Dr Sarah Matthews v AEA Payroll Pty Ltd
[2024] FWC 1758
•5 JULY 2024
| [2024] FWC 1758 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Dr Sarah Matthews
v
AEA Payroll Pty Ltd
(U2024/5306)
| COMMISSIONER JOHNS | MELBOURNE, 5 JULY 2024 |
Application for an unfair dismissal remedy
Background
This decision concerns an application made under s.399A of the Fair Work Act 2009 (Cth) (FW Act) by the AEA Payroll Pty Ltd (the Former Employer) to dismiss an unfair dismissal application brought against it by Dr Sarah Matthews (Dr Matthews).
For the reasons that follow, the Former Employer’s application under s.399A is granted and Dr Matthews’ application for an unfair dismissal remedy is dismissed.
Procedural History
On 10 May 2024, Dr Matthews filed her unfair dismissal application.
On 21 May 2024, the Former Employer lodged its response form raising a jurisdictional objection that Dr Matthews was not dismissed. The Former Employer further noted that it does not wish to engage in conciliation.
On 28 May 2024, the application was allocated to my Chambers. On the same day, I listed the matter for a case management hearing. The notice of listing was sent to both the nominated email addresses of the Former Employer and Dr Matthews.
On 6 June 2024, the Former Employer and its representative attended but Dr Matthews did not despite attempts to contact her via telephone by my Associate. I issued Directions in furtherance of the matter, requiring Dr Matthews to file her material first by 20 June 2024. The parties were provided links to the Commission’s template submission documents. No material was filed by the deadline provided.
On 21 June 2024, an email was sent out requesting Dr Matthews explain the reasons behind her non-compliance. On the same day, Dr Matthews responded by noting she has submitted all relevant material and is not sure what else is needed. Having considered the email, I decided to grant Dr Matthews a further opportunity to file material and provided her until 27 June 2024 to do so and again provided her with links to the Commission’s template submission documents.
On 24 June 2024, the Former Employer indicated via email that if Dr Matthews does not file any material, it reserves its right to file a s.399A application.
On 25 June 2024, my Chambers received an email from Dr Matthews indicating that there is nothing more that she can do, and that no further material will be forthcoming apart from her form F2 filed.
On 1 July 2024, the Former Employer filed a form F1 seeking the dismissal of the application pursuant to s.399A and served the same on Dr Matthews. On the same day, an email attaching a letter was sent to the nominated email addresses of both parties, putting Dr Matthews on notice about the s.399A application and afforded her until 4PM (Melbourne time) on 4 July 2024 to provide her reason/s for non-compliance. The letter expressly provided that if no material is filed by the deadline or the explanation is not reasonable, her unfair dismissal application will be dismissed (the same was reiterated in the body of the email).
Dr Matthews did not provide any reason/s by the deadline provided.
Legislative Framework
Section 399A of the FW Act provides:
‘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.’
The Explanatory Memorandum to the Fair Work Act Amendment Bill 2012 (Cth) in respect of s.399A provided as follows:
‘161. Item 2 inserts a new section 399A to enable the FWC to dismiss an unfair dismissal application where the FWC is satisfied that the applicant has unreasonably:
·failed to attend an FWC conference or hearing relating to the application
·failed to comply with an FWC direction or order relating to the application, or
·failed to discontinue the application after a settlement agreement has been concluded.
162. The power to dismiss an unfair dismissal application in these circumstances is not intended to prevent an applicant from robustly pursuing a legitimate unfair dismissal claim. Rather, the amendment is intended to address the small proportion of applicants who may pursue claims in an improper or unreasonable manner. This amendment responds to Panel recommendation 42.
163. In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant. Examples of when the FWC may exercise its discretion to dismiss an application under these provisions may include where:
·an applicant fails to attend an FWC proceeding relating to the matter without providing prior advice and/or without any reasonable excuse for their failure to attend, or
·an applicant continues to pursue an unfair dismissal application despite a settlement agreement having been concluded by the parties.
164. Note 2 to new subsection 399A(1) draws the reader’s attention to the FWC’s capacity to make an order for costs under new section 400A (explained below) if satisfied that the applicant’s failure caused the other party to the matter to incur costs.
165. New subsection 399A(2) provides that the power to dismiss applications is only exercisable on application by an employer.
166. Subsection 399A(3) and Note 1 to subsection 399A(1) make clear that new section 399A is not intended to limit the FWC’s general power to dismiss applications on grounds such as where the application is frivolous or vexatious or has no reasonable prospects of success under section 587. Similarly, item 3 inserts a note to subsection 587(1) to highlight the FWC’s power to dismiss an unfair dismissal application under new section 399A.
167. Item 1 of Schedule 11 inserts a new Schedule 3 into the FW Act. Item 11 of Schedule 3 provides for these amendments to apply in relation to dismissals that take effect after the commencement of this Part.’
Consideration
The Full Bench of the Commission in Ian Kenneth Lockyear v Graeme Cox (Lockyear) relevantly provided as follows in relation to the operation of s.399A of the FW Act:[1]
‘[30] We observe at the outset that the power to dismiss an application is to be exercised cautiously. As the Full Bench observed in John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station:
‘The Courts have long held that the power to dismiss a substantive application should only be exercised cautiously and sparingly; a fortiori where, as here, the appellant has sought orders for relief for his alleged unfair dismissal. This is so because it results in the complete extinguishment of an applicant’s right to have his/her application for relief orders under beneficial legislation, heard and determined according to law. In short, the application is dismissed before an applicant has had his/her ‘day in court’, or as the appellant pleaded, he just wanted his case heard.’
…
[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.
[58] In most cases, it is not until these steps have been observed that the Commission is in a position to determine the s.399A application before it. It is worth reiterating that a cautious approach should be taken to dismissing a substantive application for relief.’
As set out in the procedural history section of my decision, the first three steps have been satisfied. Because no submissions were filed by Dr Matthews, steps four and five were not enlivened. I must now determine the s.399A application before me.
On two (2) separate occasions the parties were directed to template submission documents to assist them in the preparation of their material. Dr Matthews elected to not use the same and comply with my amended directions. Because there is no compelling evidence to the contrary, I find that Dr Matthews’ non-compliance was unreasonable.
I note the observations made by Deputy President Anderson in Madelyn Taylor v Northline Pty Ltd T/A Northline who stated as follows:[2]
“[20] 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.
[21] 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).”
[22] Leaving aside the jurisdictional objections in this matter, it is a significant step to
dismiss an application that is otherwise within jurisdiction without a merits hearing. 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).[23] 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.”
Conclusion
The Former Employer’s s.399A application is granted.
Pursuant to s.399A of the FW Act, the Commission, as presently constituted, dismisses Dr Matthews’ application for an unfair dismissal remedy on the basis that she has unreasonably failed to comply with directions of the Commission.
An order giving effect to this decision will be issued simultaneously with this decision [PR776701].
COMMISSIONER
[1] [2021] FWCFB 875, [30] & [57] – [58].
[2] [2021] FWC 6213, [20] – [25].
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