James Spence v Urm Australia Pty Ltd

[2020] FWC 3964

[2020] FWC 3964

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Spence
v
URM Australia Pty Ltd
(U2020/7419)

DEPUTY PRESIDENT MASSON MELBOURNE, 31 JULY 2020

Application for an unfair dismissal remedy – application to dismiss pursuant to s. 399A – granted.

Introduction and background

[1] On 28 May 2020, Mr James Spence (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment on 7 May 2020 by URM Australia Pty Ltd (the Respondent) was unfair.

[2] The matter was allocated to my chambers on 25 June 2020 following which directions and a notice of listing was issued to the parties on 26 June 2020. The matter was listed for arbitration on 2 September 2020 and the directions required the Applicant to file his submissions, witness statements and other documentary material on which he intended to rely by no later than the close of business on Friday 17 July 2020.

[3] The matter was also listed for Mention/Conference before me on 2 July 2020, the purpose of which was to deal with any procedural matters related to the conduct of the matter and/or arising from the directions issued. During the course of the Mention/Conference permission was granted to both parties to be legally represented pursuant to s.596 of the Fair Work Act 2009 (the Act).

[4] During the Mention/Conference on 2 July 2020 the Applicant’s representative advised that the Applicant declined to participate in a member assisted conciliation that was offered to the parties to be conducted in the following week. At the conclusion of the conference the Applicant was requested to confirm within one week the number of witnesses that he intended to call to give evidence at the hearing and was also invited to reconsider his rejection of the offered member assisted conciliation.

[5] Following conclusion of the Mention/Conference on 2 July 2020 the Applicant’s representative wrote to my chambers that same day to advise that he ceased to act for the Applicant. The Applicant also subsequently wrote to my chambers on 2 July 2020 confirming his wish to now proceed directly to hearing. My chambers then responded to the Applicant in correspondence on 3 July 2020 noting his advice of the previous day and reminding him that he was required to file his material in accordance with the directions by the close of business 17 July 2020.

[6] At 4.36pm on 15 July 2020 the Applicant wrote to my chambers seeking an extension of time within which to file his material. The reasons cited by the Applicant included that he had been suffering financial difficulties and personal issues with his health. The latter was not elaborated upon in the Applicant’s email. The request for an extension of time for the filing of the Applicant’s materials was declined in correspondence sent by my chambers to the Applicant at 9.26 am on 16 July 2020.

[7] The Applicant failed to file his materials by the close of business on Friday 17 July 2020 following which my chambers wrote to the Applicant at 9.36 am on Monday 20 July 2020 noting that the Applicant had failed to comply with the directions. Notwithstanding that non-compliance, the Applicant was granted an extension of time until the close of business on Tuesday 21 July 2020 to file his material. The Applicant was advised in that correspondence that if he failed to comply with the revised date for the filing of his material the matter would proceed to a non-compliance hearing.

[8] On the 21 July 2020 the Applicant sent an email to my chambers to which he attached four documents, the relevance of which was unclear. The material filed did not include an outline of submissions or any witness statement/s that the directions issued required to be filed. My chambers subsequently wrote to the Applicant on 22 July 2020 and advised him that the material that he had filed failed to comply with directions issued and that the matter would now be listed for a non-compliance hearing. Directions were then sent out to the parties listing the matter for a non-compliance hearing on 24 July 2020.

[9] On 24 July 2020 the non-compliance hearing was conducted at which the Applicant, the Respondent and its representative appeared. The Applicant did not dispute that he had not complied with the directions and again referred to his personal issues. The Respondent’s representative then made an oral application pursuant to 399A that the application should be dismissed by reason of the Applicant’s failure to comply with a direction of the Fair Work Commission (the Commission) (s. 399A(b)).

[10] The Respondent made further oral submissions at the non-compliance hearing that there were also grounds to dismiss the application pursuant to s. 587 on the basis that the application for an unfair dismissal remedy had no reasonable prospect of success (s 587(1)(c)). Specifically, the Respondent argued that the Applicant had failed to engage at all with the grounds relied on by the Respondent for his dismissal. Critically, the Applicant had not addressed the alleged theft of a company vehicle, which was reported to the Police following the Applicant’s dismissal and was not recovered from Applicant until the 26 June 2020.

[11] The Applicant was then offered an opportunity to make written submissions on why his application should not be dismissed pursuant to ss 399A & 587 of the Act. He was directed to file any such submissions by 4.00pm Tuesday 28 July 2020. On 28 July 2020 the Applicant sent correspondence to my chambers to which he attached the following documents;

(i) TAC Certificate of Capacity dated 1 July 2020 which deals with physical injuries suffered in a workplace accident on 8 April 2020. States the Applicant has no capacity for employment from 4 July 2020 to 31 August 2020.

(ii) TAC Certificate of Capacity dated 3 July 2020 which deals with “Depression/Bullying at work since 2019 by his employer Seeking help since February 2020”. States the Applicant has no capacity for employment from 4 July 2020 to 31 August 2020.

(iii) Medical referral of the Applicant to a Dr Ravi Srinivasaragu, dated 1 July 2020.

[12] Despite being invited to, no submissions were made by the Applicant in relation to why his application should not be dismissed pursuant to ss 399A & 587 of the Act. Consequently, I can only reasonably infer from the material filed by him on 28 July 2020 that he submits that his medical condition is such that he was not capable of complying with the Commission’s directions and will not be for an indeterminate period.

Statutory Provisions

[13] Section 399A of the Act relevantly 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.”

[14] Section 587 of the Act also provides as follows;

“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.”

Consideration

[15] Turning firstly to the s 399A application made by the Respondent. I am satisfied that the Applicant failed to comply with the initial directions that required the filing of his material by close of business on 17 July 2020. This was in circumstances where he had specifically communicated with my chambers on 2 July 2020 pressing for the matter to proceed to arbitration.

[16] When an extension of time was provided to the Applicant within which to file his material, all that was then received on 23 July 2020 was an email to which were attached four documents the relevance of which was not possible to discern in the absence of any submissions or a witness statement. The material furnished by the Applicant failed to comply with the directions issued by the Commission in both form and substance.

[17] When afforded an opportunity to make submissions regarding the application made by the Respondent that his application be dismissed pursuant to s. 399A, the Applicant provided the TAC Certificates of Capacity and the specialist medical referral to which I have referred above at [11] but made no submissions as to why his applications should not be dismissed pursuant to s. 399A & s. 587 of the Act.

[18] The following can be said about the documents provided by the Applicant. Firstly, while the TAC Certificates of Capacity indicate he has no capacity for work until at least 31 August 2020 they do not indicate that he is incapacitated to an extent that he is incapable of advancing his application before the Commission.

[19] Secondly, the medical specialist referral is dated 1 July 2020 and pre-dated both the Mention/Conference conducted on 2 July 2020 and the confirmation from the Applicant on 2 July 2020 that he wished to proceed to arbitration. No mention was made by the Applicant in either the Mention/Conference or in his subsequent correspondence dated 2 July 2020 that his medical condition was such that he would be unable to comply with the directions. Similarly, the TAC Certificates of Capacity both arose from consultations with his treating medical practitioner on 3 July 2020 and were not raised with the Commission until 28 July 2020. I am not persuaded that the TAC Certificates of Capacity and the specialist medical referral provided by the Applicant provide an acceptable explanation for the Applicant’s failure to comply with the directions for the filing of his material.

[20] While consideration of the Respondent’s s. 399A application must start from the presumption that the Applicant is entitled to have his case heard, 1 it was made clear in Ghalloub v AON Risk Services Australia that the right to have one’s case heard is qualified by the terms of the legislation.2 In the present case the Applicant’s right to have his case heard is qualified by an obligation for him to prosecute his case and comply with directions of the Commission.

[21] The Applicant bears a responsibility to make his case and provide sufficient material such that the Respondent knows the case that is put against it. The Applicant has singularly failed to do so. It is in my view not merely the circumstances of the Applicant that must be considered. The Respondent is also entitled to expect the Commission to deal with the application for an unfair dismissal remedy made by the Applicant in a fair and efficient manner.

[22] In the circumstances I have decided to grant the Respondent’s application under s.399A(1) to dismiss the Applicant’s unfair dismissal remedy. Consequently, it is unnecessary for me to deal with submissions made regarding whether grounds exist to dismiss the application pursuant to s. 587 of the Act.

[23] An Order giving effect to this decision will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1 See General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at para [8], Micheletto v Korowa Anglican Girls’ School [2003] AIRC 1391 [PR940392] at [14].

 2   Ghalloub v AON Risk Services Australia [PR956665] at [23]