Lowan Major v Tasmanian Freight Services Pty. Ltd
[2023] FWC 2592
•12 OCTOBER 2023
| [2023] FWC 2592 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Lowan Major
v
Tasmanian Freight Services Pty. Ltd.
(U2023/6385)
| COMMISSIONER JOHNS | MELBOURNE, 12 OCTOBER 2023 |
Application for an unfair dismissal remedy - section 399A - failure to comply with directions of the Commission - application granted.
Background
This decision concerns an application made under s.399A of the Fair Work Act 2009 (Cth) (FW Act) by the Tasmanian Freight Services Pty. Ltd. (the Respondent) to dismiss an unfair dismissal application brought against it by Mr Lowan Major (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 Context
On 14 July 2023, the Applicant filed an application in the Fair Work Commission (Commission) for an unfair dismissal remedy under s.394 of the FW Act.
On 18 August 2023, the Respondent filed its response. No jurisdictional objections were raised.
Attempts at conciliation were attempted, but the matter remained unresolved.
On 1 September 2023, the application was allocated to my Chambers. On the same day, I listed the matter for a mention/directions hearing on 7 September 2023.
On 7 September 2023, I issued directions timetabling the filing of materials and set the matter down for determination. In line with the directions, the Applicant was to file its material first by 21 September 2023. The Applicant did not do so.
On 22 September 2023 at 10:26am, the Applicant was sent an email alerting him of the overdue deadline and directed him to file his material by 4pm on the same day. The Applicant again failed to comply.
On 25 September 2023, I listed the matter for a mention/directions hearing to address the Applicant’s non-compliance.
On 26 September 2023 at 1:43am, the Applicant sent an email stating as follows:
Kerry Gibson is a Tasmanian giant and will always win. His corruption will be discovered eventually but that is not my responsibility.
If the commission acknowledges the traditional land owners of Tasmania, I consider them to think critically about the next inevitable controversy under Mr. Gibson.
I have worked under his leadership and have experienced and heard of many injustices.
A significantly jarring example is of an employee losing his finger due to lack of training and negligence, and all was swept under the rug with ease. This man is as of Polynesian heritage, a very rare example of diversity from what I have experienced at Tasfreight.
I am powerless but maybe one day Kerry might know what his greed has created.
On 26 September 2023 at 9:29am and 12:38pm, the Applicant was contacted via his nominated telephone number with no success.
On 26 September 2023 at 12:44pm, the Applicant was sent an email seeking confirmation whether he still wishes to pursue his application.
On 26 September 2023 at 2:09pm, the Applicant sent an email noting he will be in attendance at the mention/directions hearing on 3 October 2023.
On 27 September 2023 at 9:42am, I issued amended directions providing the Applicant an extension until 4pm on 5 October 2023 to file his material, in lieu of a mention/directions hearing. In this email, the Applicant was put on notice that should he fail to comply with the amended directions, it would be open to the Respondent to apply to have the unfair dismissal application dismissed pursuant to s.399A of the FW Act. The Applicant again failed to comply.
On 6 October 2023, the Respondent filed a form F1 seeking the dismissal of the application pursuant to s.399A(1)(b) of the FW Act.
On 6 October 2023, my Chambers sent a letter to the nominated email addresses of the Applicant and the Respondent noting the filing of the s.399A application and served the relevant form. The Applicant was afforded until 4pm on 11 October 2023 to provide his reason/s for non-compliance. The letter expressly provided that if no material was filed by the deadline or the Applicant’s explanation being unreasonable, his unfair dismissal application will be dismissed.
The Applicant did not provide any reason/s by the deadline provided.
Legislative Framework
Section 399A of the FW Act provides:
‘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.
Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).
(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.’
The Explanatory Memorandum to the Fair Work Act Amendment Bill 2012 (Cth) in respect of s.399A provided as follows:
‘161. Item 2 inserts a new section 399A to enable the FWC to dismiss an unfair dismissal application where the FWC is satisfied that the applicant has unreasonably:
·failed to attend an FWC conference or hearing relating to the application
·failed to comply with an FWC direction or order relating to the application, or
·failed to discontinue the application after a settlement agreement has been concluded.
162. The power to dismiss an unfair dismissal application in these circumstances is not intended to prevent an applicant from robustly pursuing a legitimate unfair dismissal claim. Rather, the amendment is intended to address the small proportion of applicants who may pursue claims in an improper or unreasonable manner. This amendment responds to Panel recommendation 42.
163. In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant. Examples of when the FWC may exercise its discretion to dismiss an application under these provisions may include where:
·an applicant fails to attend an FWC proceeding relating to the matter without providing prior advice and/or without any reasonable excuse for their failure to attend, or
·an applicant continues to pursue an unfair dismissal application despite a settlement agreement having been concluded by the parties.
164. Note 2 to new subsection 399A(1) draws the reader’s attention to the FWC’s capacity to make an order for costs under new section 400A (explained below) if satisfied that the applicant’s failure caused the other party to the matter to incur costs.
165. New subsection 399A(2) provides that the power to dismiss applications is only exercisable on application by an employer.
166. Subsection 399A(3) and Note 1 to subsection 399A(1) make clear that new section 399A is not intended to limit the FWC’s general power to dismiss applications on grounds such as where the application is frivolous or vexatious or has no reasonable prospects of success under section 587. Similarly, item 3 inserts a note to subsection 587(1) to highlight the FWC’s power to dismiss an unfair dismissal application under new section 399A.
167. Item 1 of Schedule 11 inserts a new Schedule 3 into the FW Act. Item 11 of Schedule 3 provides for these amendments to apply in relation to dismissals that take effect after the commencement of this Part.’
Consideration
The Full Bench of the Commission in Ian Kenneth Lockyear v Graeme Cox relevantly provided as follows in relation to the operation of s.399A of the FW Act:[1]
[30] We observe at the outset that the power to dismiss an application is to be exercised cautiously. As the Full Bench observed in John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station:
‘The Courts have long held that the power to dismiss a substantive application should only be exercised cautiously and sparingly; a fortiori where, as here, the appellant has sought orders for relief for his alleged unfair dismissal. This is so because it results 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. In short, the application is dismissed before an applicant has had his/her ‘day in court’, or as the appellant pleaded, he just wanted his case heard.’
…
[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.
[58] In most cases, it is not until these steps have been observed that the Commission is in a position to determine the s.399A application before it. It is worth reiterating that a cautious approach should be taken to dismissing a substantive application for relief.
As set out in the procedural context section of my decision, the first three steps have been satisfied. Because no submissions were filed by the Applicant, steps four and five were not enlivened.
I must now determine the s.399A application before me.
Because there is no evidence to the contrary, I am satisfied that the failure of the Applicant to file his material as per the directions and the amended directions to be unreasonable.
I note the observations made by Deputy President Anderson in Madelyn Taylor v Northline Pty Ltd T/A Northline who stated as follows:[2]
[20] It is well-established that an applicant has an obligation to comply with directions and actively and attentively prosecute their claim. There are minimum disciplines associated with invoking a statutory jurisdiction and litigating in a quasi-judicial tribunal. Invoking the Commission’s jurisdiction is neither cost nor consequence free; doing so puts a responding party (in this instance, the employer) to time and expense in defending its position. It also utilises the services of a publicly funded tribunal whose members and staff have statutory obligations to conduct the institution’s business fairly and efficiently having regard to the interests of multiple applicants and respondents. A minimum discipline is to attend hearings and comply with directions in advance of hearings or, at the very least, provide explanations and seek timely extensions should compliance not be possible.
[21] In Peter Viavattene v Health Care Australia, a full bench stated:
“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).”
[22] Leaving aside the jurisdictional objections in this matter, it is a significant step to dismiss an application that is otherwise within jurisdiction without a merits hearing. However, parliament has underscored the importance of actively and attentively prosecuting one’s claim by empowering the Commission to dismiss applications of its own motion (section 587) or to do so for specific non-compliance on application by a respondent employer (section 399A).
I am satisfied that the requirements of s.399A have been met because there is no evidence to the contrary. I am therefore satisfied that the Applicant’s application for an unfair dismissal remedy should be dismissed.
Conclusion
The Respondent’s s.399A application is granted.
Pursuant to s.399A of the FW Act, the Commission, as presently constituted, dismisses the Applicant’s application for an unfair dismissal remedy on the basis that the Applicant has unreasonably failed to comply with the directions of the Commission.
An order giving effect to this decision will be issued simultaneously with this decision [PR766971].
COMMISSIONER
[1] [2021] FWCFB 875, [30] & [57] – [58].
[2] [2021] FWC 6213, [20] – [22].
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