligible font, ‘Wingdings’. Once the text had been converted to a legible font, it was apparent the document was a totally irrelevant academic essay entitled, ‘The Cutting Edge: Educational Innovation, Disability Law, and Civil Rights’ by E Moore and P Grossman of the University of Colorado and United States Department of Education respectively. At 9.55am that morning, my Associate emailed Ms Nash asking whether that was the document she intended to file. She responded the following day at 4.13pm advising that she did not know how that material had been filed and that she would try to send the relevant material the following day (2 November 2017). To date, no further material has been provided.’

[2] On 10 November 2017, the Commission listed the matter for mention and/or directions. There was no appearance for, or on behalf of, the applicant. Attempts at calling him (which had been successful on 5 October 2017) were unsuccessful and it seemed the phone number previously advised by the applicant had been disconnected. As I was satisfied that the applicant was aware of this listing through email advice, it is regrettable that if the phone number had been disconnected, the Commission was not informed, nor alternative arrangements made. On that occasion, NSW Trains was represented by a solicitor, Mr A Battagello, and Mr P Thompson.

[3] On 13 November 2017, the Commission issued the following direction by email to the parties:

‘The applicant, Mr Dino De Giusti, is to file in the Commission and serve on the respondent, an outline of submissions, witness statements (if any) and any other documentary evidence on which he seeks to rely in opposition to respondent’s application, pursuant to s 399A of the Fair Work Act 2009 and filed in 27 September 2017, for the Commission to dismiss the applicant’s substantive unfair dismissal application by no later than 4.00pm on Monday, 27 November 2017.’

This direction was not complied with. There have been no communication from the applicant or his representative, Ms Nash, since 1 November 2017, when she explained in respect to the nonsense email sent on 30 October 2017 that it was the wrong document and she would send the correct one the following day. Nothing was sent; see: para [6] quoted in para [1] above.

[4] On 28 November 2017, Mr Battagello sent the following email to Chambers:

‘Dear Associate

We refer to the telephone mention/directions before his Honour on 10 November 2017. The Applicant failed to attend those directions by phone, despite his Honour being satisfied that the Applicant had been made aware of the listing.

Subsequent to this mention, his Honour made the attached Order, requiring the Applicant to file and serve any material in response to the Respondent’s s 399A application filed 27 September 2017 by 4:00 pm, 27 November 2017. No such material has been received by the Respondent.

In light of the Applicant’s further failures to attend directions and comply with the Commission’s orders, the Respondent respectfully requests that his Honour now determine this matter on the papers on the material before him. For your assistance, we attach a copy of the Respondent’s s 399A application as previously filed.’

[5] In light of the above narrative, I have decided to dismiss this application for want of prosecution and a failure to comply with the Commission’s directions. These are my reasons.

[6] The Commission’s power to dismiss an application are set out generally at s 587 of the Act and specifically in respect to unfair dismissal applications under s 399A. I set out both sections below:

SECTION 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.

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.

(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.

SECTION 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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).

(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.

[7] The power to dismiss a substantive application should only be exercised cautiously; see: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at para [8]. This is so because it results in the extinguishment of a party’s application, which has been made in order to seek some form of relief, from a beneficial statutory provision. In other words, the application is dismissed before an applicant has had his/her ‘day in court’.

[8] That said, s 587 of the Act does not limit the grounds on which the Commission, of its own motion, may dismiss an application. In the present case, the applicant has demonstrated a persistent unwillingness to properly engage with the Commission in respect to his application. Despite an earlier, unsuccessful s 399A application, where the applicant was given the benefit of the doubt as to incorrect email addresses, he continues to ignore the Commission’s directions and has now failed on two occasions to file any material or submissions in respect to the earlier s 596 application by the respondent, and more lately, its s 399A application. The applicant has made no attempt to explain these failures, despite being warned of the possible consequences. Given this history, I have little confidence that the applicant will, at some future point, seek to desist from this conduct.

[9] In Viavattene v Health Care Australia [2013] FWCFB 2532, a Full Bench of the Commission said at para [39]:

‘[39] It is apparent from the decision subject to appeal that the Commissioner had regard to Sayer v Melsteel, and made her decision following an analysis of the respondent's uncontested evidence, noting that the respondent's sworn statements and submissions contained “substantial arguments in response to the Applicant's contentions”. 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).’ [endnotes omitted]

[10] In my view, it is unfair and unreasonable that the respondent should be put to more time and cost in defending a matter which is not properly, or at all, being prosecuted by the applicant.

[11] In the exercise of my discretion, I dismiss application U2017/4325, pursuant to s 587 and s 399A(1)(b) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code C, PR598747>