Jacob Wells v Harris Group Enterprises Pty Limited T/A Harris Trade Plumbing Supplies

[2021] FWC 6071

[2021] FWC 6071

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jacob Wells
v
Harris Group Enterprises Pty Limited T/A Harris Trade Plumbing Supplies
(U2021/4977)

DEPUTY PRESIDENT CLANCY MELBOURNE, 6 OCTOBER 2021

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

[1] On 8 June 2021, Mr Jacob Wells made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). In his Form F2 – Unfair Dismissal Application (Form F2), Mr Wells said his employment had been terminated by Harris Group Enterprises Pty Limited T/A Harris Trade Plumbing Supplies (Harris Group) on 7 June 2021 and that the termination took effect on the same day. Mr Wells provided a telephone number to contact him on in his Form F2. He also supplied an email address which has been used by the Commission throughout the conduct of this matter. On no occasion has an email sent from the Commission to Mr Wells received the response that it was “undeliverable”.

[2] On 15 June 2021, Harris Group filed their Form F3 – Employer response to unfair dismissal application (Form F3). A telephone conciliation took place on 30 June 2021 with a Commission staff member, but the matter did not resolve. Due to delays the Commission was experiencing because of ongoing issues related to COVID-19, an email was sent to Mr Wells on 20 August 2021. This subsequently required follow-up by telephone and email due to there being no initial response from Mr Wells and he was warned that his application might be dismissed unless he confirmed his intentions. On 6 September 2021, Mr Wells apologised for his failure to respond, citing work commitments, and advised he wished to proceed with his unfair dismissal application. He sent an email to this effect on the same day.

[3] The matter was therefore allocated to me on 6 September 2021 for its ongoing management through to arbitration. I caused a Notice of Listing for a Mention to take place at 8.45am on 8 September 2021 and Directions to be sent to the parties. The Directions made on 6 September 2021 outlined that Mr Wells was to file and serve his material for the arbitration by no later than 3.00pm on 27 September 2021 and Harris Group was to file and serve its material in response by no later than 3.00pm on 18 October 2021. The Notice of Listing and accompanying Directions were sent to Mr Wells’ nominated email address.

[4] After some variations to its starting time were raised and resolved, the Mention took place on 8 September 2021. Mr Wells and his mother were in attendance and in my discussion with the parties, I highlighted the importance of compliance with the Directions and the possible consequences for them if they did not comply. No material received from Mr Wells by 3.00pm on 27 September 2021. My Chambers received an email from the Respondent’s representative at 3.35pm requesting that the matter be dismissed pursuant to s.399A of the Act on the basis that Mr Wells had unreasonably failed to comply with the Directions. Correspondence was sent to Mr Wells and his mother through their nominated email addresses at 5.07pm on 27 September 2021, advising that Mr Wells had not complied with the Directions, that Harris Group had made a s.399A application and that the matter would be listed for a Non-compliance Hearing by telephone at 9.30am on Wednesday 29 September 2021. A Notice of Listing was subsequently sent to the parties via email, and they were requested to provide their telephone numbers in advance of the non-compliance hearing. My Associate attempted to call both Mr Wells and his mother on their nominated telephone numbers on Tuesday 28 September 2021 but neither answered. Accordingly, voicemail messages were left for both Mr Wells and his mother advising them of the email sent at 5.07pm on 27 September 2021 and confirming that the Non-compliance Hearing would be taking place on Wednesday 29 September 2021 at 9.30am. Mr Wells did not respond to the email, the Notice of Listing or the voicemail message.

[5] The Non-compliance Hearing took place before me at 9.30am on 29 September 2021. Mr Wells could not be contacted despite four attempts to call his nominated telephone number and the leaving of two voicemail messages. An attempt was also made to call Mr Wells’ mother on her nominated telephone number and a voicemail message was left. It subsequently became apparent that she made an attempt to call my Chambers while the Non-compliance Hearing was in progress. This call went through to the voicemail of my Chambers. During the Non-compliance Hearing, I determined that Mr Wells would be afforded the opportunity to respond to the s.399A application and explain why he had neither complied with the Directions to file his material nor attend the Non-Compliance Hearing. Correspondence was sent to Mr Wells and his mother via email after the Non-compliance Hearing that directed Mr Wells to file submissions explaining why he had failed to attend the Non-compliance Hearing on 29 September 2021 and why he had not complied with the Directions made on 6 September 2021. It was outlined in that correspondence that a response was required by no later than 12.00pm on Monday 4 October 2021. The correspondence also advised that if the Commission did not receive a response, the s.399A application would be determined based on the material before the Commission and the unfair dismissal application Mr Wells had made would likely be dismissed without further notice.

[6] Mr Wells’ mother telephoned my Chambers on 30 September 2021 and advised that Mr Wells had been hospitalised. Her attention was directed to previous correspondence sent by my Chambers, it was explained that a s.399A application had been made by the Respondent and she was advised that a response was required by 12.00pm on 4 October 2021. In response, my Chambers received an email from Mr Wells’ mother at 1.47pm on 30 September 2021 advising that Mr Wells was not medically fit to either file his material by 3.00pm on 27 September 2021 or attend the Non-compliance Hearing due to being hospitalised and sedated. Mr Wells’ mother requested the unfair dismissal application not be dismissed. This email was forwarded to Harris Group and its representative and Harris Group was offered the opportunity to provide a response by 12.00pm on 4 October 2021.

[7] In written submissions dated 4 October 2021, Harris Group submits:

1) Mr Wells failed to comply with the Directions issued by the Commission when he failed to file his material (s.399A (1)(b));

2) Mr Wells failed to attend a conference on 29 September 2021 (s.399A (1)(a)); and

3) The Commission has been required to continuously follow up with Mr Wells during the course of this proceeding and has made multiple attempts to contact him, with these matters to be weighed as part of the consideration of the failure of Mr Wells to comply with the Commission’s directions.

[8] Harris Group submits Mr Wells has had opportunity to participate in conferences and sufficient time to prepare and file material in support of his case but has elected not to do so. It says Mr Wells has not been proactive in the prosecution of his unfair dismissal application, he has neither sought adjournments nor extensions and that while Mr Wells submits he is experiencing hardship and has had medical treatment, he has not provided any evidence in support, such as medical certificates or the dates of his period of incapacity.

[9] Harris Group submits Mr Wells’ initial failure to comply with Directions dates back to 20 August 2021, with his most recent failure to comply being 29 September 2021. Harris Group asserts that reasons for not complying with Directions by the Commission given by Mr Wells are not exceptional and as he has failed to comply with the Commission’s Directions, his application for unfair dismissal remedy should be dismissed.

[10] Harris Group also foreshadows an application for costs, presumably for the Non-compliance Hearing, on the basis that Mr Wells has acted unreasonably in not adhering to the Directions of the Commission and by doing so, has caused it to incur costs in having to participate in proceedings directed by the Commission.

Determinative Conference

[11] Having reviewed the correspondence received from both parties, I listed the s.399A application for a Determinative Conference by telephone at 11.00am on Wednesday 6 October 2021.

[12] Mr Wells’ mother was telephoned by my Associate on 5 October 2021. It was explained that the Determinative Conference was being held for the purpose of confirming the information in the written submissions of the parties. Ms Wells advised she was reluctant to attend as she could not obtain permission from Mr Wells to speak on his behalf. I subsequently issued an Order requiring Ms Wells to attend. The Order was sent to Ms Wells twice and she was advised by email that she was required to attend. A Notice of Listing was also sent. Ms Wells did not subsequently attend the Determinative Conference despite a number of phone calls being made to her by my Associate and voice mail messages being left.

[13] Mr Anthony Schnerring from Harris Group attended the Determinative Conference. Mr Brett Pomroy, paid agent, was given permission to represent Harris Group as I was satisfied this would enable the s.399A application to be dealt with more efficiently taking into account complexity attached to it. Harris Group relied on its written submission and, in addition, emphasised that neither they nor the Commission was in possession of the medical history of Mr Wells.

Consideration – s.399A

[14] 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.

[15] As such, on application by an employer under s.399A of the Act, the Commission has the discretionary power to dismiss an unfair dismissal application on the basis that there has been unreasonable non-compliance with directions of the Commission or an unreasonable failure to attend a conference or hearing.

[16] The relevant Explanatory Memorandum said of the proposed s.399A that 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.” 1

[17] Mr Wells has to date failed to comply with a Direction of the Commission made on 6 September 2021 that he file and serve material. The Commission imposed this requirement so that Mr Wells’ unfair dismissal application could be heard and determined in a timely manner, having regard to its obligations in s.577 of the Act. Mr Wells also failed to attend a Ntracon-compliance Hearing on 29 September 2021.

[18] 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) 2. 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; and

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

[19] While not an exhaustive list of matters that may be considered, I will adopt the approach of the Full Bench in Ghalloub, in deciding the application made pursuant to s.399A.

[20] Harris Group complains that Mr Wells did not initially provide a response to the request from Commissioner Bissett made on 20 August 2021, but I note he eventually did so on 6 September 2021. In any event, the request from the Commissioner was not a direction per se and I am prepared to regard Mr Wells’ failure to comply with my Directions dated 6 September 2021 as the first and thus far only direction of the Commission with which he has not complied. As to the reason why Mr Wells has not complied with my Directions or attended the Non-compliance Hearing, I am not persuaded that I should disregard the email advice from Ms Wells that Mr Wells was not medically fit to do so, having been hospitalised and sedated. It has not been possible to verify this advice one way or the other, but I am prepared to accept that it raises a prima facie case that Mr Wells has not acted unreasonably. As such I am not satisfied that Mr Wells either unreasonably failed to comply with the Direction that he file and serve his material by 3.00pm on 27 September 2021 or that he unreasonably failed to attend the Non-compliance Hearing on 29 September 2021.

[21] I have noted Mr Wells is an unrepresented party and I also acknowledge the sense of frustration Harris Group feels about the conduct of the matter to date, however, I am not satisfied Mr Wells has evinced an unwillingness to pursue his case. Further, I am not persuaded that Mr Wells’ delay in filing has resulted in prejudice to Harris Group to date or that the circumstances of this matter are such that Mr Wells should at this time be denied his entitlement to be heard on his unfair dismissal application.

[22] However, as a general rule, parties must comply with directions of the Commission to ensure an application is progressed and finality is achieved. Once Mr Wells is medically fit enough to continue with his unfair dismissal application, he should not assume that further non-compliance with directions of the Commission or any non-attendance going forward will be acceptable. In the event Mr Wells needs an extension to file material or an adjournment in the future, he needs to make application to the Commission prior to the applicable date.

[23] Whether any non-compliance is reasonable or unreasonable will depend on the circumstances of each case, but Mr Wells should now be on notice that any future non-compliance or non-attendance on his behalf could have serious consequences. In the circumstances of this s.399A application however, I am not persuaded that I should exercise the discretionary power to dismiss the unfair dismissal application that has been made by Mr Wells. Additionally, I decline to entertain an application for costs at this time. Harris Group can revisit the question of costs at a future point in the proceeding if it so chooses.

[24] I consider it appropriate to vacate the Directions made on 6 September 2021, including the Direction for an Arbitration Conference/Hearing to take place on 4 and 5 November 2021. I will require an update by 3.00pm on Friday 5 November 2021 in relation to Mr Wells’ capacity to prepare for and participate in an arbitration conference/hearing and based on this update, I will determine the next steps for the further conduct of his unfair dismissal application.

DEPUTY PRESIDENT

Appearances:

Mr B. Pomroy, on behalf of Harris Group Enterprises Pty Limited T/A Harris Trade Plumbing Supplies.

Hearing details:

2021.
Melbourne.
6 October.

Printed by authority of the Commonwealth Government Printer

<PR734617>

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

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