Gregory Williams v Pit N Portal Mining Services P/L

[2021] FWC 3728

[2021] FWC 3728

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Gregory Williams
v
Pit N Portal Mining Services P/L
(C2021/661)

DEPUTY PRESIDENT BEAUMONT PERTH, 30 JUNE 2021

Application to deal with contraventions involving dismissal; dismissed pursuant to s 587 of the Fair Work Act 2009.

1 Introduction

[1] Mr Gregory Williams has made a general protections application involving dismissal under s 365 of the Fair Work Act 2009 (the Act). The Respondent to this application is Pit N Portal Mining Services P/L (the Respondent). The matter was allocated to Chambers on 12 April 2021.

[2] The Respondent objected to Mr Williams’ application on the basis that Mr Williams had not been dismissed and remained an employee of the Respondent.

[3] Section 365 of the Act outlines when the Commission can deal with a general protections application involving dismissal. It requires that the person has been dismissed and that the dismissal was in contravention of the general protections part of the Act (Part 3-1).

[4] On receiving the application, the Commission is obliged to deal with this type of dispute other than by arbitration. 1 It may do this by mediation, conciliation or by making a recommendation or expressing an opinion.2 However, if there is a dispute about whether the applicant has been dismissed, the Commission must first determine that point before it can deal with the application further.3

[5] As there was a dispute over whether Mr Williams had been dismissed, the matter was listed for hearing to determine the issue, and directions were issued.

[6] The directions and a Notice of Listing were issued on 13 April 2021. The matter was listed for a directions hearing, by telephone, at 2.00pm, on Wednesday, 28 April 2021.
[7] Mr Williams did not present for the directions hearing on 28 April 2021. On that same day, Chambers attempted to contact Mr Williams on three occasions between 1.58pm to 2.01pm by telephone. One voice message was left. Mr Williams had not submitted a request for an adjournment. He was subsequently directed to file submissions on why he had not attended the directions hearing listed on 28 April 2021.

[8] Mr Williams responded to the email of 28 April 2021, stating:

I extend my apologies for missing appointment of the 28th April.

My travel south to assist my son in a family matter and the Perth Covid restrictions were a distraction ,and I simply over looked my responsibility to maintain schedule appointments, including a medical appointment.

[9] The matter was relisted for a directions hearing, by telephone, on Tuesday, 4 May 2021, at 12.00pm. Directions were subsequently issued. On 1 June 2021, Mr Williams was informed that he had not complied with the directions which had required him to submit his materials by 4.00pm on 24 May 2021. Eventually, Mr Williams responded to Chambers’ email dated 1 June 2021.

[10] On receipt of the materials from the parties, a conference was convened on 24 June 2021. The purpose of the conference was to ascertain whether the Applicant wanted to proceed with the arbitration that had been scheduled for the following day. The Applicant was informed that while he had eventually filed materials in response to the directions issued on 10 May 2021, no outline of submissions or witness statement had been filed. Instead, the Applicant had taken to filing ‘rough’ notes he had scribed about events, which in parts were difficult to follow. Both parties were informed that the Commission can only base its decision on the evidence provided. The Applicant was provided with a period to contemplate whether he wanted to proceed to arbitration.

[11] Mr Williams confirmed that he wanted to proceed through to arbitration relying on the materials filed. The arbitration was rescheduled to Tuesday, 29 June 2021 at 10.00am, and in light of Mr Williams’ purported lack of access to the internet, the parties were informed that the arbitration would take place via telephone.

[12] On Tuesday, 29 June 2021, my Associate contacted Mr Williams at 9.41am for the purpose of dialling in the parties for the hearing. Mr Williams notified my Associate that at this time he was present in a regional area of Western Australia and had poor phone reception. He requested that the hearing be vacated and rescheduled. My Associate asked the Applicant to place his request in writing. The Applicant was able to do this and sent an email to Chambers time stamped 9:44am on 29 June 2021:

The applicant is in a unreliable phone service area and advises the call will no doubt unsuccessful,  the applicant will be at this location for a period of 2 weeks.The applicant apologizes for this and asks for leave to be in better location.

[13] Having considered Mr Williams’ request, I declined to grant it and Mr Williams was informed that the hearing would proceed at the scheduled time of 10.00am. My reason for declining the request was that the request was made only at such time when Chambers contacted Mr Williams, prior to that time Mr Williams had provided no indication of his unavailability due to poor phone reception. This is notwithstanding having held a conference with Mr Williams on 24 June 2021 and alerting him that the arbitration would proceed on 29 June 2021, if Mr Williams held the view that he would still like to press his application.

[14] Mr Williams was called at 9:58am, 9:59am, 10:04am, 10:05am, 10:06am, 10:08am, and 10:09am on 29 June 2021. He did not answer the phone calls and the matter proceeded to hearing in the absence of Mr Williams given the Respondent was on the telephone call waiting.

[15] The Respondent was informed of Mr Williams’ failure to attend the hearing, noting that Mr Williams had submitted a request at approximately 20 minutes prior to the hearing to have it adjourned. That request had been declined, and therefore, the Commission would now, of its own initiative, consider dismissing Mr Williams’ application under s 587 of the Act. The Respondent was proffered the opportunity to advance any submissions in this respect and simply noted that it agreed that Mr Williams’ application should be dismissed.

[16] By way of background, it is observed that Mr Williams had commenced employment with the Respondent on 8 January 2021 in the position of All Rounder at the Great Western Project. He was engaged on a full time basis, working 12 hour shifts on a roster cycle of 14 shifts on and 7 shifts off. Primarily, Mr Williams’ duties involved operating heavy mobile earthmoving equipment. He had remained on the site for a period of 4-5 days, after which time arrangements were made to transport him home due to poor mental health. Mr Williams purported that he had expressed concerns about occupational and safety measures to the Respondent and that he been demoted from a supervisory position he had been appointed to whilst being on site for 1-2 days.

[17] Ms Hutton, HR Advisor for the Respondent, had noted in her witness statement that no termination letter had been provided to Mr Williams, he was not paid out any final termination payment, and as all attempts to contact Mr Williams were unsuccessful after his departure from site, the Respondent had placed him on unpaid leave. 4

[18] Ms Hutton’s witness statement detailed that after the conference held by the Commission on 31 March 2021, and in light of Mr Williams expressing a desire to resume duties after his unpaid leave, albeit not at the Great Western Project, Mr Williams had been offered transfers into four different positions. Two offers were made on 1 April 2021 and were declined, a further offer of transfer was provided on 3 May 2021 and was declined, and a fourth offer of transfer was provided on 9 May 2021, which Mr Williams had purportedly accepted on 19 May 2021, notwithstanding it was work on the Great Western Project. Following Mr Williams’ acceptance of the position, the Respondent commenced the site access process to return Mr Williams to the site, which included a drug and alcohol screen. Mr Williams returned a drug test result that included readings that required further testing for ‘amphetamine type substance’ and ‘benzodiazepines’.

[19] By way of observation only, Mr Williams had performed work for the Respondent for a total of 4-5 days through the course of his employment.

2 Consideration

[20] Section 587 of the Act 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.

[21] In the decision of Mcleod v Kulgera Trading Company Pty Ltd 5 the Vice President dismissed an application to deal with contraventions involving dismissal under s 365 of the Act, pursuant to the dismissal provision in s 587 of the Act. In doing so, the decision of Commissioner Gooley (as she was then) in Rebecca Tomas v Symbion Health6 (Tomas) was relied upon and reference was made to the following passages regarding the operation of s 587:

[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and (c) do not limit Fair Work Australia’s power to dismiss matters for other reasons.

[58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter.”

[22] While apparent that the decision of Tomas addressed an unfair dismissal application, the Vice President considered the reasoning applicable to an application under s 365 notwithstanding the limitation set out s 587(2) of the Act. The decision of Tomas has been subsequently followed, and other decisions of this Commission have relied upon s 587 to dismiss applications brought under s 365. 7

[23] In line with other decisions of this Commission, it is apparent that the words at the commencement of s 587(1), namely, ‘[W]ithout limiting when FWC may dismiss an application,’ make clear that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) or (c).

[24] The power to dismiss an application where there is an unreasonable or unexplained non-compliance with the Commission’s listings or directions is exercisable by the Commission. This is evident by the language used in s 587(3)(a) of the Act. It is accepted that there is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at her or his initiative. 8

[25] In Diane Porteous v G. Kakafikas and A.G. Bek Partnership T/A Yarra Glen Pharmacy 9(Porteous), a matter involving an unfair dismissal application,it was observed that ‘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’.10 The Deputy President in Porteous, whilst acknowledging that the Act provided for application for costs, observed there was a high bar for success with such applications and consequently they were rarely brought. Further, it was not always the case that the cost was pecuniary per se. The Deputy President expressed that what was oft expended was valuable time that could have been put to productive use.11

3 Conclusion

[26] The Commission is obliged to perform its functions and exercise it powers in a manner that is fair and just. 12

[27] Mr Williams was aware of what was required of him regarding compliance with the directions and attendance at the hearing. He had been informed on Thursday, 24 June 2021 that the matter would proceed to hearing on 29 June 2021, unless he indicated otherwise. He did not. Mr Williams thereafter failed to notify the Commission of his unavailability for the hearing on 29 April 2021 and did not inform the Commission of his request to delay the hearing until some 20 minutes beforehand, in circumstances where contact was made with him. The Respondent was prepared with its case, its witnesses available.

[28] Given the circumstances described above, I am satisfied that I should exercise my discretion under s 587(3)(a) of the Act and dismiss the Applicant’s application to deal with contraventions involving dismissal. 13 The Applicant has undertaken a deliberate decision not to comply with the Commission’s directions as detailed and has failed to present for hearing. Both actions were necessary to prosecute the case that the Respondent had dismissed him.

[29] There had been no forewarning that Mr Williams would decline to participate in the hearing in the manner he did. Mr Williams’ conduct has already required the Respondent to expend resources in responding to a claim that Mr Williams does not seem to have any intention of following through or alternatively wishes to delay unreasonably. Taking into account fairness, justice, equity and good conscience, Mr Williams was provided the opportunity to prosecute his case and he failed to do so.

[30] The application is therefore dismissed. An Order 14 is issued to this effect.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR731131>

 1   Fair Work Act 2009 (Cth) s 368.

 2   Ibid.

 3   Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 [67].

 4   Witness Statement of Shannon Hutton dated 17 June 2021.

 5   [2014] FWC 2112.

 6   [2011] FWA 5458.

 7   Kieran Hawes v Plastic Planet Pty Ltd[2014] FWC 6457; Amy-Lee Guest v Waddell Family Investments Pty Ltd trading as Pacific Gardens Van Village [2014] FWC 4607.

 8   Peter Viavattene v Health Care Australia[2013] FWCFB 2532 [39].

 9   [2019] FWC 6264 [19].

 10   Ibid.

 11   Ibid.

 12   Fair Work Act 2009 (Cth) s 577(a).

 13   Keith Le Mon v Silverstone Recruitment[2019] FWC 7413.

 14   PR731161.