Hugo Meagher v Australian Government Department of Home Affairs

[2020] FWC 1669

[2020] FWC 1669

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hugo Meagher
v
Australian Government Department of Home Affairs
(U2019/11134)

DEPUTY PRESIDENT KOVACIC CANBERRA, 27 MARCH 2020

Application for an unfair dismissal remedy – application under s.399A to dismiss the application – unfair dismissal application dismissed.

[1] On 3 October 2019 Mr Hugo Meagher (the Applicant) lodged an application under section 394 of the Fair Work Act 2009 (Cth) (the Act) alleging that he had been unfairly dismissed by the Australian Government Department of Home Affairs (the Respondent) on 1 October 2019. The Applicant was dismissed for non-performance of duties in accordance with s.29(3)(c) of the Public Service Act 1999 (Cth)following several periods of unauthorised absence from work over the period from mid-August to 1 October 2019. The Applicant contended in his application that he believed he had sufficient reason to be absent from the Respondent’s workplace as a result of a targeted campaign of bullying and harassment against him. The Applicant also stated in his application that he had reported the conduct of several departmental officials to the police.

[2] On 14 January 2020 Mr Meagher’s unfair dismissal application was listed for a telephone mention and/or directions hearing before me at 10:00am on 23 January 2020. Early on the morning of 23 January 2020 the Applicant sent an email to the Fair Work Commission (the Commission) requesting that the telephone mention and/or directions hearing be rescheduled. The Commission requested further information from the Applicant regarding the reasons for his request but in the absence of the Applicant providing any further information later advised the parties that the telephone hearing would proceed as scheduled. The Applicant did not attend the telephone mention and/or directions hearing despite numerous attempts by the Commission to contact him by telephone.

[3] Later that day the Commission sent the following email to the Applicant:

“Dear Mr Meagher

I refer to the telephone mention and/directions hearing that was due to take place at 10am today (23 January 2020). In circumstances where you provided no reason in support of your request that the hearing be rescheduled, the hearing proceeded as scheduled. I made several attempts to contact you on … [telephone number withheld] without success.

As a result of your failure to attend, the Deputy President requires you to provide the following information:

1. An explanation from you as to why you did not appear at today’s mention and/directions hearing;

2. An indication from you as to whether you are open to a further attempt at conciliation and at resolving the matter;

3. Your views on the following proposed directions and proposed hearing dates that were canvassed with the Respondent in your absence this morning:

I. The Applicant is to file with the Commission and serve on the Respondent an outline of submissions and any evidentiary material on which it intends to rely by close of business on Thursday, 13 February 2020.

II. The Respondent is to file with the Commission and serve on the Applicant an outline of submissions and any evidentiary material on which it intends to rely by close of business on Thursday, 5 March 2020.

III. The Applicant is to file with the Commission and serve on the Respondent any submissions in reply by close of business on Thursday, 12 March 2020.

IV. Hearing on 23 and 24 March 2020

4. How many witnesses you intend to call.

Please provide a response to the above request as soon as possible if not before Friday COB 24 January 2020.” (Emphasis as per original)

[4] In the absence of a response from the Applicant, the above proposed directions were formally issued on 3 February 2020.

[5] On 13 February 2020, i.e. the day the Applicant’s outline of submissions and evidentiary material were due to be filed with the Commission, the Applicant sent an email to the Commission which read:

“In order to proceed - I need every document that the Department holds about me.”

[6] The following day (14 February 2020) the Commission sent the following email to the Applicant:

“Directions were issued on 3 February 2020 requiring you to file materials in support of your application by 13 February 2020. No such submissions have been received.

Accordingly, the Deputy President has advised that if you do not provide your materials and/or evidence in support of your request for an extension of time in which to file said materials by COB Monday  17 February 2020 he will list the matter for a non-compliance hearing.” (Emphasis as per original)

[7] The Applicant did not file his materials nor did he request an extension of time to do so. However, on 20 February 2020 the Applicant forwarded a Form F52 – Application for an order for production of documents, records or information to the Commission (the Form F52 application) seeking “[a]ll internal communication about me.” 1 In that application the Applicant contended that the documents were “directly relevant to the accusations presented to the Tribunal” and directly related to the conduct which resulted in his dismissal.2

[8] The Commission sent the following email to the Applicant on the same day regarding his Form F52 application:

“The Deputy President has considered your request and requires you need [sic] to be more specific as to the documents you seek. As framed, your application is far too broad and would potentially be oppressive in terms of having to comply with. The Deputy President also requires further information as to how the documents sought would assist the Commission in determining your unfair dismissal application. You also need to provide a draft order reflecting the scope of your application.”

[9] In the light of the Applicant’s failure to comply with the Directions issued on 3 February 2020 or the Commission’s request of 14 February 2020, on 20 February 2020 the Commission listed the Applicant’s unfair dismissal application for a non-compliance hearing at 2:00pm on 6 March 2020.

[10] The Applicant responded to the Commission’s abovementioned email regarding his Form F52 application on 24 February 2020 stating that he could not be any more specific than he was in that application.

[11] On 28 February 2020 the Respondent wrote to the Commission advising that it opposed the Applicant’s Form F52 application, contending inter alia that the application was not sufficiently specific and that the documents sought did not have an apparent relevance to the unfair dismissal proceedings.

[12] On 3 March 2020 the Respondent made an application under s.399A of the Act seeking that the Applicant’s unfair dismissal application be dismissed on the basis that the Applicant had both unreasonably failed to attend a hearing held by the Commission and unreasonably failed to comply with a direction in respect of his unfair dismissal application. In support of its application, the Respondent cited the decision in Mr Mario Lopez Aragon v Aegis Safety Pty Ltd T/A Techinspect. 3

[13] By way of background, s.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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.”

[14] At the non-compliance hearing on 6 March 2020 the Applicant contended that he required the documents sought in his Form F52 application in order to construct his arguments as to why his dismissal was unfair. The Respondent opposed the making of an order for the production of documents in the terms sought, noting that the Applicant’s Form F52 application was made after his outline of submissions and evidentiary material was due to be filed with the Commission. The Respondent also described the Form F52 application as a ‘fishing expedition’. Having regard to the parties’ respective submissions the Commission determined that it would not grant the application in the terms sought for a number of reasons, including that the documents sought were so broad as to make the application oppressive and that in the absence of greater specificity it was not satisfied of the relevance of the documents.

[15] Also at the hearing, the Respondent maintained its application under s.399A of the Act on the basis that the Applicant had without explanation failed to attend the telephone mention and/or directions hearing on 23 January 2010 and had failed to comply with the Directions which required him to file his outline of submissions and evidentiary material on 13 February 2020 and the Commission’s subsequent request that he do so by 17 February 2020. The Applicant submitted that he was unable to do so without access to the documents sought in his Form F52 application. The hearing concluded with the Commission providing the Applicant a further opportunity to file his outline of submissions and evidentiary material. More specifically, the Applicant was given until close of business on 13 March 2020 to do so. The Applicant was also invited by the Commission to file, should he wish to do so, a revised application for the production of documents which was more specific and provided a more detailed explanation of the relevance of the documents sought to the matters to be determined in respect of his unfair dismissal application. The Commission also forewarned the Applicant of the consequences of non-compliance with these revised Directions, i.e. his unfair dismissal application may be dismissed under s.399A of the Act.

[16] Revised Directions reflecting the above timetable were issued shortly after the hearing concluded. The Applicant did not comply with those revised Directions nor did he seek an extension of time to comply with the revised Directions.

[17] On 15 March 2020 (i.e. after his materials were due to be filed with the Commission) the Applicant emailed a revised request for the Respondent to provide him with certain documents. The email simply read:

“In order to complete my submission for the above matter, I require all internal communications made about be by the following Departmental employees:

… [Names of 18 employees withheld – one name appeared twice]

The dates will be from my period of employment from 5 September 2018 - current date.”

[18] I note from email correspondence from the Applicant received by the Commission on 28 February 2020 that in July 2019 he lodged a freedom of information (FOI) application with the Respondent seeking access to all internal staff communications that had been made about him. The request concerned 16 of the 18 employees listed in his above email (again one name appeared twice). I further note that the Respondent in its decision of 30 August 2019 stated that it had identified 24 documents as falling within the scope of the Applicant’s FOI request, with 14 documents released in part with deletions and the remaining 10 documents exempt in full from disclosure. The deletions and exemptions were made in accordance with ss.22(1)(a)(ii) (Access to edited copies with exempt or irrelevant matter deleted) and 47E (Public interest conditional exemptions--certain operations of agencies) and 47F (Public interest conditional exemptions--personal privacy) of the Freedom of Information Act 1982 (Cth).

[19] Several things occurred on 16 March 2019:

•  the Respondent wrote to the Commission requesting that the Commission determine its application under s.399A of the Act;

•  the Applicant replied to the Respondent’s abovementioned request by indicating that he had had internet issues and had also been unwell; and

•  the Commission emailed the Applicant late that afternoon as follows:

“Thank you for your email.

Revised directions were issued on 6 March 2020 requiring you to file materials in support of your application by Friday, 13 March 2020. No such submissions have been received. Nor have we received the medical information or any other evidence to substantiate an extension of time.

Please provide your materials and/or evidence in support of your request for an extension of time as soon as possible.” (Emphasis as per original)

[20] The Applicant has not responded to the Commission’s email of 16 March 2020.

[21] On 18 March 2020 the Respondent emailed the Commission advising that it opposed the Applicant’s most recent email request for the production of documents (see paragraph [17] above). The Respondent stated among other things that the Applicant’s request did not provide reasonable particularity and failed to expand on the relevance of the material sought to the issues before the Commission.
[22] On 20 March 2020 the Commission sent the Applicant the following email:

“Dear Mr Meagher

The Deputy President notes that your application for the production of documents has not been properly made and in his view your application lacks specificity both in terms of how the documents concern your application and what is precisely sought. Further the request remains oppressive.

The Deputy President also indicates that unless your outline of submissions and evidentiary material is received by close of business Friday, 20 March 2020 the Deputy President will proceed to determine the Respondent’s s.399A application.” (Emphasis as per original)

[23] The Applicant responded to the above email on 23 March 2020 (solely to the Commission) and on 24 March 2020 (with the Respondent copied in) as follows:

“May I please apply to Court to have this decision reversed?”

[24] However, the Applicant did not file his outline of submissions and evidentiary material as requested by the Commission.

[25] The Commission responded as follows on 25 March 2020:

“Dear Mr Meagher

RE: U2019/11134 - Meagher, Hugo v Australian Government Department of Home Affairs

I refer to your email of 24 March 2020 regarding your earlier request for the Respondent to provide you with certain documents. The Deputy President notes that he has made no decision in respect of your request as you have not made an application in accordance with Rule 8(2) of the Fair Work Commission Rules 2013. Should you wish to still make an application for an order requiring the production of documents please complete the attached blank Form F52. However, in framing any such application the Deputy President has also asked me to bring to your attention that the documents sought in your email request of 15 March 2020 are almost identical in terms to your freedom of information request that was determined by the Department of Home Affairs (the Department) on 30 August 2019. The Deputy President also notes that you have been provided with copies of the various documents identified by the Department as falling within the scope of your request.

The Deputy President has asked me to again bring to your attention that you are yet to comply with the Revised Directions issued on 6 March 2020 which required you to file your outline of submissions and any evidentiary material in support of your unfair dismissal application by close of business on 13 March 2020. The Deputy President also notes that you have not sought an extension of time to comply with those Revised Directions and that you also failed to file your materials by close of business on 20 March 2020 as requested in the Commission’s email to you on that day. Despite this, the Deputy President is very mindful of the fact that you are self-represented and is therefore willing to provide you with a further opportunity to file the above materials in support of your unfair dismissal application. You are required to do so by no later than noon on Friday, 27 March 2020. Revised Directions to that effect are attached. The Deputy President has also asked me to indicate that a failure to comply with the attached revised Directions is likely result in your application being dismissed under s.399A of the Fair Work Act 2009.”

[26] The Applicant again failed to comply with the Commission’s further revised Directions.

[27] In summary, the Applicant has to date failed to:

•  attend the telephone mention and/or directions hearing on 23 January 2020 and, despite the Commission’s request of 24 January 2020, has not provided any explanation for his non-attendance;

•  comply with the Commission’s Directions of 3 February 2020 which required him to file his outline of submissions and evidentiary material on 13 February 2020;

•  file his outline of submissions and evidentiary material or request an extension of time to do so by close of business on 17 February 2020 as requested in the Commission’s email of 14 February 2020;

•  comply with the Commission’s revised Directions of 6 March 2020 which required him to file his outline of submissions and evidentiary material on 13 March 2020;

•  file his outline of submissions and evidentiary material by close of business on 20 March 2020 as specified in the Commission’s email of that day; and

•  comply with the Commission’s further revised Directions of 25 March 2020 which required him to file his outline of submissions and evidentiary material by noon on 27 March 2020.

[28] Taking into account the statutory scheme and the circumstances of this case, I am satisfied that the Respondent’s application under s.399A of the Act should be granted as a result of the Applicant’s unreasonable failure to comply with the Directions issued by the Commission on 3 February, the revised Directions of 6 March 2020 and the further revised Directions of 25 March 2020. The Applicant’s failure to attend the telephone mention and/or directions hearing on 23 January 2020 is also unreasonable in circumstances where he has failed to provide any explanation for his non-attendance despite the Commission’s request that he do so by close of business on 24 January 2020. While I appreciate that the Applicant is self-represented, he has in my view been afforded sufficient opportunity to comply with the Commission’s Directions and revised Directions or seek an extension of time to do so but has failed avail himself of the various opportunities afforded him in that regard. His failure to comply is unreasonable. The Applicant’s most recent request for documents does not in my view alter the situation, particularly as it almost replicates his July 2019 FOI request which was determined by the Respondent in late August 2019. Accordingly, the Applicant’s unfair dismissal application will be dismissed. An order to that effect will be issued in conjunction with this decision.

Appearances:

H. Meagher on his own behalf.
L. Pendle for the Respondent.

Hearing details:

Canberra.
2019
March 6.

Printed by authority of the Commonwealth Government Printer

<PR717877>

 1   Form F52 – Application for an order for production of documents, records or information to the Commission at Item 1.1

 2   Ibid at Items 1.2 and 1.3

 3   [2013] FWC 5993