Kyne Puhia v NT Handrails Pty Ltd

[2017] FWC 3210

[2017] FWC 3210

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kyne Puhia
v
NT Handrails Pty Ltd
(U2017/3406)

COMMISSIONER SIMPSON SYDNEY, 15 JUNE 2017

Application for an unfair dismissal remedy – Applicant’s continued failure to file material in accordance with directions – application dismissed

Background

[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (the Act) by Mr Kyne Puhia who alleges that the termination of his employment with NT Handrails Pty Ltd (NT Handrails) was unfair. The application was lodged in Brisbane on 29 March 2017.

[2] On 2 May 2017 the matter was listed for Conciliation, by Telephone before a Fair Work Commission Conciliator. The matter was not settled at Conciliation and was referred to Commissioner Bissett’s chambers for arbitration.

[3] On 16 May 2017, Commissioner Bissett issued directions outlining dates for the filing of material. The Applicant was to file with the Commission, and serve on NT Handrails, any material to be relied on by close of business Tuesday 6 June 2017. The Respondent was to file with the Commission and serve on Mr Puhia, any material to be relied on by close of business Tuesday 27 June 2017.

[4] On 30 May 2017, the parties were sent an email from my chambers advising them that the matter had been reallocated to my chambers. The matter was listed for Mention on Tuesday 6 June 2017.

[5] During the course of the Mention, I sought confirmation from Mr Puhia that he was in a position to file his material by the end of the day, in accordance with the directions issued by Commissioner Bissett. Mr Puhia confirmed he would have his material ready to be filed by that afternoon. Mr Puhia asked for an email address to send the material to. After the Mention, my Associate contacted Mr Puhia and provided him with the address for my chambers.

[6] The Commission did not receive any material from Mr Puhia by the deadline outlined in Commissioner Bissett’s directions, nor did it receive a request for an extension.
[7] On 7 June 2017, my chambers received a call from Ms Harris from NT Handrails advising she had not received any material from Mr Puhia.

[8] On Thursday 8 May 2017, Mr Puhia was sent an email from my chambers requesting he provide an explanation why his material had not been filed in accordance with directions. Mr Puhia was to provide an explanation by 5:00pm Friday 9 June 2017.

[9] On Monday 12 June 2017, the Commission had not received a response from Mr Puhia, nor did it receive any material. A further email was sent to Mr Puhia by my chambers which read as follows:

“Dear Mr Puhia

I refer to the above matter and email below sent to you on 8 June 2017.

You were asked to advise the Commission by 5:00pm Friday 9 June 2017, why your material has not been filed in accordance with directions.

No response has been received from you.

The Commissioner advises that the Respondent may be prejudiced by your failure to file your material on time.

The Commissioner is willing to extend the time for you to file your material by 12:00pm Tuesday 13 June 2017.

The Commissioner advises that if the Commission does not hear from you by this time, he must give consideration to dismissing your application for want of prosecution.

Regards”

[10] As at close of business Tuesday 13 June 2017, the Commission had not received a response from Mr Puhia, nor did it receive any material.

Consideration

[11] In the circumstances it is appropriate for me to consider whether to exercise my discretion to dismiss the application for want of prosecution.

[12] The Commission has power to dismiss an application under section 587 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.”

[13] The Full Bench of Fair Work Commission in Sayer v Melsteel Pty Ltd 1considered that in a case where an Applicant has failed to attend at a Hearing to prosecute the matter it would be open to the Fair Work Commission to consider exercising the power of the Tribunal under section 587(1). Sayer further considers that it would not be inconsistent with s. 587(1) to dismiss the application without examining the merits.

[14] In Joseph Adams v Monadelphous Engineering Pty Ltd 2 the Full Bench dismissed the appeal brought by the Appellant as he failed to comply with directions, failed to communicate with the Commission and failed to appear at the hearing.

“…There has been a failure in this matter by the Applicant to file appeal books, to comply with directions and to respond to communications from the Commission and the Company and now a failure to appear at the designated hearing of the application. In all these circumstances, we have decided that the appeal should be dismissed for want of prosecution.”

[15] In Chand v State Rail Authority of NSW 3, where a Full Bench of the Australian Industrial Relations Commission dismissed an application for want of prosecution, the Full Bench noted that the classic circumstances that enliven a court’s discretion to dismiss an action for want of prosecution were a failure, typically a repeated failure, by an applicant to comply with directions of the court or a prolonged period of inactivity on the part of the applicant.

[16] Mr Puhia has been given a reasonable opportunity by the Commission to file his material on more than one occasion. There is no evidence to suggest Mr Puhia was not aware his material was due to be filed with the Commission and in accordance with the directions issued on 16 May. On the contrary, Mr Puhia confirmed during the telephone Mention on 6 June 2017 that his material would be filed on time.

[17] There is no suggestion that Mr Puhia made any attempt to contact the Commission to seek an extension. Despite this, Mr Puhia was granted a one week extension to file his material. Mr Puhia again failed to submit his material, or contact the Commission to indicate any reason as to why he failed to comply with this further direction.

[18] Further, there is no reasonable explanation as to why Mr Puhia did not respond to the number of emails sent to him by my chambers. The emails were sent to the email address listed on Mr Puhia’s Form F2, which was chosen as the preferred method of communication by Mr Puhia.

[19] When the history of the matter is looked at objectively, it is clear that Mr Puhia has not been denied natural justice. In my view, it is NT Handrails that has been prejudiced Mr Puhia’s failure to comply with directions issued by the Fair Work Commission, and repeated failure to engage in any communication.

[20] The history of this matter as outlined above make it clear, in my view, that this matter should be dismissed pursuant to s.587 for the reasons discussed above. Accordingly the matter is dismissed.

COMMISSIONER

 1   Sayer v Melsteel Pty Ltd[2011] FWAFB 7498.

 2   Joseph Adams v Monadelphous Engineering Pty Ltd [2013] FWCFB 1470.

 3   Chand v State Rail Authority of NSW 19 December 2006 [PR975108].

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