Kyle Murphy v Softwoods Timberyards Pty Ltd

[2019] FWC 7674

[2019] FWC 7674

FAIR WORK COMMISSION

DECISION

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

Kyle Murphy
v
Softwoods Timberyards Pty Ltd
(U2019/7853)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 8 NOVEMBER 2019

Application for an unfair dismissal remedy – application to dismiss on ground of non-compliance and failure to prosecute – section 399A FW Act – applicant non-compliant but not non-responsive - discretionary considerations – further direction issued - 399A application adjourned

[1] This decision concerns an application by Softwoods Timberyards Pty Ltd (Softwoods or the employer) to have the Fair Work Commission (Commission) strike-out an unfair dismissal application 1 made by a former employee Kyle Murphy (Mr Murphy) prior to its hearing on the ground of alleged failure to prosecute the claim.

[2] The application was made by the employer on 31 October 2019 (by email) and on 1 November 2019 (by Form F1), two weeks prior to a scheduled hearing on merits and remedy that had been listed for 13 and 14 November 2019. The employer’s application seeks an order under section 399A of the Fair Work Act 2009 (the FW Act) dismissing Mr Murphy’s application in its entirety.

[3] This decision does not concern the merits of Mr Murphy’s unfair dismissal claim.

[4] I issued Directions on the employer’s application on 1 November 2019. I scheduled the strike-out application for hearing on 6 November 2019. I directed the employer to formalise their email application by submitting a Form F1 by close of business 1 November 2019. The employer did so. I also directed Mr Murphy to provide by 5.00pm 4 November 2019 a written outline of his position and any document on which he intended to rely. Mr Murphy provided a written response by email sent at 6.24pm on 4 November 2019.

[5] I heard the employer’s strike-out application by telephone on 6 November 2019. Proceedings were audio recorded. I reserved my decision, which I now issue.

[6] Both parties attended the hearing of the strike-out application, Mr Murphy was self-represented. The employer represented itself, through its Operations Manager, Mr Zenon Trigg.

Facts

[7] The facts relevant to the strike-out application are generally not in dispute and able to be reliably summarised from the Commission file.

[8] Mr Murphy was dismissed by the employer on 9 July 2019.

[9] On 17 July 2019 Mr Murphy made his unfair dismissal application.

[10] At the time of making his application, Mr Murphy was represented by a paid agent, A Whole New Approach Pty Ltd.

[11] The employer filed a response on 26 July 2019.

[12] Telephone conciliation before a Commission-appointed conciliator was listed for 9.15am 16 August 2019. One hour prior to the conciliation (8.15am) Mr Murphy’s agent advised that due to a bereavement they sought an adjournment. The adjournment was granted. Telephone conciliation was relisted for 28 August 2019.

[13] Conciliation occurred by telephone on 28 August 2019. Both parties attended (Mr Murphy with his paid agent). The matter did not resolve. It was referred for hearing and determination. The conciliator advised both parties (by email): 2

“You must comply with all FWC Directions. If you do not comply the application may be dismissed and/or you may face an application for costs.”

[14] In this same email, the conciliator informed the parties of the meaning of an ‘outline of written submissions’ and a ‘witness statement’.

[15] Mr Murphy’s application was listed for a directions hearing at 11.00am on 16 September 2019. On the morning prior to the directions hearing (9.52am) Mr Murphy’s paid agent advised they ceased to act on his behalf (and filed a F54 Notice).

[16] The directions hearing proceeded on 16 September 2019 with both parties in attendance (Mr Murphy now self-represented). Directions were issued. 3 The application was listed for hearing on 13 and 14 November 2019. The Directions required Mr Murphy to file submissions and materials by 5.00pm 15 October 2019. The Directions also provided:

“Compliance with these directions is mandatory and a failure to comply is likely to disadvantage the party concerned.”

[17] The Directions also attached a Commission created document ‘Preparing Documents for Filing’ setting out information on how to comply with directions and how to prepare witness statements.

[18] The matter was also listed for a Member Assisted Conciliation (MAC) before Commissioner Hampton on 3 October 2019, before being relisted to 4 October 2019 due to Chambers commitments. On the morning of the scheduled MAC, Mr Murphy informed the Commission he was unwell and unable to attend.

[19] The MAC was relisted before Commissioner Platt on 14 October 2019 and then rescheduled to 25 October 2019 due to Softwoods unavailability.

[20] Mr Murphy did not attend the MAC scheduled for 10.00am 25 October 2019. Mr Murphy contacted the Chambers of Commissioner Platt later that day (3.08pm) advising that he was seeking alternate legal representation and had not realised the conciliation was to take place that morning. The Associate to Commissioner Platt confirmed that the matter was now proceeding to hearing and that Mr Murphy was required to comply with the Amended Directions issued by myself on 15 October 2019.

[21] In light of the relisting of the MAC (from 15 to 25 October), on 15 October 2019 I issued Amended Directions providing Mr Murphy an extension of time to file materials (by 5.00pm on 30 October 2019). The Amended Directions also provided:

“Compliance with these directions is mandatory and a failure to comply is likely to disadvantage the party concerned.”

[22] The Amended Directions again attached the Commission created document ‘Preparing Documents for Filing’.

[23] On 29 October 2019, by telephone, Mr Murphy contacted my Chambers to discuss his filing obligations. My Associate confirmed that the Amended Directions of 15 October 2019 stood, and that Mr Murphy was required to file by 30 October 2019.

[24] On 30 October 2019 Mr Murphy contacted the Commission by email requesting an extension of time to file his submissions and materials. Further Amended Directions were issued by myself on 30 October 2019 extending Mr Murphy’s time to file to 5.00pm on 31 October 2019 (and providing the employer a 24 hour extension to its deadline). The Further Amended Directions also provided:

“Compliance with these directions is mandatory and a failure to comply is likely to disadvantage the party concerned.”

[25] To date, no submissions have been filed by Mr Murphy in response to the Directions of 16 September 2019, the Amended Directions of 15 October 2019 or the Amended Directions of 30 October 2019.

[26] In light of Mr Murphy not having filed materials, and its section 399A application, the employer has not filed materials in response that were due on 6 November 2019.

[27] The unfair dismissal application is listed for a merits and remedy hearing on 13 and 14 November 2019.

Submissions

[28] In its section 399A application, Softwoods contend that the application should be dismissed on three grounds:

1. That Mr Murphy has failed to prosecute his claim;

2. That Mr Murphy has failed to actively participate in the process; and

3. That Mr Murphy’s application is frivolous and has no genuine prospect of success.

[29] Softwoods provided written particulars of these contentions in its Form F1 application.

[30] On 4 November 2019, Mr Murphy contacted my Chambers by telephone stating that he continues to seek legal representation and was unsure what to write in response. My Associate confirmed his obligations to file submissions and material by close of business that day.

[31] By email at 6.24pm on 4 November 2019 Mr Murphy provided the following written response:

“I am aware that I was meant to have some official type of paperwork in by today but as I am not a lawyer or studied law as Mr Trigg has I am unsure of exactly it is I am meant to be supplying.

What I do know is that I feel it is an unfair advantage that Softwoods are using Mr Trigg as their representative knowing full well he has studied law.

But that is how they operate, pretending just to coast along and make it look like they are doing the right thing and nothing underhanded.

Fortunately for me working for the company for nearly 7 years and seeing how they have treated me during my final months at Softwoods and more so since, and what I still claim as unfair, my dismissal via email without even given the opportunity to defend myself and whilst being on workcover and just a few months of of (sic) long service.

As for the application to have my case dismissed, this is nothing short of bullying tactics on there (sic) behalf and the reasoning behind it is trivial as, in my opinion, the reasons for terminating my employment. I am aware that is a bold statement Mr Commissioner but given the opportunity to defend myself and bring to light actions of other employees that were doing exactly the same or similar to myself but still have there (sic) job I’m sure you would understand.

I have spent since 8 o’clock this morning trying to get some advice/representation but it has been extremely difficult to so as they are so booked out. This was another reason I asked for an extension but was given just 24 hours which I find ridiculous.

I am hoping to have some representation by lunch time tomorrow but this is all I can offer you at this point in time.

I hope you understand my position and allow my case to go forward.”

[32] Mr Trigg and Mr Murphy spoke to their submissions at the hearing.

[33] In summary, Mr Murphy advanced three reasons for his alleged non-compliance:

1. He had, in his view, a “bad representative” who he had a mutual parting of the ways with on 16 September 2019, prior to the Directions hearing 4 and continues to seek alternate legal representation;

2. He has been waiting to get representation before submitting any further material because he “doesn’t know what he’s doing” 5, and that he “doesn’t know what to write”6; and

3. He has “a lot of other things going on in his life” 7 and has received “multiple emails from multiple organisations over the last few months, at which point he breaks down and shuts down for a few days or sometimes for up to a week”.8

Consideration

[34] Section 399A of the FW Act 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.”

[35] Mr Murphy has been given prior notice of the employer’s application under section 399A, of my directions that he provide a response (which he has), and of the prospect that his application may be dismissed in the absence of an acceptable explanation.

[36] I deal firstly with the second and third grounds advanced by the employer.

Failure to actively participate in the process

[37] The employer relies on Mr Murphy’s non-participation in the MACs scheduled by both Commissioner Hampton and Commissioner Platt. Each MAC did not take place due to Mr Murphy’s circumstances: the first due to his alleged un-wellness (advised that morning, with no proof of illness), and the second due to an asserted error in recording the correct hearing time and seeking out a lawyer.

[38] Mr Murphy has not been an entirely non-responsive applicant. He participated in the telephone conciliation on 28 August 2019 (with his agent) and the directions hearing on 16 September 2019 (by himself). Although not always in a timely manner, he has from time to time contacted chambers of relevant Commission members by telephone or email to express a view, ask questions or seek information.

[39] Mr Murphy’s failure to participate in a MAC on both occasions inconvenienced the Commission, as well as his former employer. He failed to attend the two MAC conferences, causing both to be aborted. Having expressed a willingness to participate in a MAC, Mr Murphy’s conduct was discourteous. It was not however a breach of a direction, as he was not directed to attend what is a voluntary process.

[40] Having failed to attend two conciliation conferences (the MACs) without providing evidence of a reasonable excuse, I am satisfied that Mr Murphy failed to attend a “conference” within the meaning of section 399A of the FW Act. However, given the non-compulsory nature of a MAC, that failure is at the lower end of the scale.

[41] In an overall sense, I do not conclude that Mr Murphy has been a non-responsive applicant.

No reasonable prospects of success

[42] The employer asserts that its decision to dismiss Mr Murphy was merited, and that his application has not altered its view.

[43] I have not conducted any hearing into the merits of Mr Murphy’s application (F2) or the employer’s response (F3), other than noting that each are relatively detailed.

[44] There is no basis on which it is open to find, at this juncture, that the unfair dismissal application has no reasonable prospects of success.

[45] This ground of the employer’s section 399A application is not made out.

Failure to comply with directions

[46] I now deal with the first ground advanced by the employer: that Mr Murphy has failed to prosecute his claim by virtue of alleged non-compliance with Commission directions.

[47] This ground is made out.

[48] The facts clearly establish that Mr Murphy has failed to comply with Commission directions to file materials despite two extensions of time having been granted: from 15 October 2019 to 30 October 2019, and from 30 October 2019 to 31 October 2019.

[49] Having regard to Commission records, I am satisfied that Mr Murphy was given notice of his obligation to comply with directions issued on 16 September 2019, 15 October 2019 and 30 October 2019 and that sufficient time was provided to comply with those directions.

[50] Mr Murphy has failed to do so despite multipe sets of directions from Commission members, and the conciliator and then Commission staff reminding Mr Murphy on multiple occasions of his obligations to file materials in accordance with directions, and that failure to do so may disadvantage him.

[51] His non-compliance has occurred over a number of weeks.

[52] A consequence of Mr Murphy’s failure is that the hearing of his application is scheduled five days away (13 November), and yet still neither the Commission nor the employer has been provided with a witness statement by Mr Murphy, nor statements from other witnesses (if any) he intends to call, nor documents (if any) on which he intends to rely.

Explanations for non-compliance

[53] Section 399A is predicated on the proposition that an applicant’s failure(s) need to have been “unreasonable” for a section 394 application to be dismissed.

[54] Are Mr Murphy’s explanations reasonable?

Absence of representation

[55] This is not a reasonable explanation for non-compliance.

[56] I take into account that Mr Murphy parted company with his paid agent by mutual agreement on 16 September 2019. I accept Mr Murphy’s submission that he has contacted multiple organisations in an attempt secure a representative, but has not been able to do so. 9 He has on more than one occasion told Commission staff of that intent, and repeated that to me at the section 399A hearing on 6 November 2019.

[57] I also take into account that, by the time Mr Murphy was required to file materials, he had parted way with his paid agent.

[58] However, whilst this explains why Mr Murphy has not lodged materials, it is not, objectively, a reasonable explanation.

[59] Firstly, this is not a matter where Mr Murphy has been entirely void of representation. Prior to filing his application, and for the first month his application was before the Commission, Mr Murphy had engaged a paid agent as his representative. Whatever his view about their suitability, Mr Murphy had access to their advice including advice on his obligations as a litigant and what would be required of him should his application be referred for hearing and determination. Whether or not he sought that advice is not to the point, he had access to it.

[60] Secondly, the unfair dismissal jurisdiction is framed on the proposition that parties represent themselves, and (subject to some exceptions) are only represented by a lawyer or paid agent with permission of the Commission. 10 Given that, a party’s failure to secure representation can hardly be a reasonable ground for not complying with Commission directions on case management.

Does not know what he is doing

[61] Mr Murphy is a self-represented applicant. He has no legal or industrial background or training. I accept that the Commission processes are unfamiliar, and appear legalistic and daunting.

[62] However, amongst self-represented applicants none of this is unique.

[63] The Commission provides, through its web site, information in written and audio visual form about proceedings. This is directed to and accessible by self-represented applicants and respondents, at no charge.

[64] The directions issued by the Commission on 16 September 2019 and 15 October 2019 and also the information provided by the conciliator on 30 August 2019 provided specific guidance to Mr Murphy (and the employer) on the preparation of submissions and witness statements.

[65] I am in no doubt that Mr Murphy has not been, and is not confident in preparing his materials or in knowing where to start. However, he has lodged nothing, not even incomplete material. He has self-determined that until he knows more about what he has to do, he cannot comply with the directions.

[66] What is required of Mr Murphy is foreign to him but not overly complex, if an effort is made. His application (F2) contains detailed grounds and some documents. His own application, filed by his then representative, provides the framework for preparation of a witness statement and compliance with the other directions.

[67] It is simply not a reasonable explanation for non-compliance for an applicant employee, even a self-represented person with no specialist knowledge, to await the future or hypothetical engagement of an adviser before they will comply with directions.

Busy and shuts down

[68] If Mr Murphy is busy in the sense of “having may other things going on in his life” as he advised the hearing, he is not unique in that situation. It is not unusual for applicants in the unfair dismissal jurisdiction to be juggling the consequences of having been sacked, the challenge of finding another job and fitting all of that around family, personal and financial obligations.

[69] Moreover, busy-ness is not confined to persons in Mr Murphy’s position. Respondent employers claim to be busy in their affairs. Neither is their busy-ness unique or an excuse for non-compliance.

[70] The Commission is unquestionably a busy institution administering an important area of law and public policy. Delaying matters due to non-compliance presents potential prejudice to the administration of justice including other litigants in the queue waiting for their applications to be listed, or heard or adjudicated upon.

[71] Mr Murphy’s busy-ness is not an acceptable explanation for non-compliance with directions on his own application.

[72] In some circumstances, a person’s health (whether physical or mental wellbeing) or the health of those entrusted into their care may be a reasonable basis for non-compliance. Whether Mr Murphy “shuts down” on account of a health condition is not something that I can assess, as there is no evidence before me on that matter.

[73] None of the reasons advanced by Mr Murphy for non-compliance are, in an objective sense, reasonable.

Conclusion

[74] I have concluded that Mr Murphy has acted unreasonably in not complying with Commission directions. Section 399A(1)(b) is made out.

[75] I have also concluded that Mr Murphy has acted unreasonably in twice not attending a MAC conference before a member of the Commission resulting in section 399A(1)(a) being made out, but that this failure is at the lower end of the scale given the non-compulsory nature of the MAC process.

[76] However, it does not automatically follow that because unreasonable conduct within the meaning of section 399A has been found that an application must be dismissed. Dismissing an application remains a serious matter in the exercise of a discretion; the section provides that the Commission “may” do so.

[77] What is required is the exercise of justice in the circumstances, consistent with the statutory object pertaining to unfair dismissal applications of a “fair go all round”. 11

[78] I now consider whether it is appropriate to exercise the discretion vested in me by section 399A.

[79] It is a well-established principle that an applicant has an obligation to comply with directions of the Commission and to actively and attentively prosecute their application. There are certain minimum disciplines associated with invoking a statutory jurisdiction and litigating a claim against a private individual or business in a quasi-judicial tribunal such as the Commission. Invoking the Commission’s jurisdiction is neither cost nor consequence free; doing so utilises the services of publicly funded members and staff who collectively have statutory obligations to conduct the institution’s business fairly, efficiently and in a timely manner having regard to the interests of all applicants and respondents. One such discipline is to comply with directions in advance of hearings.

[80] In Peter Viavattene v Health Care Australia the Full Bench stated at [39]:

“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).” 12

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

[82] 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.” 13

[83] On balance, and notwithstanding the consequences of Mr Murphy’s non-compliance, I do not consider it just, at the present time, to dismiss his unfair dismissal application.

[84] I am particularly persuaded by two factors:

•  Mr Murphy is not (to date) an entirely non-responsive applicant; and

•  Mr Murphy has a desire to comply (albeit no reasonable excuse for not having done so).

[85] I will provide Mr Murphy one final opportunity to comply, but on three conditions:

•  I will not hear his unfair dismissal application unless and until Mr Murphy files materials in accordance with the further direction I issue accompanying this decision; and

•  If Mr Murphy does not file materials in accordance with my further direction then, in the absence of an exceptional circumstance, his application will be dismissed under section 399A of the FW Act (unless otherwise discontinued); and

•  I will not dispose of the employer’s strike-out application. The section 399A application will remain live until such time as Mr Murphy achieves full compliance with my directions, up until the hearing of this matter (if any). I will grant leave for the section 399A application to be relisted on short but reasonable notice.

[86] Mr Murphy will be given 7 days to comply with this further direction. This is a period of time sufficient to enable him to prepare materials with or without representation or specialist assistance, and sufficient time to secure information (including on-line), advice or representation should he wish or need to do so.

[87] Regrettably, a consequence of Mr Murphy’s non-compliance, and this decision, is that it is not in the interests of justice to hear his application next week in circumstances where the employer has not seen the full content of the case it has to meet, nor been given an opportunity to file its materials in response. Prejudice to the employer weighs in my consideration.

[88] As the employer has not contributed to this circumstance, I will set aside the employer’s obligations under the existing directions and not, at this stage, impose new obligations on the employer until I am satisfied that Mr Murphy is meeting his minimum obligations as a litigant to file materials in support of his claim.

[89] My further directions will be:

1. The hearing dates of 13 and 14 November 2019 are vacated;

2. Previous directions issued in this matter are set aside and substituted by this further direction;

3. Mr Murphy is directed to file materials in support of his application by 5.00pm (ACDT) 15 November 2019;

4. If Mr Murphy seeks to be represented in this matter in a manner that requires permission of the Commission, he is directed to make a request for permission in writing (including the grounds for the request) by 5.00pm (ACDT) 15 November 2019;

5. No substitute date is yet set for the employer to file its materials or to notify of any requests for or objections to permission;

6. The matter (including the employer’s section 399A application) will be relisted by telephone at 9.00am (ACDT) 19 November 2019 at which time I will hear submissions on whether Mr Murphy has complied with these further directions and consider whether his application should be dismissed or, in the alternative, whether it should be listed with fresh hearing dates and further directions.

7. I grant leave to Softwoods for its section 399A application to be relisted on short but reasonable notice.

DEPUTY PRESIDENT

Appearances:

K. Murphy, on his own behalf

Z. Trigg, for the Respondent

Hearing details:

2019.

Adelaide; by telephone.

6 October.

Printed by authority of the Commonwealth Government Printer

<PR714094>

 1   U2019/7853

 2   Email 30 August 2019 10.39am

 3   In my absence, by Commissioner Hampton

 4   Audio recording of 6 November 2019 at 21:50

 5   Audio recording of 6 November 2019 at 18:20

 6   Audio recording of 6 November 2019 at 20:38 and 29:12

 7   Audio recording of 6 November 2019 at 24:26

 8   Audio recording of 6 November 2019 at 30:28

 9   Audio recording of 6 November 2019 at 17:30

 10 Section 596 FW Act

 11 Section 381(2) FW ACT

 12   [2013] FWCFB 2532; see also Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [19] and Patel v The Tea Centre Pty Ltd[2018] FWC 7814

 13   [2019] FWC 6264