Leon Reece Fearon v The Trustee for Resinc Solar Unit Trust atf Resinc Solar Pty Ltd
[2024] FWC 2834
•11 OCTOBER 2024
| [2024] FWC 2834 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Leon Reece Fearon
v
The Trustee For Resinc Solar Unit Trust atf RESINC Solar Pty Ltd
(U2024/7957)
| DEPUTY PRESIDENT GRAYSON | SYDNEY, 11 OCTOBER 2024 |
Application for unfair dismissal remedy - s.399A application – Failure to comply with directions – Application dismissed
This decision concerns an application made under s.399A of the Fair Work Act 2009 (the Act) by the Trustee for Resinc Solar Unit Trust as Trustee for RESINC Solar Pty Ltd (the Respondent) to dismiss an unfair dismissal application brought against it by Mr Leon Reece Fearon (the Applicant).
For the reasons that follow, the Respondent’s application under s.399A is granted, and the Applicant’s application for an unfair dismissal remedy is dismissed.
Procedural background
On 9 July 2024, the Applicant applied to the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Act. The Applicant lodged this application by way of a Form F2 – Unfair Dismissal Application (substantive application) which claimed that the Respondent had terminated the Applicant’s employment on 18 June 2024.
On 20 August 2024, the Respondent filed a Form F3 – Employer Response which raised two jurisdictional objections to the application, being:
(a)The Applicant was not ‘dismissed’ for the purposes of ss.385(a) and 386 because the Applicant was an independent contractor; and,
(b)The Applicant was not an ‘Australian-based employee’ as defined at s.35 of the Act.
On 28 August 2024, the matter was allocated to my Chambers, and it was listed for Case Management Hearing by Microsoft Teams at 2:00 PM on 2 September 2024. Accompanying the Notice of Listing, my Chambers issued Directions for the filing and service of evidence and submissions on which the parties intended to rely as well as listing the matter for Hearing to determine the matter’s jurisdiction. Following the circulation of the Notice of Listing and Directions, my Chambers received an adjournment request by the Applicant, which was granted following the provision of supporting documents which established that the Applicant would be travelling at the time of the listing. The matter was subsequently listed for Case Management Conference at 3:00 PM on 19 September 2024, and the Directions and Hearing date were amended in order to accommodate the adjournment.
The Respondent complied with the Directions and filed its material on 17 September 2024.[1]
On 19 September 2024, the Applicant did not join the Case Management Conference in time for its commencement, and my Chambers contacted him by email to raise this matter, after discovering that the contact telephone number provided on the Form F2 was international and unable to be reached. The Applicant contacted my Chambers by email at 3:10 PM on 19 September 2024 and was ultimately able to join the Case Management Conference, which proceeded without incident.
Following the Case Management Conference, my Chambers contacted the Applicant on his request to refer him to the Commission’s Workplace Advice Service on 25 September 2024. The Applicant did not follow up with this referral with either Chambers or the Workplace Advice Service.
The Directions issued by my Chambers required the Applicant to file his material in chief by no later than 4:00 PM on Friday, 27 September 2024. The Applicant failed to comply with this Direction.
On 30 September 2024, the Respondent contacted Chambers by email to raise its concern concerning the Applicant’s failure to comply with the Directions. The Respondent requested that I consider dismissing the application pursuant to s.587 of the Act, based on the Applicant’s non-compliance and the application’s lack of reasonable prospects of success.
On 1 October 2024, my Chambers again sought to contact the Applicant by email concerning his request to be referred to the Workplace Advice Service, which he had yet to engage with. Separately and after this email was sent, my Chambers circulated an email to all parties drawing the Applicant’s attention to the Respondent’s request and indicating that the Applicant had failed to comply with the Directions issued. This email explained that the Applicant could discontinue his application by reply email to my Chambers in the event he did not wish to proceed with it. The Applicant was advised that failure to file material by 4:00 PM on 2 October 2024, in the event he sought to press his application, may result in:
(a)The determination of the application based on the material filed by the Respondent alone;
(b)The dismissal of the application pursuant to s.587 of the Act; or,
(c)The Respondent’s filing of an application that I exercise my discretion to dismiss the application pursuant to s.399A of the Act.
On 2 October 2024, the Respondent filed an application by way of Form F1 seeking that the Applicant’s application for unfair dismissal remedy be dismissed:
(a)Pursuant to s.399A(1)(a) and (b) of the Act, being that the Applicant unreasonably:
(i) Failed to attend a conference or hearing held by the FWC in relation to the application;
(ii) Failed to comply with a direction or order of the FWC in relation to the application; and,
(b)Pursuant to s.587(1)(c) of the Act on the basis that the application had no reasonable prospects of success.
The Respondent filed this application by email to my Chambers, to which the Applicant was copied.
On 8 October 2024, my Chambers sent an email to the parties drawing the Applicant’s attention to the Respondent’s application (and attaching the relevant correspondence and documents). This email directed the Applicant to file and serve submissions providing reasons as to why the Commission should not dismiss the substantive application, as well as evidence or other documentary material to support those reasons (such as a medical certificate) by no later than 4:00 PM on 10 October 2024. This email indicated that in the event the Applicant filed this material by the due date, the submissions would be considered and the application may be dealt with on the papers. Once more, the Applicant was advised that should he no longer wish to pursue his application and not intend to address these directions, he was to discontinue his application (either by reply email or by completion and return of the Form F50 – Notice of Discontinuance). The email indicated that in the event the Applicant did not file and serve material responding to the Respondent’s application to dismiss the substantive application by the due date, it was likely that I would determine to dismiss his application without further notice to him.
To date, the Applicant has not filed any material with the Commission, either in support of his substantive application in accordance with the substantive Directions issued, or establishing why his application should not be dismissed in accordance with the subsequent Direction. The Applicant has not otherwise engaged with the Commission in relation to his application for an unfair dismissal remedy since 19 September 2024 and has not been able to be contacted by the Commission since this time.
Consideration
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.
Section 587 of the Act provides as follows:
586 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.
Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.
As the Applicant did not file any material in opposition to the application to dismiss, I will determine the application on the papers.
Consideration of s.399A(1)(a) and (b)
The Respondent’s application relied upon ss.399A(1)(a) and (b). The former pertains to a ground to dismiss applications due to an unreasonable failure by an Applicant to attend a listing before the Commission. This was not further particularised in the Respondent’s application and I find that the Applicant has not unreasonably failed to attend any listed events before the Commission. As detailed at [5] and [7] above, the Applicant made an adjournment request which was granted in relation to the first Case Management Conference and attended the subsequently listed Case Management Conference on 19 September 2024. The Respondent did not identify any other basis on which it sought to rely on s.399(1)(a) except for a submission that the Applicant had been ‘unwilling to participate in the proceedings commenced at his own initiative’.
I will now turn to consider the respondent’s application to dismiss the substantive application on the basis of s.399A(1)(b).
In Lockyear v Cox,[2] a Full Bench considered s.399A and stated as follows:[3]
[57]In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:
1.An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.
2.The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.
3.The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.
4.In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.
5.A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.
The Applicant was appropriately informed of the application to dismiss these proceedings on the day it was made by the Respondent. The Applicant has been given adequate opportunity to respond to the application, and the correspondence from the Commission clearly identified that the Commission would proceed to determine the application to dismiss these proceedings in the absence of a response from him. I am satisfied that the first three steps as set out in Lockyear v Cox[4] have been met, and that the final two steps are not relevant in the present circumstances given that the Applicant has not filed any material and accordingly no facts are disputed.
I note that the Applicant has not filed any response to, nor made any contact with the Commission concerning, the s.399A application. I conclude that the Applicant has not provided a reasonable explanation for failing to comply with Directions to file material intended to be relied upon in the determination of the substantive application. I am satisfied, for the purposes of s.399A(1)(b) of the Act, that the Applicant’s failure to comply with the Directions issued was unreasonable.
Consideration of s.587(1)(c)
The Respondent’s application to dismiss the substantive application also relied upon the general power to dismiss applications at s.587 of the Act and identified subsection (1)(c), being that it contended that the substantive application had no reasonable prospects of success. In support of this contention, the Respondent relied on its jurisdictional objections and submitted that there was no real question to be answered on the facts or the law on that basis.
Given that I am satisfied as to the establishment of s.399(1)(b) of the Act, it is not necessary for me to consider this aspect of the Respondent’s application.
Conclusion, order and disposition
In the circumstances described at [9] to [15] and [22] to [24] above, I am empowered to exercise the discretion pursuant to s.399A of the Act to dismiss the substantive unfair dismissal application. While this discretion is to be exercised with caution,[5] I am satisfied that it should be exercised given that:
(a)The Applicant has unreasonably failed to comply with Directions issued by the Commission;
(b)The Commission has afforded the Applicant an adequate opportunity to respond to the s.399A application or otherwise engage with the Commission about his substantive unfair dismissal application; and,
(c)The Applicant has been on notice of the consequences of his non-compliance with the substantive Directions generally since 1 October 2024, and of the consequences of failing to comply with the subsequent Directions since 8 October 2024.
For the reasons given, the Respondent’s application under s.399A is granted.
The Applicant’s application for an unfair dismissal remedy is dismissed pursuant to s.399A(1) of the Act. An Order to this effect will be issued with this decision.[6]
DEPUTY PRESIDENT
[1] The Respondent sought an extension of time to file its material and provided supporting documents to my Chambers, after which amended Directions were issued which reflected equal timings for both parties to file their materials.
[2] [2021] FWCFB 875 (Lockyear v Cox).
[3] Lockyer v Cox, [57].
[4] Ibid.
[5] John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925 at [31].
[6] PR780154.
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