Kevin Lawless v Beach Energy Ltd

[2021] FWC 4574

[2021] FWC 4574

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Kevin Lawless
v
Beach Energy Ltd.
(C2021/1765)

DEPUTY PRESIDENT BEAUMONT PERTH, 30 JULY 2021

Application to deal with contraventions involving dismissal – s 587.

1 Introduction

[1] Mr Kevin Lawless has made a general protections application involving dismissal under s 365 of the Fair Work Act 2009 (the Act). The Respondent to this application is Beach Energy Limited (the Respondent). The matter was allocated to Chambers on 9 June 2021.

[2] The Respondent objected to Mr Lawless’ application on several grounds. The first, the Respondent was not and had never been the employer of the Applicant. The second, the Applicant had not indicated on his Form F8 which sections of the Act had been allegedly contravened. The third, the Applicant may have made two other applications in the Commission regarding his dismissal against Tailored Resources and Valmec Limited – respectively.

[3] Section 365 of the Act outlines when the Commission can deal with a general protections application involving dismissal. It requires that the person has been dismissed and that the dismissal was in contravention of the general protections part of the Act (Part 3-1).

[4] On receiving the application, the Commission is obliged to deal with this type of dispute other than by arbitration. 1 It may do this by mediation, conciliation or by making a recommendation or expressing an opinion.2 However, if there is a dispute about whether the applicant has been dismissed, the Commission must first determine that point before it can deal with the application further.3

[5] For the reasons that follow, I have decided to dismiss the application under s 587 of the Act. The matter was decided on the papers given neither party objected to such approach. Briefly stated, the Applicant has not complied with the directions of this Commission and I am not satisfied that the application has been made in accordance with the Act.

2 Background

2.1 Compliance with directions

[6] As there was a dispute over whether Mr Lawless had been dismissed, on 11 June 2021, a notice of listing was issued for a telephone conference to be held on 28 June 2021. The purpose of the conference - to better understand the application and thereafter program the matter.

[7] The Applicant did not present for the telephone conference. He had not requested an adjournment or otherwise notified the Commission that he would be absent. Therefore, directions were issued on 28 June 2021, requiring the Applicant to explain his absence and lack of notification.

[8] On 29 June 2021 at 5.29pm (AWST), the Applicant emailed the Commission (but not the Respondent) advising that he intended to commit suicide because of the ‘decision’ (presumedly of the Commission). On becoming aware of the email, I notified the Western Australian Police Force at approximately 7.30pm and understand that a welfare check of the Applicant was conducted that same evening.

[9] Having been appraised of the Applicant’s purported injury at a mine site and hence his absence at the conference on 28 June 2021, a directions hearing was scheduled for 7 July 2021 at 10.00am (AWST), with the Applicant’s cooperation.

[10] The directions hearing took place on 7 July 2021, and the Respondent’s jurisdictional objections were traversed, as was the necessity to conduct a hearing on the disputed issue of dismissal.

[11] On 8 July 2021, the Commission issued new directions regarding the jurisdictional hearing on the issue of dismissal. Those directions required the Applicant to file submissions, witness statements, a document list and any other material elide upon by no later than 4.00pm (AWST) on 15 July 2021.

[12] On 15 July 2021 at 1.29pm (AWST), the Applicant emailed Chambers (but not the Respondent), requesting an indefinite adjournment of his application. No medical certificate accompanied the request. However, the Applicant outlined that he had suffered an injury to his left arm and hand which were now paralysed, and he was under medical care and heavy sedation.

[13] On 15 July 2021 at 3.10pm (AWST), Chambers issued to the parties the following email:

Dear Mr Lawless

C2021/1765 - Lawless, Kevin v Beach Energy Ltd

Thank you for your email of Thursday, 15 July 2021 time stamped 1:29 PM.

Your request for an adjournment has been considered by the Deputy President.  While the Deputy President has sympathy for your circumstances your request is declined for the following reasons:

a) a directions hearing was held on Wednesday, 7 July 2021 where it was explained that there were multiple objections to your application;

b) at the directions hearing the Deputy President indicated to the parties that the matter would proceed to hearing and directions would be issued regarding the filing of materials;

c) at the directions hearing you did not request that the process be delayed;

d) you were obliged to file your materials by no later than 16:00hrs (AWST), Thursday, 15 July 2021;

e) notwithstanding your injury having occurred on 26 June 2021 it was not until 1.29PM today that you informed this Commission that you were unable to comply with the directions, the same day as your materials are due to be filed;

f) no evidence has been provided in the form of a medical certificate or statutory declaration supporting your request;

g) your request is for an indefinite adjournment or an adjournment until such time as you are fit – a date which has not been indicated.

In light of the above, the Applicant is directed to file his materials as directed by no later than 16:00hrs (AWST), Thursday, 15 July 2021.

If the Applicant is non-compliant with the abovementioned directions then the Deputy President will consider exercising the Commission’s power to dismiss an application under section 587 of the Fair Work Act 2009 (Cth).

Should this prove necessary directions will follow to allow the parties to address the dismissal of the application under s 587. It is important to note that a decision to dismiss the application has not been made at this point.

Chambers draws to the attention of the parties ss 375B and 611 of the Fair Work Act 2009 (Cth), which both pertain to costs.

Should either Party have any questions concerning the content of this email, please contact Chambers.

[14] Chambers did not receive the Applicant’s materials by 4.00pm on 15 July 2021 or thereafter. It followed that further directions were issued on 20 July 2021 to both the Applicant and the Respondent directing the filing of materials in relation to the dismissal of the Applicant’s application under s 587 of the Act.

2.2 The Applicant’s dealings with the Commission

[15] In its submission regarding the dismissal of the Applicant’s application, the Respondent drew to the Commission’s attention the decision of Commissioner Platt in Kevin Lawless v Valmec Australia Pty Ltd (Lawless). 4 It submitted that the applicant in that matter was the Applicant in the application currently on foot.

[16] In Lawless, the applicant had brought an application under s 365 of the Act; the applicant gave the following evidence:

I was employed By Valmac, I was interviewed by Valmac staff at Valmac Head office in Perth I was instructed to act on behalf of Valmac I was given a Car, Paid for by Valmac and told to drive to Dongara with other employees of Valmac to stay at a Motel in Dongara with Valmac staff I got up at 4.30 and left to work at 5.00 am and drove to the site Valmac were working on (no other contractor was working on)to start work at 6.00 am With all the other workers from Valmac There was No other workers from Tailored all the workers were from Valmac There was no Management there was no supervision from Tailored were not there, I worked directly under the instruction of Valmack,s Construction manager and nobody else, No body from tailored ever visited the site I followed instructions from Valmac Staff at all times I believe tailored act as am employee of Valmac and act as agents for Valmac This does not remove Valmac from their Duty of Care My work exposed major Negligence, Failures, Bad Management and Carelessness by Valmac To prevent accidents Injuries and Deaths to workers That was why I was sacked By Valmac. 5

[17] At paragraph [14] of the Lawless decision the Commissioner stated, ‘Mr Lawless accepted that he identified Tailored Resources as the company he worked for on the Beach Energy form and that he was paid by Tailored Resources’. The Commissioner continued, finding:

[19] On the evidence before me I am not persuaded that Mr Lawless was employed by Valmec.

[20] It appears to me that Mr Lawless was engaged to provide services to Valmec via Tailored Resources, who is the employer.

[21] Mr Lawless complains that Valmec hides behind Tailored Resources, however it was open to Mr Lawless to amend his application to name Tailored Resources but he determined not to do so.

[22] The nomination of Tailored Resources as the company Mr Lawless worked for on the Beach Energy document is a strong indicator that it is the employer.

[23] The fact that Mr Lawless agrees that he was paid by Tailored Resources is also a strong indicator that it is the employer and I note that this is consistent with the commercial contract between Valmec and Tailored Resources.

[24] The communication between Mr Lawless and Tailored Resources on 9 March 2021 is also indicative of an employment relationship.

[25] I have not taken into account the contract of employment or the pre-employment medical forms which Mr Lawless disputes he signed.

[26] There is no direct evidence of any employment relationship between Mr Lawless and Valmec.

[27] I am not persuaded that the fact that Mr Lawless may have been subject to direction by Valmec or was the only Tailored Resources employee on site means that Valmec must be the employer.

[28] I find that Mr Lawless was not employed by Valmec and thus cannot have been dismissed from employment with Valmec.

3 Consideration

[18] Section 587 of the Act 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.

[19] In the decision of Mcleod v Kulgera Trading Company Pty Ltd, 6 the Vice President dismissed an application to deal with contraventions involving dismissal under s 365 of the Act, pursuant to the dismissal provision in s 587 of the Act. In doing so, the decision of Commissioner Gooley (as she was then) in Rebecca Tomas v Symbion Health7 (Tomas) was relied upon and reference was made to the following passages regarding the operation of s 587:

[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and (c) do not limit Fair Work Australia’s power to dismiss matters for other reasons.

[58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter.” 8

[20] While apparent that the decision of Tomas addressed an unfair dismissal application, the Vice President considered the reasoning applicable to an application under s 365 notwithstanding the limitation set out s 587(2) of the Act. The decision of Tomas has been subsequently followed, and other decisions of this Commission have relied upon s 587 to dismiss applications brought under s 365. 9

[21] In line with other decisions of this Commission, it is apparent that the words at the commencement of s 587(1), namely, ‘[W]ithout limiting when FWC may dismiss an application,’ make clear that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in ss 587(1)(a), (b) or (c).

[22] I have decided to dismiss the Applicant’s application for two reasons.

[23] First, the Applicant has demonstrated non-compliance with the directions of this Commission having not filed his materials by 15 July 2021. The circumstances of that non-compliance are summarised in the email referred to at paragraph [13] of this decision. In response to the Commission alerting the Applicant that it was going to consider dismissing his application under s 587 of the Act, the Applicant filed a letter dated 6 July 2021 sent by a Mr Aarron Tay to a Mr Alex O’Beirne (Western Orthopaedic Clinic), an EMG Report dated 19 July 2021, and a report from Perth Radiological Clinic.

[24] While the Applicant has now sought to present evidence of his incapacity, it is observed that he did not alert this Commission about his incapacity until applying for an indefinite adjournment on the day his materials were due to be filed on 15 July 2021. Further, at that time, notwithstanding that it is apparent that the Applicant was aware of his incapacity and had received treatment for the same, the Applicant had not provided the Commission with any direct evidence to substantiate his assertions of incapacity. This is notwithstanding that the Applicant had participated in a directions hearing on 7 July 2021, where it was made clear what would be required of the parties.

[25] 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. This is evident by the language used in s 587(3)(a) of the Act. It is accepted that there is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at her or his initiative. 10

[26] Should the application not be dismissed, the Respondent, who claims not to be the Applicants employer, a view that appears to be supported by the decision in Lawless, would be placed in the unenviable position of contending with:

a) an applicant who has shown disregard for the directions of the Commission;

b) an application which contains no detail as to the section of Part 3-1 that has been contravened; and

c) an Applicant who seems at best confused as to whom he was employed by notwithstanding the decision in Lawless.

[27] The Applicant’s conduct has already required the Respondent to expend resources in responding to a deficient application that the Applicant does not seem to have any intention of following through or alternatively wishes to delay unreasonably. I state unreasonably because there is simply no evidence before me to indicate the period of proposed delay – with the exception of ‘indefinite’ or ‘until fit’.

[28] While there is much sympathy for the Applicant’s position, he bears the responsibility of prosecuting his case and complying with the directions of this Commission. Notifying the Commission in a timely manner of adjournment requests and providing in support of those requests evidence, is not onerous or unfair. It minimises both the disruption to the programming of matters and prejudice towards another party, who is expending time and resources responding to documentation filed, preparing for conference or hearing and attending the same.

[29] Second, I am not satisfied that the application has been made in accordance with the Act. Section 365 of the Act allows a person to apply to the Commission to deal with a dismissal dispute if; (a) the person has been dismissed; and (b) the person alleges that they were dismissed in contravention of Part 3-1.

[30] The Form F8 filed in these proceedings failed to provide any information at question 3.2 of that Form, which asks the Applicant to state which section(s) of the Act the employer has allegedly contravened – in other words, which section of Part 3-1 of the Act has been contravened. The Applicant was informed at the directions hearing that his application was deficient in this respect and he had not indicated the general protection provision(s) that had been allegedly contravened. The Applicant has not sought to amend his application and at the time of writing the alleged contravention(s) has not been identified as required. A failure to identify on a Form F8 the sections of Part 3-1 which have allegedly been contravened has led this Commission in the past to dismiss and application under s 587(1)(a). 11

[31] The Commission is obliged to perform its functions and exercise its powers in a manner that is fair and just, quick, informal and avoids unnecessary technicalities. One is also always guided by the principle that the power to dismiss a substantive application should only be exercised cautiously and sparingly. 12 A cautious approach is said to be warranted because ordering the dismissal of an application would result ‘in the complete extinguishment of an applicant’s right to have his/her application for relief orders under beneficial legislation, heard and determined according to law’.13

[32] However, in all of the circumstances, I am satisfied that the Applicant was aware of what was required of him regarding compliance with the directions and he was informed of the deficiency with his application noting that he had not identified an alleged contravention in Part 3-1 of the Form F8. In my view, the Applicant has undertaken a deliberate decision not to comply with the Commission’s direction, an action which was necessary for him to prosecute his case – and has left his application absent any indication of the section allegedly contravened by the Respondent.

4 Conclusion

[33] In making the decision to dismiss the application, I have given considered thought to the Applicant’s position and that of the Respondent, to ensure the decision is both fair and just. 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. 14 To the extent that it is necessary to do so, I consider that it was also open to dismiss the application under s 587(1)(a) of the Act.

[34] The application is therefore dismissed. An Order 15 is issued to this effect.

DEPUTY PRESIDENT

On the Papers

Printed by authority of the Commonwealth Government Printer

<PR732248>

 1   Fair Work Act 2009 (Cth) s 368.

 2   Ibid.

 3   Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 [67].

 4   [2021] FWC 2908.

 5   [2021] FWC 2908 [13].

 6   [2014] FWC 2112.

 7   [2011] FWA 5458.

 8   Ibid [57]-[58].

 9   Kieran Hawes v Plastic Planet Pty Ltd[2014] FWC 6457; Amy-Lee Guest v Waddell Family Investments Pty Ltd trading as Pacific Gardens Van Village [2014] FWC 4607.

 10   Peter Viavattene v Health Care Australia[2013] FWCFB 2532 [39].

 11   Cherie Di Labio v Bags v Baggage[2014] FWC 7021.

 12   Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925.

 13 Ibid [31].

 14   SeeKeith Le Mon v Silverstone Recruitment[2019] FWC 7413.

 15   PR732345.