Edgardo B. Umerez v Flanders Electric of Australia Pty Ltd T/A Flanders of Australia

[2020] FWC 4244

[2020] FWC 4244

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Edgardo B. Umerez
v
Flanders Electric of Australia Pty Ltd T/A Flanders of Australia
(U2020/6874)

COMMISSIONER HUNT BRISBANE, 13 AUGUST 2020

Application for an unfair dismissal remedy – s.399A application to dismiss – failure of applicant to attend conference and file materials as required by directions – not satisfied evidence establishes that substantive application should be dismissed – s.399A application dismissed.

Background

[1] On 18 May 2020, Mr Edgardo B Umerez filed an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) alleging that Flanders Electric of Australia Pty Ltd T/A Flanders of Australia (the Respondent) unfairly dismissed him.

[2] In its Form F3 response, the Respondent submitted that the dismissal was not unfair and that there was a valid reason for the dismissal relating to Mr Umerez’s alleged poor attendance record, aggressive behaviour in the workplace and breaches of safety procedures.

[3] In accordance with usual practice, the matter was listed for a telephone conciliation before a Fair Work Commission (the Commission) staff conciliator on 17 June 2020. The parties were advised of the listing by letter dated 3 June 2020 and received an SMS reminder on 16 June 2020.

Failure to participate in conciliation

[4] Conciliation did not proceed on 17 June 2020 as Mr Umerez failed to participate. A letter issued that day provided Mr Umerez with two working days to advise whether he wished to have the conciliation rescheduled. The letter provided that if no response was received within that time it would be referred directly to a Commission Member. No response was received, and the matter was allocated to my Chambers on 26 June 2020.

[5] On 26 June 2020 my Associate emailed Mr Umerez seeking confirmation that he wished to proceed with the application. Mr Umerez responded by email stating he wished to discuss the matter by phone. My Associate communicated by email on 29 June 2020, requiring Mr Umerez confirm his willingness to pursue the application. Mr Umerez confirmed on 2 July 2020 he wished to proceed with the application.

[6] A notice of listing and directions were issued to the parties on 3 July 2020. The notice of listing and directions provided that:

•  A preliminary teleconference would be held at 2:00pm on 14 July 2020;

•  Mr Umerez was required to file and serve any submissions, witness statements or other documentary material he wished to rely on by no later than 4:00pm on Friday 24 July 2020;

•  The Respondent was required to file and serve any submissions, witness statements or other documentary material it wished to rely on by no later than 4:00pm on Friday 14 August 2020;

•  Mr Umerez was required to file and serve any material in reply by no later than 4:00pm on Friday, 21 August 2020; and

•  The matter would proceed to hearing at 10:00am on Thursday, 27 August 2020.

Failure to participate in conference

[7] On 13 July 2020, Mr Umerez provided the contact number he wished to be called for the preliminary teleconference. On 14 July 2020, my Associate was unable to contact Mr Umerez on the number provided. As a result, my Associate sent the below email at 2:04pm:

“Dear Applicant,

Reference is made to the conference listed before Commissioner Hunt at 2:00pm today.  Chambers has attempted to contact you on the advised telephone number, but has been unsuccessful.  Number [redacted] appears to no longer be in service, and number [redacted] appears to be unavailable.

Could you please advise the number for today’s conference as a matter of urgency?”

[8] No response was received, and the teleconference was unable to proceed.

[9] At 2:53pm on the same day the following correspondence was issued to the parties:

“Dear parties,

Reference is made to the unfair dismissal application made by Mr Umerez on 18 May 2020. 

It is noted that the Commission has listed Mr Umerez’s application:

•  For a Conciliation before a staff conciliator on 17 June 2020; and

•  For a Pre-hearing mention before Commissioner Hunt on 14 July 2020 to which the parties were directed to participate in.

The Applicant has been uncontactable and therefore in non-attendance to both the above listings before the Commission.  The Commission attempted to contact the Applicant on number [redacted] which appears not to be in service, and also made four call attempts to number [redacted] today which were unsuccessful.

It is noted that per the email correspondence on 3 July 2020 (see below and attached), the Commissioner issued directions requiring Mr Umerez to file materials in preparation for hearing, by no later than 4:00pm Friday, 24 July 2020.  If no materials are filed by the Mr Umerez by 4:00pm Friday, 24 July 2020 the application will be listed for a non-compliance hearing.”

Failure to file materials as directed

[10] Mr Umerez did not file the required materials by 24 July 2020. At 7:04pm on 24 July 2020 Mr Umerez sent the following email:

“Hi,

The number [redacted] is currently working. Can a new call be rescheduled?

Thanks”

[11] I listed the application for a non-compliance telephone hearing which was held at 3:30pm on 30 July 2020. Mr Umerez appeared on his own behalf. Mr Goran Dahlgren, General Manager appeared for the Respondent.

[12] At the non-compliance hearing Mr Umerez contended that he did not receive any telephone calls until approximately 3:40pm on 14 July 2020. By this time the conference had passed. I informed Mr Umerez that I did not accept this evidence, as demonstrated by the numerous attempts by my Associate to contact him and the two emails sent to him that afternoon, well before 3:40pm. He stated that he was not aware that he had to file written material to the Commission by 24 July 2020 and serve it on the Respondent.

[13] In the strongest of terms I informed Mr Umerez that if he did not file written material to the Commission by 4:00pm Monday, 3 August 2020, I would be likely to, in the event the Respondent wished to make a s.399A application to the Commission to dismiss his application, do so. Amended directions were issued following the non-compliance hearing.

[14] Since the non-compliance hearing, Mr Umerez has participated more actively in the proceedings and has provided a new email address, as the earlier email address provided by him was that of a family member.

The Respondent’s s.399A application

[15] On 31 July 2020, the Respondent filed and served a Form F1 seeking an order that the substantive application filed by Mr Umerez be dismissed pursuant to s.399A of the Act.

[16] The Respondent set out the grounds for which it sought the order as follows:

“Under FWA 2009, Section 399A, the respondent (Flanders) seeks to dismiss the application by Mr Umerez based upon;

A. Applicant failing to attend hearings as directed by the commissioner

a. The applicant failed to attend telephone hearing 17th June 2020

b. The applicant failed to attend telephone hearing 14th July 2020

B. Applicant failing to comply with direction set by the Commissioner.

c. The applicant failed to file material in relation to his application by the 24th July 2020 as directed by the commissioner

C. The claims by the applicant being vexatious or lacking in substance

d. The applicant’s claims are without substance”

Mr Umerez’s written material

[17] On 31 July 2020, Mr Umerez sent by email his Form F2 application together with the following short document:

“To whom it may concern,

First that I did prior to effectivity of unfair dismissal I wrote a letter addressed to the Mgr. of Flanders to inform exactly how work going on the floor. He never made a response to my letter and I made a follow message sent through to the Mgr. email but still nothing happened at the end. For anyone who will take my case it is against to the supervisor who unfairly treated me at work. I want to acquire and practice my privileges as a worker and my rights to protect.

I knew any working institution is govern by laws, laws that should be applied equally and fairly to everyone. At work we are handling different positions but we have all equal rights and privileges to protect.

I am putting up my case to your good office to get help in some ways from unjust dismissal. I believed I have unfairly dismissed. Attached is my dismissal application form.

Thank you very much and I am hoping for your kind consideration regarding this matter.”

[18] Following receipt of the above, the following email was sent from my Chambers, copying in the Respondent:

“The Commissioner notes the material you have filed is your Form F2- unfair dismissal application and supporting documents that were lodged on 18 May 2020.

You have not complied with the amended Directions issued yesterday at 5:13 pm.

If you do not file your material as per the directions (attached), the Commissioner may dismiss your application on the grounds that you have failed to comply with a direction of the Commission relating to your application. It is open to the Respondent to make an application under s. 399A of the Fair Work Act 2009 for your application to be dismissed on the grounds of failure to comply with Directions.

…………….

…………….

Attached to this email is the amended directions issued yesterday at 5:13 pm.

To be extremely clear, you need to provide, at a bare minimum, a witness statement in numbered paragraphs such as:

1. My name is xxxxxxxxxxxxxxxxx.

2. I was employed by xxxxxxxxx from date to date.

3. In that role I performed the following tasks…………..

4. On date, the following happened.  I said “xxxxxxx”.  Mr xxxxx said “xxxxxxxx”

[19] I considered it necessary to effectively “spoon-feed” Mr Umerez the instructions he needed to follow because he was demonstrably failing to comply with the directions issued to him.

[20] On 3 August 2020, Mr Umerez sent the following document which I understand is his best attempt at a witness statement:

“My name is Edgardo B Umerez

May14 2018 up t0 April29 2020

I was employed as a trade assistant. Cleaning spare parts using pressure washer Painting parts which needs to be paint. 0n January 21, 2020 an employee named Jeff who is a Neighbour and Craig my supervisor help Jeff to hire. I was working on that workstation since 20 of January

It happened 21 of January at 11;35 am Jeff tell me without hesitation to move out,

On January 28 I report to Mr Alex Sullivan what happen he told me he will call a meeting it happen in 3 weeks he call me . Craig and Mr, Alex S, only three of us was on on the meeting I tell to Craig, to them what happen on the floor. After the meeting Craig tell me if there is a problem on the floor tell to him, After that meeting nothing happen until they terminate me , Before that they tell to me that they will call a meeting nothing happen since that that almost every week Craig is going to call me on the floor just to say to me I can terminate you every time ,

April 15 2020 I. Craig and Alex give me my termination paper Alex ask me if I had a question I answer Yes I ask Alex what happen to my complain. Alex ask Craig And he said nothing, Since 21 of January up to 15 April he did not make any action , Before that since I complain Jeff which his friend and neighbour if I have an issue on the floor tell it to him , how can I tell to him he did not make any action,”

Respondent presses s.399A application

[21] On 6 August 2020 the Respondent confirmed it wished to press its s.399A application. The Respondent also expressed its concerns regarding Mr Umerez’s repeated failure to copy in the Respondent to correspondence sent to the Commission.

[22] Whilst I acknowledge that the Respondent is also self-represented, Mr Umerez strikes me as a particularly unsophisticated self-represented party. I have ensured that whenever Mr Umerez failed to copy in the Respondent to correspondence sent to the Commission, it was forwarded to the Respondent at the earliest opportunity.

[23] I am satisfied the Respondent has not been prejudiced by Mr Umerez’s failure to properly copy in the Respondent to all correspondence.

Consideration

[24] 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.

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.”

[25] In the Full Bench decision of Mihajlovic v Lifeline Macarthur (2014) 241 IR 142, the Full Bench said the following regarding the use of the word ‘may’:

“Section 33(2A) of the Acts Interpretation Act 1901 (Cth) provides:

‘(2A) Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word may is used, the act or thing may be done at the discretion of the person, court or body.’

Section 40A of the [FW] Act provides that the Acts Interpretation Act as in force on 25 June 2009 applies to the [FW] Act, but that amendments after that date do not. Section 33(2A) came into effect on 18 December 1987, and therefore applies to the [FW] Act. Under s 2 of the Acts Interpretation Act, that Act applies inter alia to all Commonwealth Acts unless an Act is subject to a contrary intention”

[26] This approach was adopted by the Full Bench in the context of s.399A of the Act in Granas v Berkley Challenge Pty Ltd[2015] FWCFB 1795. It follows that the power to dismiss an application pursuant to s.399A is discretionary.

[27] Recently, Deputy President Sams set out the approach to considering s.399A applications in Thomas v Highway NN Pty Ltd [2020] FWC 3911, where the Deputy President said at [14]:

“Accordingly, s 399A of the Act requires a two-step process; firstly, a finding that one or more of the grounds set out are satisfied and secondly, if so, the consideration as to whether it is appropriate to exercise a discretion to grant the s 399A application and dismiss the unfair dismissal application”

[28] In Allen v Army and Air Force Canteen Service [2013] FWC 9209, Senior Deputy President Richards said the following regarding the exercise of discretion under s.399A of the Act:

“[36] The discretion vested in the Commission by way of s.399A of the Act is fettered only in so far as it must be exercised on the basis of a judgement as to whether an Applicant had, in the circumstances before the Commission, "unreasonably [...] failed to comply with [a Commission] direction [...] relating to the application."

[37] Section 399A(1) of the Act focuses the Commission on the circumstances of the Applicant's conduct for the purposes of the exercise of discretion. The Explanatory Memorandum is consistent with the statutory focus in that it indicates that:

the amendment is intended to address the small proportion of applicants who may pursue claims in an improper or unreasonable manner.

[38] The Explanatory Memorandum further states that:

the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant.

[39] The discretion is not one that should be read as being subject to the scope of considerations as might arise in Brodie Hanns (Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR see pages 299-300) or as are otherwise applicable by statutory direction under s.366 of the Act or s.394(3) of the Act.

[40] Further, it is not to be read into the jurisdiction, for example, that the Commission must establish that the Respondent has been exposed to a prejudice, or in some way disadvantaged or put to cost (though understandably such circumstances may well arise consequentially).

[41] Nor does the Respondent need to possess a defence against the claims as made in the originating application (as is said by the Full Bench in Re: Sayers to be required in relation to a dismissal of an application under s.587(1) of the Act, at the Commission's initiative).

[42] The discretion, therefore, to dismiss an application under s.399A(1) of the Act is exercised subject only to an objective evaluation of the Applicant's conduct, and more particularly, whether or not that conduct was unreasonable in the circumstances."

[29] I note that the above decisions set out the relevant principles and considerations and I respectfully adopt them.

[30] In this matter, the Respondent’s ground ‘A’ and ground ‘B’ go to ss.399A(1)(a) and 399A(1)(b), in that Mr Umerez failed to attend a conference and failed to file and serve materials in accordance with directions.

[31] I note under ground ‘A(a)’ the Respondent relies on the failure of Mr Umerez to attend a “telephone hearing” on 17 June 2020. On this date, the matter was scheduled for a conciliation with a Commission staff conciliator. This is a voluntary process to help resolve a dispute before the matter is assigned to a Member for conference or hearing. Accordingly, I have not taken this into account when considering whether to grant the s.399A application.

[32] Regarding ground A and ground B, I make the following findings of fact:

•  Mr Umerez failed to attend a conference before me on 14 July 2020 and failed to file and serve his materials in accordance with the directions issued 3 July 2020;

•  The relevant authorities demonstrate that caution must be adopted when dismissing an application under s.399A, particularly at an early stage (see Thomas v Highway NN Pty Ltd [2020] FWC 3911);

•  Mr Umerez’s explanation for non-attendance was put that he didn’t receive any telephone calls until nearly two hours after the conference, which I do not accept;

•  Prior to the s.399A application being made, the directions issued by me had been amended, requiring Mr Umerez to file material by no later than 3 August 2020;

•  Mr Umerez has only recently demonstrated a desire to prosecute his case, noting that he filed materials on my Chambers on 31 July 2020 and 3 August 2020.

[33] Mr Umerez’s attempt at preparing and filing a witness statement at [20] may be at best described as poor. As explained to Mr Umerez during the non-compliance hearing, the reason the Commission requires witness statements to be filed is that so, during the hearing of an application, the other party knows the evidence that will be before the Commission, and for the sake of efficiency. Giving substantial oral evidence on the day of the hearing, in both volume and the time involved is not how the Commission typically proceeds.

[34] Mr Umerez has made the slightest of efforts to provide evidence before the Commission. He has, however, made an effort following the issuing of the amended directions.

[35] I am not persuaded by ground ‘A’ relevant to the conference before me on 17 July 2020 that I should exercise my discretion to dismiss the substantive application pursuant to s.399A of the Act.

[36] Relevant to ground ‘B’, having issued amended directions, I am not satisfied that the ground has been satisfied to exercise my discretion to dismiss the substantive application pursuant to s.399A of the Act. If Mr Umerez had not filed the document referred to in [20], I would most certainly have exercised my discretion to dismiss the application. So while the document does not provide the Commission with as much evidence as the Commission requires to determine the application, and it will be necessary to hear oral evidence at the hearing, it demonstrated at least some effort on Mr Umerez’s part.

[37] The Respondent’s final ground (ground ‘C’) rests on the substantive application being ‘vexatious or lacking in substance’. This ground does not appear to go to s.399A of the Act but rather to s.587, which provides as follows:

“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.”

[38] The Respondent did not make any submissions or present any evidence regarding ground ‘C’. It is not clear on what basis the Respondent submits that the proceedings are ‘vexatious or lacking in substance’. I am unable to conclude at this stage of proceedings that the application is frivolous or vexatious or has no reasonable prospects of success.

Conclusion

[39] Having considered all of the matters set out above, I am not persuaded that I should exercise my discretion to dismiss the substantive application pursuant to s.399A of the Act.

[40] The s.399A application of the Respondent is refused. The matter will proceed to hearing to determine the outcome of the substantive application. I so order.

[41] Given what I understand to be Mr Umerez’s unsophisticated manner in these proceedings, he will be afforded a brief amount of time at the commencement of the hearing to provide any additional oral evidence. This brief amount of time will be very limited; it will not be expansive. If any additional time is required by the Respondent to obtain instructions in light of the brief in-chief evidence given during the hearing, this shall be properly afforded to the Respondent so as not to prejudice it.

COMMISSIONER

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