Ingui v MSS Security Pty Ltd

[2018] FWC 2201

[2018] FWC 2201

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dominic Igini
v
MSS Security Pty Ltd T/A MSS Security
(U2018/399)

DEPUTY PRESIDENT MASSON MELBOURNE, 18 APRIL 2018

Application for an unfair dismissal remedy – application to dismiss pursuant to s 399A – not granted.

[1] On 12 January 2018, Mr Dominic Igini lodged an unfair dismissal application alleging he was terminated by MSS Security Pty Ltd (MSS) as a result of constructive dismissal on 27 December 2017.

[2] MSS denies that it has dismissed Mr Igini and has raised this as a jurisdictional objection to the unfair dismissal application.

[3] The matter was subject to a conciliation conference on 13 February 2018 but it was not resolved during that conference.

[4] Directions were issued by the Fair Work Commission (the Commission) to the parties for the filing of submissions and materials on 16 February 2018. Both parties subsequently filed submissions and materials in accordance with the Commission’s directions. The matter is listed for a Jurisdiction (No Dismissal) and Arbitration Conference/Hearing on 23 and 24 April 2018.

[5] Prior to the allocation of the matter to me, the Termination of Employment Panel Head, Deputy President Clancy, dealt with a number of applications made by Mr Igini in relation to the production of documents and orders to appear and issued an Interim Decision 1 on 27 March 2018.

[6] Prior to determining Mr Igini’s applications, the Deputy President determined to conduct an attendance Mention on 23 March 2018 so that Mr Igini “could discuss his concerns regarding his applications to the Commission for the production of documents.”  2 It is clear that Mr Igini was unhappy with the Deputy President’s decision to conduct an attendance Mention believing that it was inappropriate for the Commission to involve the Respondent. Ultimately, Mr Igini did not attend the Mention although he was given the option of attending by telephone.

[7] Following the conduct of the Mention on 23 March 2018, which Mr Igini did not attend, the Deputy President issued an Interim Decision on 27 March 2018 in which he declined Mr Igini’s applications for production of documents.

[8] On 5 April 2018, MSS made an application pursuant to s 399A of the Fair Work Act 2009 (the Act) requesting that the Commission exercise its discretion to dismiss Mr Igini’s unfair dismissal application.

Relevant Legislation

[9] 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.

The s 399A Application

[10] MSS’ application to dismiss Mr Igini’s unfair dismissal application, pursuant to section 399A of the Act, is outlined in the Form F1 Application Form as follows:

1. Mr Igini lodged an unfair dismissal claim on or about 12 January 2018.

2. The matter was listed for Conciliation by telephone before a Fair Work Commission conciliator at 2.15pm on Tuesday, 13 February 2018.

3. The matter was unable to be resolved at conciliation as Mr Igini hung up on the Fair Work Commission conciliator during the conciliation.

4. On 21 March 2018, the Fair Work Commission issued a Notice of Listing for Mention before Deputy President Clancy at 2.00 pm on Friday, 23 March 2018 directing both parties to attend. Initially the Mention was to be held at the Fair Work Commission, 11 Exhibition Street, Melbourne. The Mention was then changed to a telephone conference on the morning of the 23 March 2018 to accommodate Mr Igini’s attendance.

5. Mr Igini did not attend the Mention despite being directed to as outlined in Deputy President Clancy’s Interim Decision PR601485 (Attachment 1):

“[18]…it was advised that both parties were directed to attend and I intended to discuss the orders Mr Igini was seeking.”

6. Mr Igini has been both uncooperative and has failed to comply with directions to attend the Mention by the Fair Work Commission.

7. The matter is listed for hearing on 23 April and 24 April 2018.

8. In accordance with s 399A of the Fair Work Act 2009, the Commission can dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably; b) failed to comply with a direction or order of the FWC relating to the application.

9. As such, and in light of Mr Igini’s uncooperativeness and failure to comply with the directions of the Commission, the Company request that the Commission dismiss the Application (U2018/399).

Mr Igini’s reply

[11] On 13 April 2018, the Commission wrote to Mr Igini drawing to his attention MSS’ application to dismiss and inviting Mr Igini to make submissions in relation to MSS’ application. In a response received on 13 February 2018, Mr Igini submitted as follows:

“Thank you for the notice. The respondent is without warrant in its request and it would be unjust to entertain the idea to dismiss the matter without due course.

I think this does not require my attention or the FWC for that matter.”

[12] On 13 April 2018, a Form 53 Notice of representative commencing to act was received from Bartlett Workplace Lawyers and Consultants advising that they now acted for Mr Igini.

[13] On 17 April 2018, further submissions were received from Bartlett Workplace Lawyers and Consultants in relation to MSS’ s 399A application. The submissions made by Mr Igini’s representative can be summarised as follows:

1. The exercise of the discretion by the Commission to dismiss an application should be exercised “with caution”;

2. The absence of Mr Igini from the Mention hearing did not prevent Clancy DP dealing with the specific matters before him that prompted the Mention hearing, that is, Mr Igini’s applications for the production of documents;

3. Mr Igini’s non-attendance at the Mention did not evidence a failure on his part to prosecute his case;

4. MSS’ capacity to answer Mr Igini’s case was not prejudiced;

5. That MSS’ reliance on Mr Igini’s non-attendance constituting non-compliance was flawed as the Notice of Listing did not contain a direction to Mr Igini to attend. The absence of a direction for Mr Igini to attend resulted in the absence of the necessary pre-condition for consideration of an application by MSS under s 399A(1); and

6. That Mr Igini’s “uncooperativeness” was not a relevant factor that the Commission could take into account in the absence of one or more of the conditions in sub-paragraphs (a) to (c) of s399A(1) having been made out.

Consideration

[14] The Commission has the discretion to dismiss an unfair dismissal application under s.399A of the Act on application by an employer, in circumstances where there has been unreasonable non-compliance with Directions of the Commission. The power to dismiss an application if the non-compliance was unreasonable is discretionary.

[15] The relevant Explanatory Memorandum said in relation to s 399A applications, the intention of this provision was “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.” 3

[16] Deputy President Clancy helpfully summarised the relevant principles in considering s 399A applications in a recent decision 4 and in doing so drew on a decision of the Full Bench of the Australian Industrial Relations Commission in Ghalloub v Aon Risk Services Australia Limited (Ghalloub)5. The Deputy President summarised the relevant principles as follows:

[24] 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). In summary, that decision outlined the following principles:

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

2. directions play an important role in case management;

3. 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;

4. the circumstances of each case is central;

5. 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;

6. continuing non-compliance which causes unnecessary delay, expense or prejudice to the other party is relevant. 6

[17] I will adopt the approach of the Full Bench in Ghalloub as summarised by Deputy President Clancy, in deciding the application made pursuant to s 399A of the Act.

[18] Mr Igini failed to attend the Mention hearing conducted on 23 March 2018, seemingly as a consequence of his dissatisfaction with the Mention hearing process directed by the Termination of Employment Panel Head, Deputy President Clancy. It is notable that the Mention hearing was listed by the Deputy President to enable Mr Igini’s concerns over his various applications to the Commission to produce documents to be discussed. It is regrettable that Mr Igini chose to not make himself available, particularly in the circumstances where the option of participating by telephone was provided to him.

[19] Mr Igini has however complied with Commission Directions regarding the filing of submissions and material for hearing.

[20] As made clear in Ghalloub, the starting point of any consideration of an application to dismiss is that Mr Igini is entitled to have his case heard. While Mr Igini may have been dissatisfied with the Mention processes prescribed by the Commission and failed to attend, I accept that the Commission should be cautious in dismissing an application. I am consequently loathe to pre-emptively deny him a right to be heard, put his case and answer the material advanced by MSS. This is particularly the case in circumstances where, as a self-represented litigant at the point of his case preparation, his knowledge and familiarity with the process may have been limited.

[21] While Mr Igini chose to not participate in the mention hearing of 23 March 2018, his non-attendance does not appear to have adversely impacted on case management. His applications for production of documents were subsequently dealt with by Deputy President Clancy in his decision of 27 March 2018 and Mr Igini’s submissions and materials for hearing have been filed as previously directed. Nor is there a history of non-compliance or continuing non-compliance by Mr Igini of a type that is likely to cause unnecessary delay, expense or prejudice to MSS.

[22] Finally, I am not persuaded that Mr Igini’s non-attendance at the scheduled Mention hearing on 23 March 2017 could be characterised as an extreme circumstance in case management of the kind envisaged by the Full Bench in Ghalloub,such that itthat would weigh in favour of the dismissal of Mr Igini’s application for unfair dismissal.

[23] I have carefully weighed the materials filed and submissions made by the parties on MSS’ application to dismiss the matter. In the circumstances of this matter, I am not persuaded to exercise my discretion to dismiss the matter before me under s 399A of the Act as sought by MSS.

Conclusion

[24] For the reasons outlined above, the application by MSS under s 399A of the Act is dismissed. The substantive matters of MSS’ jurisdictional objection and Mr Igini’s unfair dismissal application will proceed to be determined in accordance with previous directions issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR602081>

 1   Dominic Igini v MSS Security Pty Ltd T/A MSS Security[2018] FWC 1768.

 2 Ibid at paragraph [17].

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

 4   Adrian Whittaker v Total Harvesting Pty Ltd T/A Total Harvesting[2018] FWC 1583

 5   Print PR956665, 21 March 2005, Giudice J, Hamilton DP and Larkin C.

 6   Adrian Whittaker v Total Harvesting Pty Ltd T/A Total Harvesting[2018] FWC 1583 at paragraph [24].