Ellery Tillack v Padman Water Solutions Pty Ltd
[2024] FWC 1609
•20 JUNE 2024
| [2024] FWC 1609 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ellery Tillack
v
Padman Water Solutions Pty Ltd
(U2024/1775)
| COMMISSIONER JOHNS | MELBOURNE, 20 JUNE 2024 |
Application for an unfair dismissal remedy - Section 399A - Failure to comply with a direction of the Commission - application granted.
Background
This decision concerns an application made under s.399A of the Fair Work Act 2009 (Cth) (FW Act) by the Padman Water Solutions Pty Ltd (the Applicant Employer) to dismiss an unfair dismissal application brought against it by Mr Ellery Tillack (the Respondent Employee).
For the reasons that follow, the Applicant Employer’s application under s.399A is granted and the Respondent Employee’s application for an unfair dismissal remedy is dismissed.
Procedural History
On 14 June 2024, my Chambers received an email from the Applicant Employer stating as follows,
‘Dear Associate
We refer to subject proceedings, and to the email sent to the parties on 13 June 2024 by the Fair Work Commission (Commission), requiring the Applicant to explain his non-compliance with the Directions of Commissioner Johns of 29 May 2024.
Background
On 19 February 2024, the Applicant filed an unfair dismissal application the subject of Commission matter U2024/1775 (Application).The Application was scheduled for a conciliation conference for 19 March 2024. On 18 March 2024, on behalf of the Respondent, we sent an email to the Commission to request that the conciliation conference be vacated, as the Respondent had been notified that the Applicant had been involved in a serious car accident. The conciliation conference ultimately did not proceed due to the Commission not being able to contact the Applicant.
A further conciliation conference was scheduled for 29 April 2024. Without explanation, the Applicant failed to attend that conciliation conference.
On 3 May 2024, the Commission sent the Applicant an email, directing him to respond by 10 May 2024 to indicate whether he wished to continue with the Application. The Applicant provided no response to this email.
On 14 May 2024, the Commission sent the Applicant a further email, directing him to respond by 17 May 2024 to indicate whether he wished to continue with the Application. The Applicant provided a response to this email, indicating that he wished to continue with the Application, and the matter was then re-allocated to Commissioner Johns.
A Mention / Directions hearing was scheduled for 29 May 2024 before Commissioner Johns. Without explanation, the Applicant failed to attend the Mention / Directions hearing.
On 29 May 2024, Commissioner Johns issued Directions to the parties in respect of the future conduct of the matter, requiring the Applicant to file witness material and submissions in support the of the Application by 4pm on 12 June 2024. The Applicant did not file material as directed.
On 13 June 2024, the Commission sent an email to the Applicant, requiring the Applicant to explain his non-compliance with the Directions by 4pm on 13 June 2024. The Applicant has provided no response to that email, or in the alternative, we have not been copied on that email if one was sent.
Position of the Respondent
In our submission, the Respondent has been patient and accommodating in dealing with, and responding to, the Application, and has attended all Commission listings as required.
In circumstances where the Applicant has failed to attend Commission listings, to comply with Directions of the Commission, and to provide any explanation for that non-compliance, the Respondent submits that the Application should be dismissed by the Commission.
So that the Respondent is not put to further expense, time, and inconvenience, we respectfully request that the Respondent not be required to make a formal application to the Commission for the Application to be dismissed pursuant to section 399A of the Fair Work Act 2009 (Cth), and instead, that the Commission considers exercising its general powers and dismisses the Application in its entirety, on the papers, and without the need for any further formality.
If the Commission is not minded to exercise its general powers in these circumstances, please let us know so that the Respondent can prepare a formal application to the Commission.’
The Applicant Employer’s email, in particular the background section is an accurate reflection of the procedural history of the matter. On the same day, my Chambers replied to the parties indicating that I was not minded to use my general powers to dismiss the application, instead I waived compliance with the Fair Work Commission Rules 2024 and accepted the Applicant Employer’s email as an effective s.399A application. Within the same email, a letter was attached which afforded the Respondent Employee until 5PM (Melbourne time) on 19 June 2024 to provide his reason/s for non-compliance. The letter expressly provided that if no material is filed by the deadline or the explanation is not reasonable, his unfair dismissal application will be dismissed (the same was reiterated in the body of the email).
The Respondent Employee 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 the Respondent Employee, steps four and five were not enlivened. I must now determine the s.399A application before me.
Because there is no evidence to the contrary, I accept the Applicant Employer’s submissions and find that the Respondent Employee’s actions were unreasonable.
Conclusion
The Applicant Employer’s s.399A application is granted.
Pursuant to s.399A of the FW Act, the Commission, as presently constituted, dismisses the Respondent Employee’s application for an unfair dismissal remedy on the basis that the Respondent Employee has unreasonably failed comply with the directions of the Commission.
An order giving effect to this decision will be issued simultaneously with this decision [PR776211].
COMMISSIONER
[1] [2021] FWCFB 875, [30] & [57] – [58].
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