Guido Michel v BHP Group Ltd
[2021] FWC 3282
•16 JUNE 2021
| [2021] FWC 3282 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Guido Michel
v
BHP Group Ltd
(U2020/12376)
DEPUTY PRESIDENT BEAUMONT | PERTH, 16 JUNE 2021 |
Application for an unfair dismissal remedy – s 399A – dismissed.
[1] On 14 September 2020, Mr Guido Michel (the Applicant) made an unfair dismissal application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (the Act). He said he had been unfairly dismissed by BHP Group Ltd (the Respondent).
[2] In its Employer Response, 1 the Respondent alerted the Commission that it objected to the unfair dismissal application on the basis that the Applicant had, at no time, been employed by it. In his unfair dismissal application, the Applicant acknowledged ‘I am [sic] embedded contractor via Hays, but contacted [sic] to BHP’.
[3] Over the course of eight months, the matter has not yet progressed to a hearing on the jurisdictional objection. The Respondent argues that on two occasions the Applicant has been non-compliant with directions issued, and on that basis, applies for the dismissal of the unfair dismissal application under s 399A of the Act.
[4] The Respondent also contends that in circumstances where the Commission declined to make an order for the category of document sought by the Applicant (referred to by the Applicant as the ‘Dismissal Statement from BHP’), and the response of the Applicant was such that he was ‘unwilling to submit either the Document List or the Statement of Evidence without the Dismissal Statement from BHP’, the Applicant has evinced a clear intention not to file evidence in support of his case. The Applicant’s failure to address the critical contention that he was in fact employed by the Respondent was of particular concern, said the Respondent. The Respondent argues that absent a sufficient evidentiary foundation, the Applicant’s application plainly has no reasonable prospects of success and ought to be dismissed pursuant to s 587(1)(c) of the Act.
[5] Relying again on the Applicant’s failure to file evidence on which the Commission may make a finding that the Applicant was an employee of the Respondent, the Respondent asserts that the ‘main application’ is also frivolous or vexatious in the sense that there is no ‘real question to be determined’. 2 Therefore, it ought to be dismissed pursuant to s 587(1)(b) of the Act. On this point, the Respondent correctly observes that whilst its dismissal application did not refer to s 587(1)(b) of the Act, the Commission had advised the parties it would consider dismissing the unfair dismissal application on its own initiative pursuant to its power under s 587(3)(a) of the Act.
1 Background
[6] The Applicant declined to participate in a conciliation conference. Accordingly, directions were issued on 14 October 2020. There was nothing unusual about the directions. They simply required the Applicant to file his materials on the jurisdictional issue by 22 October 2020. The parties were informed of the importance of complying with the directions, noting that non-compliance could give rise to adverse consequences.
[7] On 20 October 2020, the Applicant emailed Chambers asking whether he would need to apply for an extension of time if he was unable to file his materials by 22 October 2020. A response from Chambers was not forthcoming and the Applicant did not file his materials by the required deadline. Therefore, Chambers issued revised directions affording the Applicant an extension until 26 October 2020 in which to file his materials. Again, the parties were informed of the importance of complying with directions.
[8] On 22 October 2020, the Applicant made an application to seek the production of a category of document concerning his dismissal. That category of document, as noted, was referred to as ‘the Dismissal Statement from BHP’. On 23 October 2020, I declined to issue the order sought. 3
[9] On 26 October 2020, the Applicant filed an ‘Outline of arguments’ and, in doing so, declared in that document that he was ‘unwilling to submit either the Document List, or the Statement of Evidence, without the Dismissal Statement from BHP’. 4
[10] Later in the day on 26 October 2020, the Respondent emailed Chambers applying for an order under ss 399A and 587 of the Act. The basis for the application was set out in the following terms:
In circumstances where:
a. the Commission has put the Applicant on notice as to the potential consequences of non-compliance with the Directions;
b. the Applicant has already been afforded an extension of time to file his materials;
c. the Applicant has declared that he is “unwilling to submit either the Document List, or the Statement of Evidence, without the Dismissal Statement from BHP”; and
d. the Commission has already refused the Applicant’s application for an order for production of the “Dismissal Statement”,
the Applicant has not only failed to comply with a direction of the Commission but has, in the Respondent’s submission, brazenly declared his intention not to do so.
[11] Thereafter, directions were issued for the parties to file materials in response to the Respondent’s application to dismiss the unfair dismissal application. The Respondent’s application was listed for hearing on 3 November 2020. However, the hearing was vacated when the Applicant filed a notice of appeal concerning my declining to issue an order for the production of ‘the Dismissal Statement from BHP’.
[12] The Applicant later discontinued that appeal, and the matter lay dormant for a period due to the Applicant’s ill health. However, by email dated 16 December 2020, the Applicant noted that if the Respondent was interested in resolving the case sooner rather than later, it could finalise it via a pay-out. Otherwise, it would have to wait until he had regained his health. 5
[13] On 25 January 2021, Chambers contacted the Applicant requesting a medical certificate from his medical practitioner, stating the period in which the Applicant would be unable to participate in the matter before the Commission. The Applicant provided a medical certificate to Chambers that noted that the Applicant would be unfit to appear in ‘court’ from 4 December 2020 to 4 April 2021 inclusive.
[14] By 5 April 2021, the Commission had received no correspondence or communication from the Applicant regarding the progress of his application. On 10 May 2021, Chambers wrote to the Applicant highlighting that his medical certificate had expired and asked whether he intended to discontinue or continue his unfair dismissal application. It was explained that if he wished to continue his unfair dismissal application, he should inform Chambers promptly so that the matter could be programmed for a hearing regarding the Respondent’s dismissal application under ss 399A and 587 of the Act.
[15] The Applicant responded on 10 May 2021, again inviting the Respondent to settle the matter and, in short, noting that he would continue with the application if no such offer was forthcoming.
[16] On 19 May 2021, the parties were notified that the matter would proceed to hearing regarding the Respondent’s dismissal application. The Applicant subsequently provided a medical certificate which certified him as unfit to appear in court from 21 May 2021 to 21 August 2021.
[17] On 24 May 2021, Chambers issued directions, instructing the parties that the Respondent’s application under ss 399A and 587 would be determined on the papers given that the Applicant was ‘unfit to appear in court’. The parties were also placed on notice that the Commission, on its own initiative (see s 587(3)(a)), would consider whether the application should be dismissed under ss 587(1)(c) and 587(1)(b) of the Act. The parties were directed to file further written materials; the Applicant by 28 May 2021 and the Respondent by 2 June 2021.
[18] The Applicant responded to the directions of 24 May 2021, noting that the upcoming trial date had placed him at risk and therefore he had been declared medically unfit. The Applicant continued that he would consider going ahead with the hearing regardless, noting it an ‘inhumane and brutal act’, which constituted an ‘act of bullying, of worst proportions’. 6
[19] A further email from the Applicant was received on 25 May 2021, in which he emphasised assertions of workplace bullying and a false sacking. The Applicant also levelled allegations that the Commission was biased towards the Respondent and its intent was that his case would never be heard notwithstanding its merit.
[20] On 26 May 2021, Chambers responded to the Applicant’s emails dated 24 and 25 May 2021. The response reminded the Applicant of the impending deadline to file his material and asked the Applicant to advise Chambers if he wished to rely on his emails of 24 and 25 May 2021, for the purpose of the Respondent’s dismissal application.
[21] The Applicant did not respond to Chambers’ email dated 26 May 2021, nor did he file any materials in relation to the dismissal application by the required deadline of 5:00 pm AWST on 28 May 2021.
2 Non-compliance with directions
[22] There have been two occasions where the Applicant has not filed material as directed, therefore, in my view, s 399A(1)(b) of the Act applies.
[23] The first, when Chambers issued revised directions on 23 October 2020. Whilst the Applicant filed an ‘Outline of arguments’, he expressed his unwillingness to submit his Statement of Evidence or Document list until such time as the Dismissal Statement from BHP was available.
[24] On the second occasion, the Applicant had been directed on 24 May 2021 to file further written submissions, witness statement, document list and any material upon which he wished to rely, for the purpose of the Respondent’s dismissal application. While the Applicant corresponded with Chambers on 24 and 25 May 2021, the correspondence did not attach the requisite documentation in compliance with the directions. And, notwithstanding the reminder sent by Chambers on 26 May 2021, no materials were forthcoming.
2.1 Legislative framework and legal principles
[25] 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.
(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.
[26] The consideration of whether to dismiss an unfair dismissal application pursuant to s 399A(1)(b) of the Act involves a two-stage process. 7 First, the Commission must be satisfied that the applicant unreasonably failed to comply with a direction or order.8 The decision-maker must make a broad value judgment as to whether the relevant failure was unreasonable in the circumstances.9 Second, if the decision-maker is satisfied that the applicant has unreasonably failed to comply with one or more of their obligations referred to in paragraph (b) of s 399A of the Act, the decision-maker has a further discretionary decision as to whether the unfair dismissal application should be dismissed.
[27] As observed by the Respondent, the following points are relevant considerations in determining whether the Commission should exercise its discretion in this case:
a) the power to dismiss an unfair dismissal application under s 399A of the Act, is one that should only be exercised ‘cautiously and sparingly’. 10 It is also well recognised that a Commission member’s discretion under s 399A of the Act is broad and should not be unnecessarily fettered or constrained;11
b) there is no requirement that there be ‘repeated’ non-compliance with a direction. The Commission must simply be satisfied that the failure to comply was ‘unreasonable’. 12 However, repeated instances of non-compliance may support a finding of unreasonableness, as this indicates an inability or unwillingness to progress the matter to hearing;13
c) where an applicant has been provided ‘with clear direction on what was required, the resources available and the timeframe in which materials were to be filed’, this may also be a matter that indicates that her or his non-compliance was unreasonable. 14 Conversely, non-compliance may not be unreasonable if the applicant was genuinely ‘confused’ as to what was expected of them in complying with the Commission’s directions;15 and
d) in deciding whether to exercise its power under s 399A, the Commission will be guided by the overarching principle that a ‘fair go all round’ should be provided to all parties, including employers. 16
[28] Referring to the abovementioned points, the Respondent pressed that the Commission should be satisfied that the Applicant’s non-compliance was unreasonable in the circumstances, for the following reasons:
a) on the first occasion of non-compliance with the directions of 23 October 2020, the Applicant contumaciously declared his intention not to comply with the revised directions in circumstances where:
i. the Commission repeatedly put the Applicant on notice as to the potential consequences of non-compliance with the Commission’s directions;
ii. the Applicant had already been afforded an extension of time to file his materials;
iii. the Applicant expressly advised the Commission that he understood he was ‘required to submit documents by 22nd October’; 17
iv. the Applicant subsequently declared that he is ‘unwilling to submit either the Document List, or the Statement of Evidence, without the Dismissal Statement from BHP’; and
v. the Commission had already refused the Applicant's application for an order for production of the ‘Dismissal Statement’.
b) further, from the first occurrence of non-compliance and the Respondent’s dismissal application being made the applicant has not at any stage:
i. provided any reason(s) (acceptable or otherwise) to the Commission for his non-compliance; or
ii. sought to remedy the non-compliance by filing the required documents with the Commission.
c) the second occasion of non-compliance provides further support for the Commission to find the Applicant has acted unreasonably in his non-compliance, as this occurred in the context of an interlocutory application to determine whether the unfair dismissal application should be dismissed by reason of his earlier non-compliance. By failing again to comply with the Commission’s directions, the Applicant has evinced a clear inability, and/or unwillingness, to have the substantive matter progress to hearing in a timely manner.
2.2 Consideration
[29] To date, the Applicant has not complied with two sets of directions. While on the first occasion of non-compliance, the Applicant filed an ‘Outline of argument’, he did not file all materials as directed, including his Statement of Evidence for the hearing on jurisdiction. This is the case notwithstanding that the Applicant was provided an extension of time in which to file his materials and was informed that there may be adverse consequences for a failure to comply with directions. The Applicant’s non-compliance with the revised directions of 26 October 2020 was not by way of an inadvertent omission or error. The Applicant, having been declined the production of a certain document, reacted with irreverence disregarding the directions issued concerning the filing of his evidence.
[30] On the second occasion of non-compliance, the Applicant did not comply with directions issued on 24 May 2021. These directions pertained to the filing of materials regarding the Respondent’s dismissal application and the Commission’s consideration of whether the unfair dismissal application should be dismissed. However, I consider that the directions fall within the ambit of ‘relating to the application’, as referred to in s 399A(1)(b) of the Act. In view of this, I note that the term ‘related’ is one of broad usage (as defined in the Macquarie Dictionary) and means ‘connected to’ or has an ‘association with’.
[31] At the time when the directions were issued on 24 May 2021, the Applicant had provided the Commission with a medical certificate that deemed him unfit to appear in court from 21 May 2021 to 21 August 2021. That was the extent of the information provided. Appreciative that the Applicant was unfit to appear before the Commission, the Applicant was accommodated by having the matter determined on the papers. While the Applicant was able to correspond with Chambers concerning his preference to settle the matter and to express his discontent, he was not so purposeful as to comply with the directions.
[32] The power to dismiss an application if the non-compliance was unreasonable is discretionary. In my view, the Applicant has unreasonably failed to comply with the revised directions of 26 October 2020. He has done so in circumstances where he was clearly informed about: (a) the necessity to comply with the directions; (b) what could occur if he did not comply with the directions; and (c) the resources available to assist him in preparing the requisite materials. Further, he noted that he was not going to file the requisite material until such time as he was in possession of the Dismissal Statement from BHP.
[33] Further, the Applicant again opted not to comply with the directions issued on 24 May 2021. This non-compliance occurred in circumstances where, notwithstanding the expiry of his medical certificate 4 April 2021 inclusive, he did not communicate with the Commission about his application until correspondence was sent to him on 10 May 2021. Once the Applicant was informed that should he wish to proceed with his application, the matter would be listed for hearing, a further medical certificate was provided to the Commission. Whilst directions were issued on 24 May 2021, the communications from the Applicant could not, on any objective level, be seen to be responsive to those objections. Again, the Applicant unreasonably failed to comply with the revised directions.
[34] The role of case management was discussed by the Full Bench of the Australian Industrial Relations Commission in Ghalloub v Aon Risk Services Australia Limited (Ghalloub). 18 In summary, that decision outlined certain principles, including that the starting point is that an applicant is entitled to have his or her case heard and that only in extreme circumstances should a party be shut out from litigating an issue that is fairly arguable.
[35] There is a reluctance to extinguish the Applicant’s right to have his application heard. However, his repeated non-compliance in the circumstances so described gives rise to a finding that the Applicant has indicated an inability or an unwillingness to have the matter heard within an acceptable period. 19 Further, non-compliance has inevitably resulted in unnecessary delay of the matter.
[36] The object of Part 3-4 not only requires me to ensure that a ‘fair go all around’ is accorded to the employee, but also to the employer. It has always been open to the Applicant to comply with the directions to enable his case to proceed. He has not done so.
[37] Should the matter now proceed to the hearing on jurisdiction, the Respondent would be placed in the unenviable position of piecing together the Applicant’s application with a view to enabling it to prepare its submissions, witness statements and other documents in response. I am not persuaded that this accords a ‘fair go all round’ in the context of this matter.
2.3 Conclusion
[38] In these circumstances, I have concluded, on balance, that the Applicant has unreasonably failed to comply with directions of this Commission relating to his application. I am therefore persuaded that I should exercise my discretion under s 399A of the Act and dismiss the Applicant’s application. The decision is not one made lightly given the need to adopt a cautious approach when dealing with such applications. However, an Order 20 giving effect to this decision will be issued today.
3 No reasonable prospects of success
[39] In light of my decision, it is unnecessary to address the Respondent’s application under s 587 of the Act or for that matter, similarly, the Commission’s proposition to consider the dismissal of the unfair dismissal application. However, the following points are pertinent.
[40] The Applicant is appreciably upset by the loss of his job. His disappointment and frustration with the process he is now embarking on is evident in his communications to Chambers. In this respect his upset has seen fit to manifest itself in the emails sent. However, it is understood that the Applicant purports having encountered many difficulties over the last 12 months, these include both serious personal and economic difficulties. There is great sympathy to the Applicant in this respect, and this decision should in no way be construed as detracting from those difficulties or minimising the hardship he has endured.
3.1 Legislative framework
[41] The Commission is empowered to dismiss an unfair dismissal application on the basis that the application has no reasonable prospects of success. These powers to dismiss an application, are set out generally at s 587 of the Act. That section states:
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.
[42] Whenever exercising the power to dismiss an application under s 587, s 578 is relevant. It provides:
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.
[43] 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. 21
[44] Of course, as noted, in these types of applications, one is always guided by the premise that the power to dismiss a substantive application should only be exercised cautiously and sparingly; particularly where, as here, the Applicant has sought orders for relief for his alleged unfair dismissal. 22
3.2 Consideration
[45] Having regard to the circumstances of this matter, I am satisfied that the application has no reasonable prospects of success. The Applicant’s non-compliance with directions based on the reasons given (or not given as the case may be), in addition to his lack of contact from the expiry of his medical certificate on 4 April 2021 until Chambers contacted him on 10 May 2021, have in part, led me to this conclusion. However, I note that once the Applicant was informed that the matter would proceed to hearing regarding the Respondent’s application to dismiss the substantive application, another medical certificate surfaced covering a period of four months. It is not the case that the ill health of the Applicant is impugned. However, the Applicant’s continued ill health, in light of all of the other circumstances of this matter, render the application as one that has no reasonable prospects of success given the Applicant’s inability to engage with what is required of him.
[46] It follows that in the circumstances of this matter, I would consider that the unfair dismissal application could also be dismissed pursuant to s 587(1)(c).
DEPUTY PRESIDENT
On the papers.
Printed by authority of the Commonwealth Government Printer
<PR730537>
1 Form F3.
2 Tunstead v Busways North Coast Pty Ltd [2020] FWCFB 25 at [32], citing Wright v Australian Customs Service (2002) AIRC PR926115.
3 Email from Deputy President Beaumont’s Chambers to the Parties dated 23 October 2020 time stamped 1:57pm.
4 Email from the Applicant to the Chambers of Deputy President Beaumont dated 26 October 2020 time stamped 5:17AM.
5 Email from the Applicant to the Chambers of Deputy President Beaumont dated 16 December 2020 time stamped 10:30PM.
6 Email from the Applicant to the Chambers of Deputy President Beaumont dated 24 May 2021 time stamped 5:25PM.
7 Lawes v Recochem Inc [2020] FWC 5662 (‘Recochem Inc’) [3]-[5].
8 Robin Hansen v Calvary Health Care Adelaide Limited[2016] FWCFB 5223.
9 Coal and Allied v AIRC (2000) 203 CLR 194 [19].
10 Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925 (‘Roy Hill’) [31]-[37].
11 Ibid [37].
12 Zada v WorkPac Pty Ltd[2019] FWC 7292 (‘Zada’) [22].
13 Munn v The Grout Guy Pty Ltd as trustee for the Young Enterprises Trust T/A The Grout Guy[2019] FWC 3772 [28].
14 Zada [20].
15 Roy Hill [43].
16 Recochem Inc [19]; Raschilla v Ausino West Pty Ltd ATF The Supercrane Unit Trust T/A Supercrane Engineered Lifting Technology [2017] FWCFB 5952 [12].
17 Email from the Applicant to Deputy President Beaumont’s Chambers dated 20 October 2020 time stamped 7:42pm.
18 Print PR956665, 21 March 2005, Giudice J, Hamilton DP and Larkin C.
19 Ghalloub v Aon Risk Services Australia Limited Print PR956665, 21 March 2005 (Giudice J, Hamilton DP and Larkin C).
20 PR730800.
21 Peter Viavattene v Health Care Australia[2013] FWCFB 2532 [39].
22 John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925.
0
9
0