Hai V.T Phan v Semi Skel Hire Pty Ltd

[2019] FWC 2010

[2019] FWC 2010

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hai V.T Phan
v
Semi Skel Hire Pty Ltd
(U2018/12657)

DEPUTY PRESIDENT CLANCY MELBOURNE, 2 APRIL 2019

Application for an unfair dismissal remedy.

[1] On 7 December 2018, Mr Hai V.T Phan (Mr Phan) made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Phan said he was notified that his employment had been terminated by Semi Skel Hire Pty Ltd (SSH) on 27 November 2018 and that the dismissal took effect on the same day. On his application form, Mr Phan noted that he was being represented by Mr Daniel Phan (the Applicant Representative). It is worth noting that the email address nominated for both Mr Phan and the Applicant Representative were the same on the application form.

[2] The matter proceeded to conciliation on 16 January 2019 but did not resolve.

[3] SSH filed its response to Mr Phan’s application on 18 January 2019, which indicated that it objected on the basis that there was no dismissal.

[4] On 21 January 2019, a Notice of Listing was sent to the parties scheduling the matter for a Jurisdiction (No Dismissal) and Arbitration Conference/Hearing on 27-29 March 2019. Directions were also issued requiring SSH to file its material addressing the jurisdictional objection by no later than noon on 4 February 2019; Mr Phan to file his material in reply to the jurisdictional objection and in support of his application by no later than noon on 11 February 2019; and SSH to file any reply material by no later than noon on 18 February 2019. This Notice of Listing and Directions were sent to the email address nominated for Mr Phan/the Applicant Representative as well as to Mr Phan’s nominated postal address.

[5] No material was received from Mr Phan by noon on 11 February 2019. The Commission attempted to telephone the Applicant Representative later the same day and left a voicemail message seeking an urgent return call in relation to Mr Phan’s overdue material.

[6] On 12 February 2019, the Applicant Representative returned the Commission’s call and advised that he did not know when Mr Phan’s material was due and that he had thought the Notice of Listing dated 21 January 2019 was emailed to him by mistake, so he deleted it. Following the telephone conversation, the Commission resent the Applicant Representative the Notice of Listing dated 21 January 2019 as well as Commission templates to assist in the drafting of Mr Phan’s material.

[7] Later the same day, the Commission received an email from the Applicant Representative seeking an extension of three weeks for the filing of Mr Phan’s material.

[8] An extension was granted on 14 February 2019, when an amended Notice of Listing and Directions were sent to the parties, directing Mr Phan to file his material by no later than noon on 25 February 2019.

[9] No material was received from Mr Phan by 25 February 2019.

[10] The Commission telephoned the Applicant Representative on 26 and 27 February 2019 but was unable to reach him on both attempts, and a voicemail message was left seeking his return call on each occasion. Following the attempt on 27 February 2019, the Commission sent an email to the Applicant Representative warning that if he did not contact the Commission by 9:00AM the next morning, the matter would be listed for a non-compliance hearing.

[11] As no response was received from Mr Phan or the Applicant Representative on 28 February 2019, the matter was listed for a non-compliance hearing and a Notice of Listing was sent to the parties on the morning of 28 February 2019 to confirm this.

[12] Also on 28 February 2019, the Commission attempted to telephone the Applicant Representative to notify him of the scheduling of the non-compliance hearing and left a voicemail message seeking an urgent return call. An attempt was also made to telephone Mr Phan, but the call could not be completed.

[13] The non-compliance hearing proceeded before me on 1 March 2019. Despite taking a call from my Associate, the Applicant Representative refused to attend. Mr Phan himself could not be contacted. SSH made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Phan’s failure to comply with the direction of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted SSH’s oral application.

[14] Following the non-compliance hearing, correspondence was sent to the Applicant Representative’s nominated email and postal addresses advising him of SSH’s s.399A application. The postal correspondence was sent via express post. The correspondence directed the Applicant Representative to file submissions and other documentary material in respect of the s.399A application by no later than 4:00PM on 8 March 2019. The correspondence also noted that if the Commission did not receive a response, Mr Phan’s application for relief from unfair dismissal may be dismissed. A review of the express post tracking ID revealed that the correspondence was delivered to the Applicant Representative’s nominated postal address on 4 March 2019.

[15] No material was received from the Applicant Representative by 8 March 2019. This was the first failure to respond to the s.399A application within a timeline set by the Commission.

[16] On 15 March 2019, further correspondence was sent to Mr Phan’s nominated postal address via express post as well as the Applicant Representative’s nominated email address. The correspondence directed Mr Phan to file submissions and other documentary material in respect of the s.399A application by no later than 4:00PM on 20 March 2019. The correspondence noted that if the Commission did not receive a response, Mr Phan’s application for relief from unfair dismissal may be dismissed. A review of the express post tracking ID revealed the correspondence was delivered to Mr Phan’s nominated postal address on 18 March 2019.

[17] No material was received from the Applicant or his representative by 4:00PM on 20 March 2019. This was the second failure to respond to the s.399A application within a timeline set by the Commission.

[18] On 9.21AM on 27 March 2019, a Notice of Listing was sent to the parties cancelling the Jurisdiction and Arbitration Conference/Hearing scheduled for 27-29 March 2019.

[19] At 11.33AM on 27 March 2019, the Commission received an email from the Applicant Representative, which stated:

“I am the applicant’s representative and this is a voluntary role. Due to my unforeseen circumstance and other commitments, I did not attend the requirements from Fair Work Commission and as a result the Hearing listed on 28 March 2019 has been cancelled.

I am now having more time to assist the applicant and will attend any request from Fair Work Commission in the future.

Would you kindly allow us three weeks from today to submit information required for the hearing arranged by the Commission in the future.”

[20] In response, I caused correspondence to be sent from my chambers as follows:

“I refer to your email below and to the above matter, which has been allocated to Deputy President Clancy, Termination of Employment Panel Head.

As you recall, I spoke to you on the morning of 1 March 2019, just before the non-compliance hearing was due to begin. You indicated at the time that you were unable to attend, despite being advised that the hearing would proceed in your absence. I also tried contacting Mr Hai Phan, but was unable to reach him. The non-compliance hearing therefore proceeded before Deputy President Clancy without the attendance of Mr Phan or yourself.

At the non-compliance hearing, Semi Skel Hire Pty Ltd made an application under s.399A of the Fair Work Act 2009 to dismiss Mr Phan’s application for unfair dismissal remedy. A letter dated 1 March 2019 was sent to you via email (email address redacted) and via express post (postal address redacted). The letter directed you to file submissions providing reasons as to why the Commission should not dismiss Mr Phan’s application by no later than 4:00PM on Friday, 8 March 2019. It also advised that if the material was not filed by this time, Mr Phan’s application for relief from unfair dismissal may be dismissed.

A further letter dated 15 March 2019 was sent to Mr Phan’s postal address (postal address redacted) via express post, as well as to you via email. This letter directed Mr Phan to file submissions providing reasons as to why the Commission should not dismiss his application by no later than 4:00PM on Wednesday, 20 March 2019. Again, the letter advised that if the material was not filed by this time, Mr Phan’s application for relief from unfair dismissal may be dismissed.

Neither you nor Mr Phan have complied with the directions by filing the submissions. No response has otherwise been received from you or Mr Phan, other than your email below.

You are now directed to file any submissions responding to Semi Skel Hire Pty Ltd’s s.399A application, providing reasons as to why the Commission should not dismiss Mr Phan’s application, by no later than 3:00PM on Friday, 29 March 2019. If no submissions are received by this time, the Deputy President will determine the s.399A application based on the material before him.”

[21] The correspondence was also emailed to Mr Phan’s email address, which had been made available to the Commission for the first time as a result of being carbon copied in the Applicant Representative’s email to the Commission on 27 March 2019.

[22] No material was received from the Applicant or his representative by 3:00PM on 29 March 2019. This was the third failure to respond to the s.399A application within a timeline set by the Commission.

[23] However, at 3:58PM on Friday, 29 March 2019, an email was received from the Applicant Representative attaching a two-page witness statement of Mr Phan and three document attachments. The witness statement detailed a chronology of events leading up to Mr Phan’s alleged dismissal on 27 November 2018. There were still no submissions in response to SSH’s s.399A application nor any reasons provided as to why the application should not be dismissed. There has never been any explanation provided for Mr Phan’s failure to attend the non-compliance hearing before me on 1 March 2019.

Consideration

[24] 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.”

[25] On application by an employer, the Commission has the discretion to dismiss an unfair dismissal application pursuant to s.399A of the Act on the basis there has been unreasonable non-compliance with directions of the Commission or an unreasonable failure to attend a conference conducted by the Commission.

[26] The Explanatory Memorandum states that the intention of this provision is “to address the small proportion of applicants who may pursue claims in an improper and unreasonable manner… 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.” 1

[27] The role of case management was discussed in Ghalloub v Aon Risk Services Australia Limited, 2 with the Full Bench outlining the following considerations:

•  the starting point of any consideration of an application to dismiss is that an applicant is entitled to have his or her case heard;

•  directions play an important role in case management;

•  accepting the importance of case management principles, only in extreme circumstances should a party be shut out from litigating an issue which is fairly arguable;

•  the circumstances of each case is central;

•  a history of non-compliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period of time is relevant;

•  continuing non-compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.

[28] While not an exhaustive list of matters that may be considered, I will have regard to the approach of the Full Bench in this matter in deciding whether to exercise my discretion to dismiss the unfair dismissal application Mr Phan has made.

[29] As much as can be concluded on the material before me is that the merit of Mr Phan’s unfair dismissal application is disputed by SSH, with the issue being whether or not Mr Phan was dismissed by SSH within the meaning of s.386 of the Act.

[30] However, Mr Phan has a history of non-compliance in this matter. The first Notice of Listing and Directions were sent to both Mr Phan and the Applicant Representative on 21 January 2019 and gave Mr Phan 3 weeks to file an Outline of Argument supporting his application, an Outline of Argument responding to SSH’s jurisdictional objection, Statement(s) of Evidence and a Document List. Mr Phan did not comply but following a request from his Representative, an extension of time to noon on 25 February 2019 was granted. Mr Phan again did not comply, which necessitated the non-compliance hearing on 1 March 2019. Mr Phan then did not attend this non-compliance hearing and his representative refused to. The result was the s.399A application of SSH.

[31] The power to dismiss an application pursuant to s.399A is discretionary. I consider the lack of engagement by Mr Phan and his representative during the course of this matter, the continuing non-compliance and the seeming unwillingness to have the matter ready for hearing within the standard Commission timelines has been unreasonable. Further, despite being directed to file material in response to the s.399A application on three occasions with three different deadlines, neither Mr Phan nor his representative have made any submissions that either explain the non-attendance on 1 March 2019 or outline reasons why the Commission should not dismiss Mr Phan’s unfair dismissal application. The repeated failure of Mr Phan to comply with the Commission’s directions has never been satisfactorily explained and during this period of non-compliance and lack of engagement with the directions of the Commission, the listing for the Jurisdiction and Arbitration Conference/Hearing had to cancelled.

[32] In these circumstances, I am satisfied that Mr Phan has unreasonably failed to attend the non-compliance hearing on 1 March 2019 and unreasonably failed to comply with directions of the Commission and I am persuaded that I should exercise my discretion under s.399A of the Act to dismiss Mr Phan’s unfair dismissal application.

[33] An Order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

<PR706251>

 1   Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161]-[163].

 2   PR956665.

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