Grenwell Pinto v Westpac Banking Corporation

[2022] FWC 989

[2022] FWC 989

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Grenwell Pinto

v

Westpac Banking Corporation

(C2022/258)

DEPUTY PRESIDENT YOUNG MELBOURNE, 29 APRIL 2022

Application to deal with contraventions involving dismissal– extension of time

– application dismissed pursuant to section 587.

1. On 31 December 2021 Mr Grenwell Pinto (Applicant) lodged an application pursuant to section 365 of the Fair Work Act 2009 (Act) (Application), for the Commission to deal with a general protections dispute involving dismissal from his employment with Westpac Banking Corporation (Respondent).

History of the Application

1. Pursuant to section 366(1) of the Act a general protections application involving dismissal must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to section 366(2) of the Act. It is uncontested that the Applicant’s dismissal took effect on 7 December 2021. Accordingly, the period of 21 days ended at midnight on 28 December 2021 and the application was therefore lodged 3 days out of time.

1. The Applicant did not acknowledge the delay in filing in the Application, however, the delay was raised in the Respondent’s Form F8A. The Applicant requested that the Commission allow a further period for the application to be made pursuant to section 366(2) (Extension of Time Application). The Respondent opposed the Extension of Time Application. Additionally, the Respondent raised a further jurisdictional objection, being that Mr Pinto had resigned and was therefore not dismissed as that term is defined in section 386 of the Act (No Dismissal Objection). The matter failed to resolve at a Staff Conciliation and accordingly on 28 March 2022 the matter was listed for a directions hearing/mention before me on 1 April 2022.

1. On 1 April 2022 at 9.00 am the directions hearing/mention was held by telephone (Telephone Mention). At the Telephone Mention the process and requirements for the determining of the Extension of Time Application and the Jurisdictional Objection (collectively, Jurisdictional Matters) were explained to Mr Pinto. In particular, it was explained to Mr Pinto that the Jurisdictional Matters must be determined prior to the Application proceeding further and that the hearing to be held was to determine those matters and was not a hearing directed to the merits of the Application. Following the Telephone Mention directions were issued in relation to the filing of material by the parties (Directions). Mr Pinto was also provided with copies of section 365, 366 and 386 of the Act and template applicant outline of argument and witness statement documents to assist him in preparing his material. The Directions required Mr Pinto to file his material in relation to the Extension of Time Application by 5 pm 20 April 2022. Mr Pinto failed to comply with the Directions.

1. At 2.02 pm on 22 April 2022 solicitors for the Respondent wrote to Mr Pinto, copying in my chambers, stating that no materials had been received by them from him in accordance with the Directions and asking whether he intended to file any material. At 2.39 pm that day Mr Pinto wrote to my chambers stating that he had been unwell and seeking an extension of time for the filing of his materials. At 3.18pm that day my Associate wrote to Mr Pinto providing him with a further period of time until 5.00 pm Tuesday 26 April 2022 to file his materials. Amended directions (Amended Directions) were issued at that time to reflect the extension of time provided to Mr Pinto. That correspondence included the following statement:

“No further extension of time will be granted without substantiated reasons to support a request for an extension of time.”

1. At 3.58pm that day Mr Pinto wrote to my chambers seeking, inter alia, that the Commission provide him with access to his “Westpac email mailbox”. At 4.52 pm my Associate responded to Mr Pinto providing him a hyperlink to a Form F52 and associated information regarding applying for an order to produce documents or information and to the Commission’s practice note in relation to orders to attend and orders to produce. That correspondence included the following statement:

“Your materials are to be filed by no later than 5.00pm Tuesday, 26 April 2022 in accordance with the amended directions issued today.”

1. At 11.16 am and 3.58 pm on 22 April 2022 Mr Pinto filed a first notice to produce (First Notice) and a further notice to produce (Further Notice).

1. At 4.56 pm on 26 April 2022 my Associate wrote to the parties listing the matter for mention at 9.15 am on Wednesday 27 April 2022 to address the First Notice and Further Notice (Second Mention). That correspondence confirmed that an extension of time would not be granted for the filing of material pending the Second Mention occurring.

1. Mr Pinto did not file any material in relation to the Extension of Time Application by 5 pm on 26 April 2022 as required by the Amended Directions. Indeed, to date Mr Pinto has not filed any material at all in support of the Extension of Time Application.

1. At 2.32 am on 27 April 2022 Mr Pinto wrote to my chambers saying that he would not be able to attend the Second Mention “due to the very short notice”. That correspondence continued as follows:

“I’m sorry, but I was sick and isolated from 9th April evening- until wed 20th April 2022(attached), followed by another long consultation on 21st April 2022(attached) and working on the weekend and working until 10pm Adelaide time 26th April 2022.

I have spent my weekend talking to ex colleagues to testify and gathering evidence after our communication on Friday 22nd April 2022.

Also, I have to be in the right mindset to consume the information that has been sent across; and In order for me to get the statement as per the format as laid out in the direction, I will need time at least until the 15th May 2022.

I beg your pardon, and earnestly request you to consider the fact that I am a common man with other responsibilities, job and chores.

I;m [sic] hoping that you will understand. Thank you in advance.”

1. Attached to that email were copies of text messages providing, relevantly:

·     that Mr Pinot had been cleared as a positive COVID-19 case on 19 April 2022 and was not required to isolate after that time; and

·     a medical appointment at 9.45 am on 21 April 2022.

1. Mr Pinto also provided a photograph of a medical certificate which provided that Mr Pinto was unable to work from 8 April 2022 until 12 April 2022, inclusive, due to a medical condition.

1. At 9.02 am on 27 April 2022 my Associate wrote to Mr Pinto advising him that the Second Mention would proceed as listed and would address the First Notice and the Further Notice and his failure to comply with the Directions and Amended Directions.

1. Mr Pinto was unable to be contacted for the Second Mention. Accordingly, Mr Pinto did not attend the Second Mention and it proceeded in his absence.

1. At 5.07 pm on 27 April, I wrote to Mr Pinto refusing his application for an order for the production of documents as set out in the First Notice and the Further Notice and setting out relevant matters in relation to his non compliance with the Directions, the Amended Directions, his failure to attend the Second Mention and, as a consequence, his failure to prosecute the Application. That correspondence provided Mr Pinto with one final opportunity to file material in support of the Extension of Time Application (Final Email).

1. The Final Email directed Mr Pinto to file his material in relation to the Extension of Time Application by 12.00 pm on Friday 29 April 2022. Further amended directions were issued as to this (Further Amended Directions) and were attached to that email. The Final Email also included the following:

“…
Consideration

I accept that Mr Pinto has had a period of illness from 8 April 2022 to 12 April 2022 and may have been precluded from preparing his materials during this period. However, that does not provide an explanation for the period 1 April 20022 to 7 April 2022 or the period 13 April 2022 to date. There is no explanation as to why Mr Pinto could not commence preparation of his materials prior to 8 April 2002 or continue that after 12 April 2022. That Mr Pinto was isolating until 19 April 2022 does not provide any explanation for this. Further, there is simply no explanation as to why Mr Pinto could not file his materials in accordance with the Amended Directions and the extension of time provided to him on 22 April 2022. That Mr Pinto was working and had an appointment on 21 April 2022 does not explain his failure nor provide an adequate or acceptable explanation. Nor does the fact that Mr Pinto has “other responsibilities, job and chores”. Finally, I note that Mr Pinto was able to file the First Notice and the Further Notice during this period.

Intention to dismiss

Mr Pinto has failed to comply with the Directions, failed to comply with the Amended Directions and failed to attend the Second Mention. I do not consider he has an acceptable, reasonable or adequate explanation for his continued non compliance with the Commission’s directions and has been advised since 22 April 2022 that no further extensions will be granted without substantial reasons. I note that the Respondent has complied at all times with the Commission’s directions. Notwithstanding that, I will provide Mr Pinto with one final opportunity to file his material.

Accordingly, Mr Pinto is directed to file to file his material in relation to the extension of time question by 12.00 pm on Friday 29 April 2022 in accordance with the attached Further Amended Directions. Having made the Application, the onus is on Mr Pinto to prosecute it. Should Pinto fail to file his material by 12.00 pm on Friday 29 April 2022, subject to any submissions Pinto may wish to make as to why I ought not do so, I intend to dismiss the Application for want of prosecution pursuant to section 587 of the Act.

…”

1. Mr Pinto did not file any material by 12.00 pm on 29 April 2022 as directed in the Further Amended Directions and no materials have been filed by him to date in support of the Extension of Time Application. Further, Mr Pinto has not otherwise communicated with Commission or my chambers and has not provided any submissions as to why the Application should not be dismissed.

Legislative power to dismiss

1. 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.”(emphasis added)

1. Section 587 of the Act sets out matters that the Commission must take into account when performing functions or exercising powers, including those under section 587. Section 578 provides as follows:

“578 Matters the FWC must take into account in performing functions etc.

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

a) the objects of this Act, and any objects of the part of this Act; and
b) equity, good conscience and the merits of the matter; and
c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”

Consideration

1. I consider that the inclusion of the words “Without limiting when the FWC may dismiss an application” in section 587 of the Act confers a sufficiently broad discretion to allow an application under section 365 to be dismissed for want of prosecution by an applicant, in an appropriate case. However, I consider that such discretion ought be exercised with caution and having regard to the matters the Commission is required to take into account in the performance of its functions.

1. The objects of the general protections provisions at Part 3-1 of the Act include to protect workplace rights and provide protection from workplace discrimination. The Commission’s role in a general protections claim involving dismissal is to assist in dispute resolution provided application was made within the statutory timeframe or such further time as the Commission allows.

1. The Application was not made within the statutory time frame required by section 366(1) of the Act and, accordingly, may only be entertained if the Commission is satisfied that exceptional circumstances exist and a further period of time is allowed pursuant to section 366(2). As the historical context reveals, Mr Pinto has failed to file any material in support of the Extension of Time Application. In this regard, I note that Mr Pinto failed to file material as directed on 20 April 2022 and, again, on 26 April 2022. Further, Mr Pinto failed to file any material as directed by 12 pm on 29 April 2022 notwithstanding having been informed that should he fail to do so the Application would be dismissed. Further, Mr Pinto also failed to attend the Second Mention. I infer from these matters that Mr Pinto does not intend to file any material in support of the Extension of Time Application and thereby seek to prosecute the Application. For completeness, I do not consider that Mr Pinto is precluded from filing material in support of the Extension of Time Application because of the refusal of his application for an order for the production of documents as sought in the First Notice and the Further Notice.

1. With regard to the objects of Part 3-1 and taking into account fairness, justice, equity and good conscience for both employers and employees, I consider that the Commission has afforded ample opportunity to the Applicant to seek an extension of time and ultimately prosecute the Application. Mr Pinto was placed on notice of the consequences of his non-compliance and still failed to respond. The Applicant’s non-participation in the Commission’s processes has required the Respondent to expend resources in continuing to respond to a claim that the Applicant no longer seems to have any intention of prosecuting.

1. For the above reasons, I have determined that the Application should be dismissed. I order accordingly.

DEPUTY PRESIDENT

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