Ethan Blair v Viva Energy Retail Pty Ltd
[2023] FWC 1735
•17 JULY 2023
| [2023] FWC 1735 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ethan Blair
v
Viva Energy Retail Pty Ltd
(U2023/4506)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 17 JULY 2023 |
Application for an unfair dismissal remedy – non-responsive and non-compliant applicant – s 587 motion to dismiss – application dismissed
These are published reasons for a decision delivered ex tempore on 17 July 2023.
On 23 May 2023 Mr Ethan Blair (Mr Blair or the applicant) applied to the Commission under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy against his former employer Viva Energy Retail Pty Ltd (Viva Energy or the respondent).
At the time of making the application Mr Blair was represented by his union, the Shop Distributive and Allied Employees Association (SDA).
Viva Energy opposed the application.
Background
The matter was listed for conciliation before a Commission staff member on 3 July 2023. A Notice of Listing confirming the date and time of the conciliation was sent to the parties at their nominated email addresses.
Viva Energy attended the conciliation, as listed.
Mr Blair did not attend the conciliation. The conciliator tried on two occasions to contact Mr Blair, leaving messages on the phone number supplied with his application. Mr Blair’s representative, the SDA, which also attended, tried to contact Mr Blair but could not do so.
The conciliation was unable to proceed in the absence of Mr Blair.
The matter was subsequently allocated to me.
On 10 July 2023 I conducted a directions hearing.
Viva Energy and Mr Blair’s then representative the SDA attended. Mr Blair did not. My chambers tried to contact Mr Blair, leaving messages on the phone number supplied. They were not responded to. The SDA had no current instructions from Mr Blair as it had not been able to make contact with him. The directions hearing was unable to proceed further. It was adjourned to 17 July 2023.
I issued the following directions on 10 July 2023:
“[1] The applicant Ethan Blair is DIRECTED to attend in person a re-listed Directions Hearing listed for 3.30pm (ACST) Monday 17 July 2023 (see attached Notice of Listing).
[2] The applicant Ethan Blair is DIRECTED to provide updated instructions to his union representative (SDA) in advance of the re-listed Directions Hearing.
[3] If the applicant Ethan Blair fails to attend in person at the re-listed Directions Hearing as directed, the Commission will at that hearing consider on its own motion whether the application should be dismissed under s 587 of the Fair Work Act 2009 (Cth) (FW Act) on the ground that it is not being actively prosecuted by the applicant in accordance with minimum obligations required or on such other ground as may be appropriate.”
These directions were sent to Mr Blair to his last advised email address, as well as to his then representative the SDA.
On 17 July 2023, prior to the re-scheduled directions hearing, my chambers received the following advice from the SDA:
“Since the last Directions Hearing, the applicant has not replied to our calls or emails and we have not received any instructions from our previous correspondence to progress this matter.
Accordingly, please find attached a notice that the SDA is ceasing to act for the applicant.
Should Deputy President Anderson request my attendance I am happy to dial in to the scheduled Hearing later today.
By way of service the applicant and respondent is CC’d into this correspondence.”
In response to the SDA’s advice, my chambers indicated to Mr Blair and the employer that the re-listed directions hearing would proceed, and that the SDA would not be required to attend as it had ceased to act in the matter.
Mr Blair failed to attend the re-listed directions hearing on 17 July 2023. My chambers tried to contact Mr Blair, leaving messages on the phone number supplied. They were not responded to.
Viva Energy attended.
After hearing from Viva Energy, I determined that the application be dismissed under s 587 on the ground that it is not being actively prosecuted by Mr Blair in accordance with minimum obligations required of an applicant. The following are my reasons.
Consideration
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)
Mr Blair was represented by the SDA at the 3 July 2023 listed conciliation and the 10 July listed directions hearing. However, his failure to be present in person or to have provided instructions to his representative meant that neither proceeding could deal with its stated purpose. Thus, Mr Blair’s failure to attend or relevantly instruct his representative on his interests put both the Commission and the employer to unproductive cost and effort.
Mr Blair’s subsequent failure to attend the re-listed directions hearing on 17 July 2023 was a breach of my direction of 10 July 2023 that he do so.
Mr Blair’s failure to provide updated instructions to the SDA in advance of the re-listed directions hearing on 17 July 2023 was also a breach of my direction of 10 July 2023.
The consequence of these failures was that, again, Mr Blair’s conduct put both the Commission and the employer to further unproductive cost and effort.
It is well-established that an applicant has an obligation to comply with directions and actively and attentively prosecute their claim. These 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.
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]
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 on its own motion (s 587) or to do so for specific non-compliance on application by a respondent employer (s 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…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 Blair has been non-responsive to attempts to progress his application. It is disrespectful to the process Mr Blair instituted to not attend proceedings and comply with directions.
Mr Blair was put on notice that his application is at risk of being dismissed yet still failed to be responsive.
I am satisfied, in light of Mr Blair’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 on the Commission’s own motion. The employer supported dismissal on this basis.
Conclusion
Mr Blair’s application U2023/4506 is dismissed under s 587. An Order[4] to this effect is issued in conjunction with the publication of this decision.
DEPUTY PRESIDENT
Appearances:
No appearance by the applicant
Mr C Piotti for the respondent
Hearing details:
Adelaide (by telephone)
17 July
[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] PR764309
Printed by authority of the Commonwealth Government Printer
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