Lawes v Recochem Inc

[2020] FWC 5662

[2020] FWC 5662

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jonathon Lawes
v
Recochem inc
(U2020/5812)

DEPUTY PRESIDENT BEAUMONT PERTH, 25 OCTOBER 2020

Application to dismiss an application for an unfair dismissal remedy – s 399A(1)(b)

[1] On 18 September 2020, Recochem Inc. (Respondent) made an application under s 399A(1)(b) of the Fair Work Act 2009 (Cth) (Act) for the unfair dismissal application of Mr Jonathon Lawes (the Applicant) to be dismissed. The application has of course been made in the context of an unfair dismissal application (substantive application).

[2] This decision deals with the Respondent’s application to dismiss the substantive application. In these types of applications, one is always guided by the premise that the power to dismiss a substantive application should only be exercised cautiously and sparingly; particularly where, as here, the Applicant has sought orders for relief for his alleged unfair dismissal. 1 That 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’.2

[3] The exercise of the Commission’s powers under s 399A of the Act to dismiss an unfair dismissal application for the identified unreasonable conduct set out in ss (a)-(c), involves the exercise of a broad discretion. This type of matter involves two discretionary decisions. First, that the applicant has unreasonably failed to attend a conference or hearing, comply with a direction or order, or discontinue the application after a settlement agreement has been concluded. 3

[4] Because the decision-maker has some latitude in making a value judgment as to whether the relevant failure on the part of the applicant was unreasonable, it is properly characterised as a discretionary decision. 4

[5] Second, if the decision-maker is satisfied that the applicant has unreasonably failed to comply with one or more of their obligations under paragraphs (a) to (c) of s 399A, the decision-maker has a further discretionary decision as to whether the unfair dismissal application should be dismissed. 5

Background

[6] On 4 June 2020, the parties were directed to respond to a series of questions issued by Chambers to determine whether the proceedings could be conducted via video conference, among other matters. Responses were due to be provided by 17:00 AWST, 8 June 2020. The Applicant did not respond within the requisite period and was afforded an extension of time to 11 June 2020 to file a response. Such response was filed by 11 June 2020, but it was not served on the Respondent or the Respondent’s representative in accordance with the directions.

[7] Further directions were issued to the parties on 4 August 2020 regarding the filing of submissions, witness statements and other material the parties wished to rely upon in the substantive application. The Applicant was required to file such materials by 16:00 AWST on 18 August 2020. The Applicant filed the materials at 17:45 AWST on that same date.

[8] By the directions of 4 August 2020, the Applicant was directed to file submissions in reply by 16:00 AWST on 15 September 2020, together with any objections to the matter being heard on the papers as requested by the Respondent. On 16 September 2020, Chambers notified the parties that as of 09:30 AWST on that same date, Chambers had not received submissions in reply from the Applicant.

[9] Consequently, the Applicant was directed to urgently confirm his intention to make submissions in reply. If he intended to file reply submissions, he was directed to file them urgently together with a request for the grant of an extension of time in which to file, reasons as to why the materials were not filed in time and why an extension should be granted. The Applicant was also directed to urgently inform the Commission whether he wished to be heard or if he preferred that the matter be determined on the papers. By the afternoon of 18 September 2020, the Applicant had not complied with the aforementioned directions.

Non-compliance with directions

[10] To date the Applicant has filed some material, although not all the material he was directed to file. Further, there has been occasion where material has been filed late.

[11] Section 399A of the 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.’

[12] The Applicant has failed to comply with the directions issued on 4 June 2020, concerning the programming of the matter. He has done so in circumstances where he was clearly informed about: (a) the necessity to comply with the directions; (b) what could occur if he did not comply with the directions; and (c) the resources available to assist him to prepare the requisite materials. Chambers issued a subsequent email on 10 June 2020, noting that his responses were due by 8 June 2020, those responses had not been received, and that the Applicant had until 10:00 AWST on 11 June 2020, to provide his responses. A response was received from the Applicant at 9:31 AWST on 1 June 2020.

[13] Directions for the substantive application were issued on 4 August 2020. Those directions set out that the Applicant was directed to file certain materials by 18 August 2020 (the submissions and evidence supporting the substantive application). Those materials were filed late by 1 hr and 45 minutes. The Applicant apologies for the late filing noting that he had experienced issues with his scanner. It is observed that at least one of the documents appeared to have been scanned. There was no evidence advanced to the contrary regarding the difficulties concerning the scanning.

[14] By the directions of 4 August 2020, the Applicant was required to file submissions in reply by 16:00 AWST on 15 September 2020. He did not do so.

[15] In arriving at the decision, I have considered that the power to dismiss a substantive application should only be exercised cautiously and sparingly. Furthermore, I am guided by the object of Part 3-2, which states:

(1) [Object]

The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) [“Fair go all round” to be accorded]

The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and the employee concerned.

[16] I am reluctant to extinguish the Applicant’s right to have his application heard and determined according to the law. The Applicant has been provided with clear direction on what was required, the resources available and the timeframe in which materials were to be filed.

[17] However, I observe that with respect to the substantive application, the most pressing of materials are those that support the unfair dismissal application. These materials were filed on the day required, albeit they were approximately two hours late. I do not consider that the Respondent has been prejudiced by this delay. They were put on notice of the Applicant’s case, notwithstanding that such ‘notice’ was slightly tardy, and in my view the Respondent has had ample time in which to prepare a response – and its case.

[18] It is not uncommon for parties in applications such as these to be unrepresented, hence why the Commission provides access to various resources to assist. While the Applicant’s reasons for the delays and for the non-responsiveness concerning the filing of reply submissions are far from impressive, they are nonetheless frank. He is not the best on computers, financially he is not doing too well, and his absolute intention was to get everything in on time – but he understands that his materials have not been submitted at the correct time. Further, while the Applicant has decided not to file submissions in reply concerning the substantive application and was directed to do so, I do not consider this to be unreasonable in circumstances where the Applicant has nevertheless filed supporting documents for the substantive application.

[19] The object of Part 3-4 not only requires of me to ensure that a ‘fair go all around’ is accorded to the employee, but also to the employer. It had always been open to the Applicant to prepare his materials in a timely manner, or at the very least to consider the timeframe he would require to do so, and thereafter request an extension of time providing the Commission with reasonable notice of such request. He has not.

[20] While I acknowledge there has been repeated non-compliance with directions of the Commission relating to the substantive application, I am unconvinced that the Applicant’s substantive application should be dismissed. The Applicant has not been unresponsive throughout the entire process, and ultimately the most critical of materials required to be filed (supporting submissions and evidence regarding the substantive application), were at least received on the day directed – albeit marginally late.

Conclusion

[21] I have considered the submissions and evidence provided by the parties and have concluded, on balance, that the Applicant has not unreasonably failed to comply with directions of this Commission relating to his application. I am therefore unpersuaded that I should exercise my discretion under s 399A and dismiss the substantive application. The decision is not one made lightly, and I have indeed adopted a cautious approach when dealing with the application. An Order 6 dismissing this application will be issued today.

DEPUTY PRESIDENT

Appearances:

Ms Theresa Moltoni of IRIQ Law for the Applicant
Mr. Jonathon Lawes, Respondent

Hearing details:

2020;
Perth (by Telephone);
October 23.

Final written submissions:

2020;
October 19.

Printed by authority of the Commonwealth Government Printer

<PR723803>

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

 2   John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925, [31].

 3   Robin Hansen v Calvary Health Care Adelaide Limited[2016] FWCFB 5223.

 4   Coal and Allied v AIRC (2000) 203 CLR 194,[19].

 5   Robin Hansen v Calvary Health Care Adelaide Limited[2016] FWCFB 5223.

 6   PR723805