Julio Mira v Blasting and Painting Services Pty Ltd

[2020] FWC 4019

[2020] FWC 4019

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Julio Mira
v
Blasting and Painting Services Pty Ltd
(U2020/7212)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 31 JULY 2020

Application for an unfair dismissal remedy – non-responsive applicant – failure to attend hearings – failure to comply with directions – section 399A Fair Work Act 2009 – application dismissed

[1] On 31 July 2020, during a hearing of this matter conducted by telephone, I delivered an ex tempore decision dismissing Julio Mira’s application for an unfair dismissal remedy. I did so on the employer’s application pursuant to section 399A of the Fair Work Act 2009 (FW Act). These are my reasons for that decision.

Background

[2] Julio Mira (Mr Mira) lodged an application for unfair dismissal remedy with the Commission on 25 May 2020.

[3] Blasting and Painting Services Pty Ltd (the Respondent) provided a Form F3, Employer Response to Mr Mira and the Commission on 18 June 2020, wherein they raised the jurisdictional objection that the dismissal was a genuine redundancy.

[4] The parties were notified on 3 June 2020 that the matter was listed for a conciliation conference to be held on 23 June 2020. The staff conciliator was unable to contact Mr Mira; the Respondent and Mr Mira’s then representative attended the conference at the listed time. Mr Mira, through his representative, advised the Commission that he had mixed up the dates in his calendar and was not around his phone at the time of the conference.

[5] The parties were notified by the Commission on 29 June 2020 that the matter would be relisted for conciliation on 10 July 2020. The staff conciliator was again unable to contact Mr Mira; the Respondent and Mr Mira’s representative attended the conference at the listed time. Mr Mira did not offer any explanation for his non-attendance, nor has he contacted the Commission otherwise. Mr Mira’s representative filed a notice of ceasing to act on the afternoon of 10 July 2020.

[6] The matter was allocated to me for determination on 16 July 2020. On 20 July 2020 the parties were notified that I would conduct a directions hearing on 28 July 2020. The Respondent’s officers dialled into the directions hearing as per the notice of listing. Mr Mira did not. My Associate attempted to contact Mr Mira on his listed mobile phone number, but the call was not answered. Voice-mail messages were left for Mr Mira advising him to attend the directions hearing, and noting that his matter may be heard in his absence.

[7] At the directions hearing on 28 July 2020 the Respondent foreshadowed their intention to make a section 399A application for the Commission to dismiss Mr Mira’s application for non-responsiveness. Subsequently, I issued directions which required the Respondent to formalise their section 399A application by lodging the appropriate form. The Commission directed Mr Mira to provide reasons for not attending the directions hearing, was directed to lodge submissions explaining why his application should not be dismissed on procedural grounds and was directed to attend a further listed hearing on Friday 31 July 2020.

[8] The Respondent lodged a section 399A application before close of business on 28 July 2020. It sought dismissal of Mr Mira’s application.

[9] A further directions hearing was conducted on 31 July 2020, as listed. The Respondent attended. There was no attendance by Mr Mira. Mr Mira made no contact with the Commission prior to or at the hearing in response to either the directions or Notice of Listing of 28 July 2020. He did not provide reasons for non-attendance on 28 July 2020, did not make a submission as directed on the employer’s 399A application and did not attend the hearing on 31 July 2020 as directed. No explanations for non-compliance and on-responsiveness were provided.

[10] Upon considering the matter, I determined that the requirements of section 399A had been made out and that it was appropriate to dismiss Mr Mira’s unfair dismissal application for failure to comply with directions and failure to actively prosecute his claim. I made an order in those terms with immediate effect.

Relevant statutory provisions

Section 399A provides:

“399A Dismissing applications

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:

failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

failed to comply with a direction or order of the FWC relating to the application; or

failed to discontinue the application after a settlement agreement has been concluded.

…

The FWC may exercise its power under subsection (1) on application by the employer.

This section does not limit when the FWC may dismiss an application.”

Consideration

[11] Mr Mira has twice failed to attend hearings of the Commission. He has failed to comply with directions to provide an explanation for non-attendance. Sub-sections 399A(1)(a) and (b) are satisfied. The Respondent has made an application to dismiss Mr Mira’s application, satisfying section 399A(2).

[12] It is well-established that an applicant has an obligation to comply with directions of the Commission and actively and attentively prosecute their claim. There are minimum disciplines associated with invoking a statutory jurisdiction and litigating a claim in a quasi-judicial tribunal. Invoking the Commission’s jurisdiction is neither cost nor consequence free; doing so puts a responding party (in this instance, the employer) to time, cost and expense in defending its position. It also utilises the services of a publicly funded tribunal whose members and staff have statutory obligations to conduct the institution’s business fairly and efficiently having regard to the collective interests of applicants and respondents. One such discipline is to comply with directions in advance of hearings or, at the very minimum, provide explanations or seek timely extensions should compliance not be possible.

[13] In Peter Viavattene v Health Care Australia, the Full Bench stated:

“There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).” 1

[14] It is a significant matter to dismiss an application that is otherwise within jurisdiction without a merits hearing. 2 However, parliament has underscored the importance of actively and attentively prosecuting one’s claim by empowering the Commission to dismiss applications of its own motion (section 587) or to do so for specific non-compliance reasons on application by a respondent employer (section 399A).

[15] I concur with the observations of Deputy President Colman in Diane Porteous v G. Kakafikas and A.G. Bek Partnership T/A Yarra Glen Pharmacy:

“[19] It is completely unacceptable that a person can institute a legal proceeding, fail to prosecute it, and waste the other party’s time and that of the Commission, all with impunity and at no cost to themselves other than a filing fee of $73.20. Although there is the possibility under the Act to bring an application for costs, there is a high bar for success and such applications are, understandably, rarely brought. Further, in many cases, particularly those involving small businesses, there are no costs such as legal fees that might be recouped through cost orders. What has been expended is valuable time that could have been put to productive use. In my view there should be more robust consequences under the Act for litigants who fail to make reasonable efforts to prosecute applications.” 3

[16] Mr Mira has, for reasons unknown to the Commission, been non-responsive. He has been on notice that his application is at risk of being dismissed on procedural grounds. My directions of 28 July 2020 provided:

“[5] Compliance with these directions is mandatory and a failure to comply is likely to disadvantage the party concerned. Julio Mira is put on notice that the Commission may regard non-attendance at hearings/conferences, and non-compliance with Directions as enlivening the power to dismiss applications at the Commission’s own initiative and without further notice under section 587 of the FW Act, and/or parallel powers under section 399A (upon the application of the Respondent). “

[17] I am satisfied, in light of Mr Mira’s non-responsiveness and non-compliance with directions coupled with prejudice arising to the employer in defending an unfair dismissal claim that is not being actively prosecuted to a minimum required level, that it is appropriate to dismiss the application.

[18] Accordingly, Mr Mira’s application is dismissed pursuant to section 399A of the FW Act. An Order 4 to this effect is issued in conjunction with the publication of this Decision.

DEPUTY PRESIDENT

Appearances:

P Crowe and D Roach, for the Respondent.
No appearance by the Applicant.

Hearing details:

2020.
Adelaide (by telephone)
July, 31.

Printed by authority of the Commonwealth Government Printer

<PR721444>

 1   [2013] FWCFB 2532, [39]; see also Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [19] and Patel v The Tea Centre Pty Ltd[2018] FWC 7814

 2   Raschilla v Ausino West Pty Ltd ATF The Supercrane Unit Trust T/A Supercrane Engineered Lifting Technology[2017] FWCFB 5952

 3   [2019] FWC 6264

 4   PR721445