Keith Le Mon v Silverstone Recruitment

[2019] FWC 7413

[2019] FWC 7413

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Keith Le Mon
v
Silverstone Recruitment
(C2019/5509)

DEPUTY PRESIDENT CROSS SYDNEY, 15 NOVEMBER 2019

Application to deal with contraventions involving dismissal.

[1] On 4 September, 2019, Mr Keith Le Mon (the “Applicant”) made an application to deal with contraventions involving dismissal (the “Application”), pursuant to s.365 of the Fair Work Act 2009 (Cth) (the “Act”). The Applicant was employed by Silverstone Recruitment (the “Respondent”) from 1 April, 2019, to 13 August, 2019. The Application identified that it was filed one day late.

[2] On 16 September, 2019, the Respondent filed an Employer’s Response (Form F8A) opposing the Application. In its Form F8A, the Respondent also identified that the Application was filed one day outside the statutory timeframe.

[3] On 3 October, 2019, I convened a Directions Hearing to outline the manner in which the question of whether the Application was to be accepted out of time would be determined. It is noted that the Applicant did not participate in the Directions Hearing.

[4] On 4 October, 2019, Directions (“the Directions”) were issued from my Chambers to the parties in the following terms:

1. “The Applicant (Keith Phillip Le Mon) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions addressing his out of time application, together with any witness statements and other documentary material the Applicant intends to rely on in support of his application in this matter by no later than 4.00pm on 22 October 2019.

2. The Respondent (Silverstone Recruitment) is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, together with any witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by no later than 4.00pm on 12 November 2019.

3. The Applicant (Keith Phillip Le Mon) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions in reply, together with any witness statements and other documentary material in reply to the Respondent’s materials by no later than 4.00pm on 19 November 2019.

4. The Application will thereafter be determined on the materials filed by the parties, unless the Application is made and granted for the hearing of evidence.” (Original emphasis).

[5] No materials were received from the Applicant by 22 October, 2019, pursuant to Direction 1, nor was there any explanation for the delay.

[6] On 23 October, 2019, my Chambers received correspondence from the Respondent’s representative in the following terms:

“Good afternoon Associate,

I refer to your e-mail below and the directions that were attached in the above matter.

The Applicant was directed to file with the Commission and serve on the Respondent an outline of his submissions plus any witness statements or other documents on which he intended to rely on by 4:00pm, yesterday 22 October 2019.

Neither the Respondent nor I received any documents from the Applicant by the due date and time.

Did the Applicant file his materials with chambers?  If so, could you please forward them to the Respondent?

If the answer to the above question is no, then we request that the Applicant be directed to file his materials in a very short period of time.”

[7] On 23 October, 2019, I issued correspondence from my Chambers directing the Applicant to file his materials in support of his Application by 4.00pm on 24 October, 2019 (the following day). The Applicant was also invited to file a Notice of Discontinuance if he no longer wished to pursue his claim against the Respondent.

[8] Again, no such materials were filed by 24 October, 2019, as directed, nor did the Applicant provide any explanation for the non-compliance.

[9] On 28 October, 2019, my Chambers issued correspondence to the Applicant in the following terms:

“Dear Mr Le Mon,

I refer to the below correspondence.

Chambers can confirm that no material has been filed by you to date pursuant to the Directions of 4 October and 23 October 2019.

As such, if you still intend to do so, the Deputy President has directed that you file your materials by 4.00pm today (28 October 2019) with Chambers. A failure to do so will result in your application being dismissed without further recourse to you.”

[10] On the same date, at 12.18pm (AEDT), my Chambers received the following correspondence from the Applicant:

“I am able to proceed
After a call I received

Unknown caller male

Stating if I Proceed I will not work on a Rio Tinto site

Or in the Pilbara

Have emailed the other party

Regards Keith Le Mon

Sent from my iPhone.”

[11] At 02.01pm (AEDT) on the same date, further correspondence from my Chambers was issued to the Applicant in the following terms:

“Dear Mr Le Mon,

I refer to the below correspondence.

As you have now confirmed that you still wish to pursue your application, please ensure that you file your materials with Chambers by 4.00pm today.”

[12] At 03.31pm (AEDT) on the same date, my Chambers received the following correspondence from the Applicant:

“I cannot as I will not be able to work on a Rio Tinto site

Sent from my iPhone.”

[13] At 04.50pm (AEDT), on the same date, my Chambers then received the following correspondence from the Respondent:

“Dear Associate,

Last week, the Applicant e-mailed me alleging that I knew of or was responsible for the alleged phone call that he claims was made to him on the day that the directions hearing, threatening him if he continued with this proceeding. This is a very serious allegation and the Applicant has provided no evidence whatsoever that either my client or I were involved.

Both my client and I strenuously deny either making the alleged phone call or having any knowledge of who made the call, if in fact it did happen.

On the day of the directions hearing, you advised me that the Applicant had not returned your messages. I note that it is only after the Applicant’s materials were due to be filed that this story comes to light and we ask that the Deputy President have no regard to this story nor provide any further extensions to todays due date

I ask that you forward this e-mail to the Deputy President.”

[14] On 7 November, 2019, further correspondence was received by my Chambers from the Respondent. That correspondence was also sent to the Applicant, and was expressed in the following terms:

“Dear Associate,

I request that this e-mail be referred to the Deputy President.

I refer to the above matter. To date, despite the Deputy President’s direction, the Applicant has failed to serve the Respondent with any of his materials, nor, to the Respondent’s knowledge has he filed a Notice of Discontinuance.

Therefore, pursuant to s.587 of the Fair Work Act 2009, the Respondent makes an application seeking that Application C2019/5509 be dismissed. The basis of its application is as follows:

1. The above application was made on 4 September 2019. The Applicant indicated in the application that it had been filed one day late. On 8 September 2019, the Respondent advised the Commission and the Applicant that it did not consent to the application being dealt with by conciliation and that it sought the question of whether there were exceptional circumstances justifying an extension to the time by which the application could be filed.

2. On 10 September, Cross, DP requested that the Respondent complete, file and serve on the Applicant its response to the application. This was done on 16 September 2019 and the Respondent’s representative received an e-mail acknowledging receipt of the response form from the Applicant.

3. On 19 September a notice of listing was provided to the parties requiring attendance by telephone to a Directions Hearing on 3 October 2019 at 2:00pm, (AEST). The Respondent attended but the Applicant did not. The Respondent was advised by the Associate that he had left a message on the Applicant’s telephone. The hearing was adjourned for one hour, in case there had been a misunderstanding due to the time difference between Perth and Sydney, however the Applicant did not answer his phone. The Respondent was also informed by the Associate that the Applicant had not returned the Associate’s message left on his phone.

4. On 4 October 2019, Cross, DP issued directions requiring the Applicant file and serve an outline of submissions and any witness statements or documentation that he wished to rely upon by 4:00pm, 22 October 2019. The Applicant did not do so.

5. On 23 October, the Applicant was required to file the above material by 4:00pm, 24 October 2019. The Applicant did not do so.

6. On 28 October, the Applicant was required to file the above material by 4:00pm, 28 October 2019. The Applicant sent an e-mail confirming that he still wished to pursue his application but did not file or serve any material as directed to do so.

7. The Respondent submits that s.587 provides the Deputy President with the power to dismiss this application and he should do so (see Steffanie Connors v Barclays Café [2019] FWC 7403). Despite being given numerous opportunities and being warned of the consequences of not complying, the Applicant has failed to comply with the Deputy President’s directions to file his material. Other than filing the application and paying the subsequent filing fee, the Applicant has done nothing to prosecute his claim. In the meantime, the Respondent has wasted time and resources in defending this claim.

8. The Respondent further requests pursuant to s.586 of the Act that the irregularity in the form and manner in which this application has been made, be waived.”

[15] Since the above correspondence of 7 November, 2019, no further communication has been received from the Applicant.

[16] Section 587 of the Act provides:

“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.

(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.”

[17] The words, ‘Without limiting when FWC may dismiss an application,’ at the commencement of s.587(1) of the Act makes clear that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) or (c).

[18] The power to dismiss an application where there is an unreasonable or unexplained non-compliance with the Commission’s listings or directions is exercisable by the Commission. So much so is evident by the express language used in s.587(3)(a) of the Act. Further, as Deputy President Colman observed in Diane Porteous v G. Kakafikas and A.G. Bek Partnership T/A Yarra Glen Pharmacy[2019] FWC 6264, at paragraph [19]:

“[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.”

[19] As noted above, there has been no communication from the Applicant since his correspondence of 28 October, 2019, nor have any materials been filed in support of his Application as directed on 4 October, 2019, 24 October, 2019, and 28 October, 2019. Assuming that the Applicant did receive an anonymous telephone call, whether one telephone call or ten, the Applicant, being aware of what is required to prosecute his case, has made an apparently deliberate and conscious decision not to file any material in support of his Application.

[20] Given the circumstances described above, I am satisfied that I should exercise my discretion under s.587(3)(a) of the Act and dismiss the Applicant’s application to deal with contraventions involving dismissal. Accordingly, the Directions of 4 October, 2019, are formally discharged.

DEPUTY PRESIDENT

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