Jeffrey Piefke v The Workpac Group T/A Workpac

[2020] FWC 5613

[2020] FWC 5613

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jeffrey Piefke
v
The Workpac Group T/A Workpac
(U2020/8869)

COMMISSIONER WILLIAMS PERTH, 26 OCTOBER 2020

Termination of employment - application to dismiss - s.399A and s.587.

[1] This decision concerns an application made by Mr Jeffrey Piefke (Mr Piefke or the Applicant) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The respondent is The Workpac Group T/A Workpac (Workpac or the Respondent).

[2] The matter was the subject of a conciliation conference conducted by a Commission staff member on 23 July 2020 however this was not successful and consequently the application was allocated to myself for hearing and determination.

[3] On 28 July 2020 the Commission issued the parties a notice of listing for a hearing to be held on 5 October 2020. Directions that were attached to the notice of listing required the Applicant to file a written statement of evidence for each witness to be called and an outline of submissions and a copy of any documents by 24 August 2020 and similarly directed the Respondent to provide its materials in response by 21 September 2020.

[4] The subsequent sequence of events is detailed further in this decision.

[5] On 31 August the Respondent filed an application to dismiss Mr Piefke’s application.

[6] The Respondent relies on s.399A of the Act and argues the Applicant has unreasonably failed to comply with directions of the Commission.

[7] As an alternative argument, the Respondent seeks to rely on s.587 of the Act and argues the application should be dismissed on the basis that it is frivolous or vexatious; or has no reasonable prospects of success.

Factual background

[8] On 23 July 2020 immediately after the unsuccessful telephone conciliation conference the Commission’s staff wrote to the parties, including Mr Piefke, which letter relevantly read as follows.

“In preparing for your conference/hearing, we suggest that you take some time to familiarise yourselves with the requirements of a formal Commission proceeding and, in particular, that you visit the Commission’s website to gain an understanding of the process (

You should soon hear from the Chambers of the Member of the Commission who has been allocated to deal with this application. The Member may issue directions for the preparation of documents (outline of submissions and witness statements - refer explanation below) and time frames for the filing of those documents and may list the application for a mention (conference) to discuss directions.

An outline of submissions is a document that summarises the key points of your case. It should indicate why and how you believe the dismissal was either unfair or fair, and/or it should outline the reasons why you believe that the Commission is or is unable to deal with the application. The outline should be clear and easy to follow and allow the person reading it to get a perspective of your case and some insight into why you thought and acted as you did.

A witness statement is a written statement made by any person who will be giving evidence at the formal proceeding. In it the person records their knowledge and/or observations about relevant issues or events. At the formal proceeding the witness will normally be asked to confirm the truthfulness of their written statement and be subject to cross examination on it. If you are an applicant and intend to give evidence, you must also file a witness statement yourself.” (Original emphaisis)

[9] On 28 July 2020 Directions were issued to the parties. These were attached to the notice of listing for the hearing of Mr Piefke’s application which was to be heard on 5 October 2020. Relevantly these directions read as follows.

“The Commission’s directions must be complied with. If Commissioner Williams will be chairing a second conciliation/mediation before this hearing that does not affect the obligation to comply with these directions.

If the applicant does not comply with these directions the application may be dismissed. If the respondent does not comply the matter may be decided on the basis of the applicant’s materials only.

…

Where possible, the Commission will determine whether permission will be granted based on the materials filed and will advise the parties of the outcome prior to the hearing.

Requirements for the Hearing

3. The applicant is directed to file with the Commission a written statement of evidence for each witness to be called (including the applicant), an outline of submissions and copies of any documents that will be relied on by 4:00pm Monday, 24 August 2020 and at this time serve copies of these on the respondent.

4. The respondent is directed to file with the Commission a written statement of evidence for each witness to be called, an outline of submissions and copies of any documents that will be relied on by 4:00pm Monday, 21 September 2020 and at this time serve copies of these on the applicant....” (Underlining added)

[10] Mr Piefke did not file any statements of evidence nor an outline of submissions by 24 August 2020 as he had been directed to.

[11] Consequently the Commission wrote to Mr Piefke the following day, 25 August 2020, in the following terms,

“Dear Mr Piefke,

On 28 July 2020 we sent the attached Notice of Listing and Directions to you concerning the hearing of your application.

Our records indicate that you have not complied with the Commission’s direction to file your materials.

Consequently I now again direct you to file in the Commission and serve on the Respondent a written statement of your evidence (if you intend to be a witness) and a written statement of evidence from each supporting witness, if any, and an outline of your submissions and copies of any documents that will be relied on by 4:00pm Friday, 28 August 2020.

If you do not comply with this further direction the Commission will take your repeated non- compliance as demonstrating you do not want to continue with your application and your application will be dismissed (see section 587 of the Fair Work Act 2009) and the matter closed.” (Underlining added)

[12] The same day at 11:29 a.m. the Applicant responded by email as follows:

“To whom it may concern,

As stated I’m waiting for government bodies to release freedom of information.

You may contact AMSA as there is and active case,were by riotinto admit to there so called mistake. Due to the data that is now know

Public and in your possession

section 12 duty of care.

All the data is in your possession, is all government bodies I need and why would people hide this data is nothing short of murder as the data prove .

Piefke family” (sic)

[13] In reply, also on 25 August 2020 at 12:50 p.m. my chambers responded as follows:

“Dear Mr Piefke,

The Commission has required you to provide your materials in support of your application by 4:00pm Friday, 28 August 2020 and a failure to do so may result in your application being dismissed.

Whilst we understand you have made requests to another organisation for the release of information, you are still required to comply with the Commission’s Directions. Our Directions require you to file 1) a written statement of your evidence which is a document you prepare of your account of the relevant events, 2) a written statement of the evidence of any witness (if you have any), 3) a written outline of submissions which is a document you prepare summarising the key points of your case and 4) any other documents you have access to that you say are relevant (if you have any).

Your materials should be emailed to [email protected] and copied to the Respondent.” (Underlining added)

[14] On 26 August 2020 at 11:10 a.m. the Applicant sent the following email to the Commission. This email was not copied to the Respondent.

“Dear Commission

I’m sorry for the miss communication and not informing work Pac and riotinto for not understanding their own safety risk management tools and data science.

As of me being stood down for sharing safety information that has been hidden.

In which is against rio risk management systems protocols and why people end up dead.

In your possession is safety data and tools that I put in place to insure my safety as I had to live on top of this devil and operated by AMSA law duty of care.

This data safety system save lives and takes marine safety and places science at the forefront of safety.

In laymen terms welcome to the new world of safety.

In which Riotinto trained me to do so

I thank them for being able to have the opportunity to change marine safety for ever and a day and place safety science in controlling our future safety risk management outcomes and is nothing short of gods work.

As in the the data report and photo shows the cape lambert vessel Apollo in were a catastrophic failure occurred.

If this risk management system is hidden from safety risk management its self’s and human intervention.

If they don’t under stand there own science as in which RIOTINTO and ROLLS ROYCE are world leaders in this Tec Knowledge .

Now were does that leave Me and my family alone as I was alone on top of the devil as the report shows crying out for help as the reports shows.

If there wasn’t a problem which is scientifically impossible my kids would be sleeping on a floor.

AMSA knocked on RIOTINT’S door with the safety data report that has been hidden and I allegedly stole.

7 months ago I contacted AMSA NT informing there was unsafe practises and safe science system data being hidden.

They informed me that riotinto lawyers contacted them informing Amsa that they didn’t have to pass on risk management data.

I was gutted to why would you hide a safety system of the third dimension.

its murder.

the report principle and implication of the power of this safety system needs to be understood before the bully club kill someone in which the data report show hands down.

Thanks to a miracle I returned to Dampier with work pac and rio gave me a new log on.

In logging on my old SAP number appeared, I informed Rio management

Every time I logged on I had to remove my Sap number for 15 years and place my new sap number in every time I logged on.

I then opened my Email account heaven and behold 12 years of archives have been removed by who.

The only archives that someone forgot to remove and I know who. Good man one of the great people that work for RIO and most are.

is now in public hands.

I sent it to Riotinto, Rolls royce ,NT Worksafe ,AMSA this is my duty of care and I wish it wasn’t.

To understand this safety and science data then to place 200 ton barge and 6 souls onboard and steam across the GULF in 30 knots of wind is scientific murder.

Then pull the vessel BARU out of the water for a 5 year refit.

Then to not scientifically test the R/R thruster as is stated in the public safety data information management report.

Then rolls Royce reinstall the bent propeller that was bent by a chain 8 years ago and send the devil back to full duty operations

with a vessel that is scientifically data safe and ready for full duty operation in which is scientifically impossible as it did not happen..

With 2 new propellers sitting in front of management office for 12 years

I wish this was not the case god help me and my kids.

They take a vessel that has 5 bearings which equals the hole drive live in self-destruct mode

The evidence is all there in your possession

Then send it back so history repeats itself.

Then now the Data reports are public for the greater good of safety for all to learn by Knowledge sharing

Then now RIOTINTO have come back to AMSA saying they made a mistake

Then now I asked AMSA for a copy of the statement who informed me that I had to contact freedom of information

Then now they have openly admitted a mistake and what part of the word mistake are they implying.

They made a mistake blowing up Caves in which is scientifically impossible to put back together

Maybe they can scientifically put my kids back together and others going through the same thing from the same bully club.

two way this goes get smart or get smarter the way safety works for kids of the future.

Be safe

Piefke family” (sic)

[15] On 27 August 2020 at12:26 p.m. the Applicant sent the following email to the Commission. The email was not copied to the Respondent.

“Hi commission

Once again im sorry for the miss communication.

In this second occasion work pac offer me a full time job.i accepted the position and work pac confirmed ‘

Rio management handed me an award for my good work. Great rio personal and like to thank my supervisor

A great man

Then WOTK PAC to stand me down informing me by email that riotinto wanted a meeting with me and stand in person and Karla Pearce sorry, from work pac ‘

4 hour later I receive a message from work pac informing me that the meeting was off

Then message me to say that the meeting was between me and her (Karla)

This is were the same thing happen again.

I go to check my email to take a photo of the email that inform me that rio were taking charge.

In doing so Work pac withdrew the email and reading the withdrawal email it states I wish to withdraw the email

so why did rio tell work pac to withdraw without my consent.

So I emailed Karla then called her asking why you wished to withdraw an email with direcrt instruction from riotinto without my consent.

Hear we go again the email returned to me with in minutes.

Then I receive message saying work pac wanted to meet for a meeting I accepted

Then that got canned and they informed be email that they wanted responsive emails.

He we go individuals using and abusing riot into authority say one thing and do the other hiding data, emails

removing emails that are rio tagged from my private email account

I lost my job for that reason but work Pac 20% rio can remove there emails from me and get away with it.

So ask the lawyer that told work pac to remove rio tagged email

And why they wouldn’t pass on the safety DATA to amsa

Once the risk management report that was made public

Rio lawyer respond to amsa admitting they made a mistake.

Please thankyou and excuse us all including the KIDS

Stay safe

Piefke family” (sic)

[16] On 28 August 2020 at 8:13 a.m. the Applicant sent the following email to the Commission. This email was not copied to the Respondent.

“Hi commissioner

This is my duty of care

Fleet standalone testing

How to test a roll Royce thruster for a bent propeller throughout riotinto fleet and beyond

Step 1 board vessel mark port and starboard on the deck directly over the thrusters and in line.

Step 2 use the testing platform in the risk management system

Step 3 Start up vessel and follow the testing sequence

Step 4 then test and take readings

Step 4 then enter engine room thruster rooms and mark the top of the thruster units

Step 5 then carry out synchronised testing

Step 6 Carry out test on your fleet

Step 7 waterfall systems can still be used without manufactures perimeters and a base line can be created for the fleet

Step 8 now take control of your fleet starting from standalone then look forward with the rest of the risk management system

This test is called standalone as bearing numbers and manufactures are sperate base lines and as new

will show healthy data @ the time.

We come across standalone through natural harmonics in which I asked R/R to physically listen on deck and from R/R directly informed me we had a bend propeller.

this is were standalone started

Standalone testing will save lives as the risk management report shows

I would like to thank Richard kier R/R , Jake Matthews rio for training and supporting me as it didn’t happen overnight.

Great men

I would like to thank riotinto for allowing me the opportunity for changing safety for ever.

And this information is from my family thanking riotinto for looking after my family past and present.

Be safe

Piefke family”

[17] The Commission forwarded copies of Mr Piefke’s emails of 26, 27 and 28 August 2020 to the Respondent.

[18] On 31 August 2020 the Respondent filed an application for dismissal of Mr Piefke’s unfair dismissal application (the Respondent’s application to dismiss).

[19] The Respondent relies on s.399A if the Act and argues the Applicant has unreasonably failed to comply with directions of the Commission. The Respondent submits the Applicant’s emails which purport to be his outline of submissions, and the large number of documents attached, are not relevant to the application, do not articulate any basis on which the Applicant seeks to apply for an unfair dismissal remedy nor does he mention the fact of dismissal. It is submitted this constitutes a failure to comply with the directions issued by the Commission in circumstances where the Applicant has clearly been informed about the necessity to comply with the directions.

[20] As an alternative argument, the Respondent seeks to rely on s.587 of the Act and argues the application should be dismissed on the basis that it is frivolous or vexatious; or has no reasonable prospects of success. It is submitted the Applicant’s failure to articulate any case by not filing materials that mention the fact of his dismissal nor addressing any consideration in s.387 of the Act that might support a finding that a dismissal was harsh, unjust or unreasonable supports the application being dismissed on that basis it is frivolous or vexatious. In addition, the Applicant’s failure to provide any evidence in the form of witness statements or relevant documents that is of sufficient quality and weight to be able to establish his case and succeed in his application justifies a finding the application has no reasonable prospects of success.

[21] Having regard to the materials filed by the Applicant the Respondent submits it is now in the position of having to attempt to piece together the Applicant’s application with a view to being able to prepare its submissions, witness statements and other documents in response. In circumstances where the Applicant’s materials do not provide a basis for the proceedings to which the Respondent may reasonably construct a response, this cannot be regarded as according a ‘fair go all round’ to the employer, as required under s 381(2) of the Act. Accordingly, the Respondent seeks that the Commission exercise its power to dismiss the application.

[22] As a consequence of the Respondent’s application to dismiss on 2 September 2020 at 8.53 a.m. the following email was sent to the parties,

“Dear Mr Piefke and Ms Bennett,

Commissioner Williams advises that the Hearing of Mr Piefke’s unfair dismissal remedy application, listed for 10:30am Monday 5 October 2020, will be cancelled and instead on that same date and time he will hear Workpac’s application that the unfair dismissal remedy application be dismissed based on s.399A and/or s.587 of the Fair Work Act 2009 which are attached.

I will shortly be sending out a new Notice of Listing with Directions which will explain what each party is now required to do.”

[23] Shortly thereafter at 10.11 a.m. a notice of listing with the following Amended Directions was issued:

“AMENDED DIRECTIONS

These Amended Directions replace the previous Directions issued on 28 July 2020 and must be complied with.

Requirements for the s.399A/s.587 Hearing

1. The respondent is directed to file with the Commission a written statement of evidence for each witness to be called, an outline of submissions and copies of any documents that will be relied on in support of their s.399A/s.587 application by 4:00pm Tuesday, 15 September 2020 and at this time serve copies of these on the applicant.

2. The applicant is directed to file with the Commission a written statement of evidence for each witness to be called (including the applicant), an outline of submissions and copies of any documents that will be relied in reply on by 4:00pm Monday, 28 September 2020 and at this time serve copies of these on the respondent.

All witnesses must attend the hearing. Witness statements stand as the evidence of that witness subject to objection and cross examination.

Filing of documents in the Commission shall be via email sent to the Associate at [email protected]. If email filing is impractical alternative filing arrangements will need to be made prior to the relevant date.

Generally, any correspondence or documents sent to the Commission must also be sent to the other party. The Commission may forward your correspondence and documents to the other party.

The parties can settle this matter privately between themselves at any time. If the applicant does not want to take this matter any further they can withdraw their application. In either case please notify the Commission promptly in writing so the hearing can be cancelled.” (Underlining added)

[24] The same day (2 September 2020) at 1:35p.m. the following email was sent to the Applicant:

“Dear Mr Piefke,

I refer to the attached emails you have sent to the Commission today and the voice message you left. I have attempted to return to your call but I get a message that the line is busy.

Firstly, I repeat please do not send the Commission any correspondence without copying in Ms Bennett and Ms Steenstrup of Workpac (their email addressed have been copied into this email). They are also required to copy you in on all correspondence to the Commission.

In response to the questions you raise in your correspondence and your voice message please refer to the Amended Notice of Listing and Amended Directions issued today. It explains that you will have an opportunity to respond to Workpac’s application to dismiss at the 5 October 2020 hearing and that in preparation for that hearing you will need to file written materials in response to the application after Workpac has filed their written materials. There are no specific forms in the Commission available to respond to an application to dismiss so you are free to provide it in whatever format as long as it is in writing and copied to Workpac at the same time it is sent to the Commission.”

[25] On 15 September 2020 in compliance with the Commission’s Amended Directions the Respondent filed in the Commission and served on Mr Piefke their outline of submissions, document list and copies of documents on which it relied in support of the Respondent’s application to dismiss.

[26] In response the same day at 1:33 p.m. the Applicant sent the following email to the Respondent’s representative, Commissioner Williams’s Chambers, two emails addresses for persons apparently at the Australian Maritime Safety Authority, a person at the Australian National University, a person at Rio Tinto and a person at the Law Society of the Northern Territory.

“Your missing the water fall data that’s in your possession and emails with names to boot to prove

Are you missing the 120 archives I sent a pond stealing.

I was under the impression you cant make due to a public holiday in Queensland as well as c19

Is it on or off or are rio showing up as to the first occasion in were you made a withdrawal from my email account

To paper work twice in the same breath you must be good

So when you make your mind up can you let my kids know” (sic)

[27] The same day my chambers responded as follows,

“Dear Mr Piefke,

You have now received the Respondent’s submissions and documents in compliance with the Commission’s attached Amended Directions issued on 2 September 2020. Those Amended Directions now require you to provide your reply by 4:00pm Monday, 28 September 2020. Please do so by email to [email protected] and ensure you copy in Ms Bennett from the Respondent all emails to the Commission.

I also repeat the Commissioner’s instructions to you given on 2 September 2020; the only emails you should be sending to the Commission are in response to the Amended Directions the Commission has issued or that otherwise directly concern the Commission’s proceedings in this matter (U2020/8869). Do not copy the Commission in on any correspondence relating to matters you have raised with other organisations.”

[28] Mr Piefke failed to provide any written material responsive to the outline of submissions and supporting documents filed by the Respondent as he was directed to by the Commission.

[29] At the hearing of the Respondent’s application to dismiss on Monday, 5 October 2020 Mr Piefke attended in person and was self-represented. The Respondent’s was represented by Ms K. Bennett its Senior Employee Relations Adviser.

[30] Mr Piefke made oral submissions. These submissions did not explain why Mr Piefke had failed to comply with the directions issued by the Commission, firstly in regard to his own application and secondly in regard to the Respondent’s application to dismiss.

[31] Relevantly between 28 July 2020, when the original notice of listing was provided to the parties for the hearing of Mr Piefke’s application and 5 October 2020, the date of the hearing of the Respondent’s application to dismiss, the Applicant sent many emails to the Commission.

[32] Of these most were copies of email correspondence backwards and forwards between Mr Piefke and other organisations. Those organisations include the Office of the Australian Information Commissioner, the Australian Maritime Safety Authority, the Law Society of the Northern Territory and the Disability Royal Commission.

[33] At no time has Mr Piefke provided any explanation to the Commission regarding the relevance of these emails either to his unfair dismissal remedy application or to the Respondent’s application to dismiss.

The legislation

[34] Part 3-2 Unfair Dismissal, Division 2–Protection from unfair dismissal of the Act includes section 394 under which Mr Piefke’s application was made.

[35] Section 381 of the Act, set out below, details the Objects of Part 3-2 Unfair Dismissal. The Objects include establishing procedures for dealing with unfair dismissal that are quick, flexible and informal and address the needs of employers and employees and ensuring that a “fair go around” is accorded to both the employer and employee concern.

“381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.”

[36] Included in Part 3-2 Unfair Dismissal is section 399A, set out below, which provides the Commission may dismiss an application for an unfair remedy if the Commission is satisfied that the Applicant has unreasonably failed to comply with the direction or order of the Commission relating to the application.

“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.”

[37] In addition section 587 of the Act, which applies to all types of applications other than those under section 365 or 773, provides the Commission may dismiss an application if it is frivolous or vexatious or has no reasonable prospect of success.

“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

[38] I will consider first the proper approach to dismissing a substantive application summarily and thereby denying an applicant further opportunity to prosecute their unfair dismissal remedy application.

[39] Deputy President Sams in the case of Richard Carter v The Hanna Group Pty Ltd 1 reviewed the relevant authorities and distilled the applicable principles as follows,

“[6] I glean from these judgements that the principles to be considered by Fair Work Australia (FWA) in circumstances where a defaulting party, whose application is being considered for peremptory dismissal as a result of a failure to attend proceedings may be summarised as follows:

(a) the defaulting party must be given an opportunity to explain the reasons why the Tribunal should not dismiss his/her claim for a failure to attend the proceedings;

(b) the reasons (if any are given) must be considered in the context of ensuring the proper administration of justice and fairness to both parties. In my view, this is particularly so in a s 394 unfair dismissal application, given the emphasis in the Act of ensuring ‘a fair go all round’ as referred to in s 381(2) of the Act. That section is expressed as follows:

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

(c) the defaulting party should be made aware that an application to dismiss his/her substantive application is to be considered by the Tribunal;

(d) the defaulting party should be warned that a failure to attend the hearing of such an application, without a reasonable explanation, may result in the substantive application being dismissed; and

(e) the Tribunal should ensure that all reasonable steps are taken to give an absent party every opportunity to present themselves for hearing: See Grimshaw v Dunbar (1953) 1 All ER 350 at 355.”

[40] I view these principles as equally applicable to a party who has failed to file materials in support of his case as directed, as is the situation in the matter currently before the Commission.

[41] With respect to 587(1)(b) of the Act and potentially dismissing the substantive application on the ground that it is frivolous or vexations, the Commission has in past decisions expressed the view that summarily dismissing an application on this ground requires an inquiry into the merits of an application. Absent the filing of material by an applicant such an inquiry is of course not possible and so this ground is not available to the Commission. 2

[42] I agree with this view and it is applicable in this matter.

[43] However, with respect to 587(1)(c) of the Act and potentially dismissing the substantive application on the ground that it is has no reasonable prospect of success, the Commission has in past decisions expressed the view that failure to provide evidence in support of an application, such as witness statements, is a circumstance that does support a finding that that the substantive application has no reasonable prospect of success. 3

[44] I agree with this view and it is applicable in this matter.

[45] Turning now to consider the Respondent’s application to dismiss I am satisfied that Mr Piefke was made aware that the Respondent had made that application and that this was to be heard and determined by the Commission.

[46] Mr Piefke was given a reasonable opportunity to respond to the Respondent’s application to dismiss and provide any explanation for his failure to comply with the Commission’s directions that he wished the Commission to consider and had an opportunity to respond to the Respondent’s submissions that his unfair dismissal remedy application was frivolous or vexatious or has no reasonable prospect of success.
[47] Mr Piefke had the opportunity to provide these responses in written submissions as he was directed to. Mr Piefke provided no such written submissions in response to the Respondent’s application to dismiss.

[48] Mr Piefke also had the opportunity to provide a response at the hearing which he attended. Whilst Mr Piefke did make oral submissions at the hearing he has provided no explanation for his repeated failure to comply with the Commission’s directions nor has he addressed the Respondent’s submissions that his application should be dismissed because it is frivolous or vexatious or has no reasonable prospect of success.

[49] In this case the facts are that on multiple occasions the Commission issued written directions to Mr Piefke.

[50] The Commission on multiple occasions explained the consequence of Mr Piefke failing to comply with the Commission’s directions.

[51] The Commission also reminded Mr Piefke of those directions.

[52] With respect to his own application Mr Piefke has never filed in the Commission a witness statement nor an outline of his submissions in support of this application.

[53] I find that Mr Piefke failed to comply with the directions of the Commission in relation to his application.

[54] With respect to the Respondent’s application to dismiss Mr Piefke has also never filed in the Commission a witness statements nor an outline of submission in response to the materials the Respondent filed nor to its application otherwise.

[55] Mr Piefke has not provided any reason for his failure to comply with the Commission’s direction in relation to either application.

[56] As early as 28 July 2020 the Commission informed Mr Piefke that the Commission’s directions must be complied with. Prior correspondence supported him by explaining what a witness statement was and what an outline of submissions was and referred him to the Commission’s website which contains significant material to assist applicants prepare their case.

[57] The lengthy background above speaks for itself as to when the Commission issued directions to Mr Piefke and the number of times he was reminded about those directions.

[58] Mr Piefke’s email interactions with the Commission and email interactions with other organisations demonstrate that he is entirely capable of putting his views in writing.

[59] Mr Piefke has provided no explanation to the Commission as to why he has failed to comply with the Commission’s directions with respect to his application.

[60] I agree with the view of Commissioner Bissett as explained in the decision of Nikhil Arora v Red Energy Pty Ltd T/A Red Energy 4 as follows,

“[30] Whilst the Commission appreciates that engagement with the Commission may be daunting for a person representing themselves the Applicant made his application and must be able to progress it. To this end the Commission provides extensive resources to assist parties in putting relevant material before the Commission. However, the imperative that the process of dealing with an unfair dismissal application be quick and flexible and provide for a “fair go all round,” suggests that a drawn out process with repeated non-compliance and no indication of when material might be able to be provided is to be avoided unless there is good cause. In this case there is not.

CONCLUSION

[31] For the reasons given I have decided to grant the application of the Respondent and will dismiss the Applicant’s s.394 application pursuant to s.399A(1)(b) of the FW Act.”

[61] Consequently considering in this case the unexplained repeated failure to comply with directions to file a witness statement and an outline of submissions I am satisfied that Mr Piefke has unreasonably failed to comply with directions of the Commission.

[62] Therefore I have decided to grant the Respondent’s application to dismiss and dismiss Mr Piefke’s unfair to remedy application pursuant to section 399A(1)(b) of the Act.

[63] With respect to the grounds the Respondent argues Mr Piefke’s application should be dismissed under section 587 of the Act in my view it is not appropriate in this instance to consider dismissing the substantive application under s 587(1)(b) of the Act because the Applicant’s failure to provide witness statements or submissions prevents the Commission reviewing the merits of the application, which is necessary when determining whether an application is frivolous or vexations.

[64] However with respect to dismissing the application on the ground that it is has no reasonable prospect of success I do find that the Mr Piefke’s repeated failure to provide a witness statement as evidence in support of his application means the application has no reasonable prospect of success.

[65] Therefore I have also decided to dismiss Mr Piefke’s unfair dismissal remedy application pursuant to section 587(1)(c) of the Act.

[66] Mr Piefke’s unfair dismissal remedy application is hereby dismissed and an order [PR723732] to that effect will now be issued.

Appearances:

J. Piefke on his own behalf.
K. Bennett on behalf of the Respondent.

Hearing details:

2020.
Perth:
October 5.

Printed by authority of the Commonwealth Government Printer

<PR723731>

 1   [2011] FWA 31.

 2   See [2011] FWA 4812 at [9] and [2010] FWAFB 9413 at [10] – [13].

 3   See [2011] FWA 4812 at [10] and [2011] FWA 1300 at [32].

 4   [2020] FWC 4209.