Mark Carberry v CFC Employment Trust T/A Centurion Transport

[2017] FWC 6102

[2017] FWC 6102

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Carberry
v
CFC Employment Trust T/A Centurion Transport
(U2017/8568)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 20 NOVEMBER 2017

Application for an unfair dismissal remedy.

[1] Mr Mark Carberry lodged an unfair dismissal application on 8 August 2017 alleging that the termination of his employment by CFC Employment Trust was unfair.

[2] At all times Mr Carberry was represented by Ms Rachel Le Roux of Le Roux Legal Pty Ltd.

[3] The application was not resolved at conciliation and on 11 September 2017 directions were issued for Mr Carberry to lodge his evidence and submissions by 2 October 2017.

[4] On 2 October 2017, a member of the Commission staff contacted Ms Le Roux and left a voice message on her mobile advising that submissions were due that day and that if an extension was required, a formal request would need to be made.

[5] On 3 October 2017, an email was sent to Ms Le Roux advising that there had been no compliance with the directions of the Commission and if an extension of time was required then a request needed to be put in writing. She was advised that if there was no response, the matter would be referred to a non compliance hearing. A further voicemail message was left to the same effect.

[6] On 5 October 2017, a further voicemail was left with Ms Le Roux advising that the matter was listed for a non-compliance hearing on 6 October 2017. On the same day contact was made with Mr Carberry. He was advised that nothing had been filed on his behalf. He was advised that we had been unable to contact his representative and he advised that she was dealing with some personal issues. He said she was still acting for him and she had told him that she was sorting it out.

[7] The matter was listed for a non-compliance hearing on 6 October 2017. Ms Le Roux did not participate in the non-compliance hearing. I accepted Mr Carberry’s submission that he was entitled to rely upon his representative to comply with the directions. However at that hearing I advised Mr Carberry that the obligation to comply with the directions rested with him and if his representative was unable to comply he was still required to comply. I granted Mr Carberry an extension of time to lodge his material and arranged for him to be provided with copies of documents to assist him prepare his material. I advised him that if he did not comply with directions, that CFC could apply to have his application dismissed.

[8] Directions were issued for Mr Carberry to file material by 20 October 2017. On 18 October 2017, an SMS message was sent to Mr Carberry reminding him that his submissions were due on 20 October 2017. On 20 October 2017, a voice message was left on Mr Carberry’s phone about his overdue material. On the same day, Ms Le Roux phoned and advised that she thought the submissions were due by 4pm and that they would be submitted by close of business that day and sought an extension of time. However nothing was filed.

[9] On 23 October 2017, Mr Carberry and his representative were advised that there had been non compliance with the directions and he was advised that he needed an extension of time to lodge any material. On the same day Mr Carberry advised that he had spoken to his representative who had advised him that she would file the material. The Commission staff member advised him that despite her assurance on 20 October 2017 that the material would be filed that day, it had not been filed. He was advised of the need to seek an extension of time.

[10] On 23 October 2017, Ms Le Roux wrote seeking an extension of time. In that email Ms Le Roux guaranteed that the material would be filed by close of business Western Australian time. On the same date CFC filed an application under s.399A of the Act for the application to be dismissed. On the same day, directions were sent to Mr Carberry to file and serve by close of business on 30 October 2017 any submissions as to why the matter should not be dismissed and evidence or other documentary material that supported those reasons.

[11] On 27 October2017, Mr Carberry advised that he had not been able to make contact with his representative. Further Mr Carberry advised that he was going overseas on Sunday and he was advised to send the Commission an email explaining his situation.

[12] On 30 October 2017, Ms Le Roux advised that Mr Carberry intended filing and serving his response in accordance with the directions.

[13] On 30 October 2017, Ms Le Roux sought leave to provide the Commission with submissions setting the extreme and extenuating circumstances faced by her. She sought a confidential discussion with the Commission about the s.399A application.

[14] On 31 October 2017, Mr Carberry contacted the Commission and was advised that his representative had not filed any submissions but had made a request for a confidential telephone conversation. He was advised that if he did not want to rely on his representative he needed to represent himself and reply to the s.399A application. He advised that he would be absent from Australia until 15 November 2017. He was advised that his representative had not advised us of his absence from Australia. He advised that he would respond to the s.399A application that day.

[15] On the same day, the Panel Head Termination of Employment caused Ms Le Roux to be advised that she needed to put her submission in writing and he would determine if it needed to be provided to the other party.

[16] On 1 November 2017, Ms Le Roux sent an email to the Commission. On 9 November 2017, after the matter had been allocated to me, I advised Ms Le Roux that I would not have regard to any submissions that had not been served on the Respondent. The matter was set down for a hearing on 16 November 2017 having regard to Mr Carberry’s absence overseas until 15 November 2017.

[17] At the hearing, Ms Le Roux attended but Mr Carberry did not. I granted permission to Mr Carberry’s representative to appear.

[18] Mr Jeff Uphill, for CFC, submitted that Mr Carberry had failed to comply with three sets of directions, the original directions; the directions issued after the non compliance hearing and the directions to file in response to the s.399A application. At the date of the hearing, nothing had been filed. It was submitted that Mr Carberry had completely disregarded the directions. It submitted that in exercising my discretion to dismiss I should take into account that Mr Carberry’s claim had no reasonable prospects of success as the conduct relied upon by CFC to dismiss Mr Carberry was caught on camera.

[19] At the conclusion of Mr Uphill’s submission, I advised Ms Le Roux of what I had told Mr Carberry on the last occasion about his obligation to file the material if his representative was incapable of doing so. This was to ensure she was given an opportunity to address Mr Carberry’s responsibility.

[20] Ms Le Roux submitted that the reason for Mr Carberry’s non compliance rested with her as she had had a number of personal issues which prevented her from completing the work necessary for her to file the material. She submitted that it was not unreasonable for Mr Carberry to rely on her to perform the work. Ms Le Roux submitted that it could not be said that Mr Carberry’s case was without merit.

[21] In reply Mr Uphill submitted that nothing of substance had been put to explain the delay. He submitted that Mr Carberry must take some responsibility. It was incumbent on him, once it became clear that his lawyer was not doing the work, to make other arrangements. He can’t simply say it is her fault.

Consideration

[22] In deciding whether to dismiss an application, it is necessary to determine if Mr Carberry unreasonably failed to comply with directions. If that finding is made, then I must determine whether to exercise my discretion and dismiss the application.

[23] I am satisfied that Mr Carberry’s conduct in failing to comply with the directions in this matter was unreasonable.

[24] Ms Le Roux’s conduct fell well short of what could reasonably be expected of a legal practitioner. She failed in her obligations to her client and the Commission. She advised the Commission that she would file material and then did not do it. I can only assume she made the same commitments to Mr Carberry. Whatever Ms Le Roux’s personal circumstances were, she had an obligation to complete the work or advise Mr Carberry that she could not complete the work and arrange for him to receive assistance from a lawyer who could.

[25] The Commission has often had to consider representative error, particularly in unfair dismissal applications, when representative error has caused an application to be filed outside the 21 days. 1 I consider it is appropriate to take the same approach when deciding if Mr Carberry’s failure to comply was unreasonable. While Ms Le Roux’s conduct explains part of the reason for the non compliance, it does not explain it all.

[26] It should have been clear to Mr Carberry, at least by the time of the non compliance hearing, that his lawyer was unreliable. It was made clear to Mr Carberry at that hearing that the responsibility to file the material was his. He was provided with documents to assist him file the material. But he did not do so. Despite knowing that he was leaving the country he took no other steps to comply with his obligations, including seeking an extension of time to file. Further, he did not file any material in opposition to the application to dismiss to explain why his conduct, in not complying with the directions, was not unreasonable. He chose again to rely upon Ms Le Roux.

[27] In deciding whether to exercise my discretion and dismiss Mr Carberry’s application I have had regard to the decision of the Full Bench in Raschilla v Ausino West Pty Ltd 2 where it was said:

“[9] The Commission’s powers to dismiss a substantive application should only be exercised with caution. Caution is required because the effect of such an order is to extinguish an applicant’s right to have their substantive application heard and determined by the Commission (assuming no other jurisdictional impediment arises preventing such determination). In General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, BarwickCJ said at paragraph 8:

‘The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to Order 26, r. 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated.’”

[28] I do not accept the submissions of CFC that I could be satisfied that Mr Carberry’s case is without merit and as such have not taken the merits of the claim into account when deciding whether to dismiss Mr Carberry’s application.

[29] I am not at this time prepared to exercise my discretion to dismiss Mr Carberry’s application. While I appreciate CFC’s frustration in relation to this matter, it of course has its rights under the Act to apply for costs both against Mr Carberry and/or against Ms Le Roux if an unreasonable act or omission in connection with the conduct of the matter has caused them to incur costs.

[30] On balance, I consider that Mr Carberry should be afforded one more opportunity to file his material. He should do so knowing that he cannot rely upon Ms Le Roux and that the obligation to file rests with him. However, I am not prepared to dismiss the s.399A application. I am prepared to give Mr Carberry a further week to file his material. If the material is not filed, I will exercise my discretion to dismiss his unfair dismissal application without conducting a further hearing.

DEPUTY PRESIDENT

Appearances:

R. Le Roux for the Applicant.

J. Uphill for the Respondent.

Hearing details:

2017.

Melbourne and Perth, by telephone link:

November 16.

 1   Robinson v Interstate Transport Pty Ltd (2011) 211 IR 347 at 351-352

 2   [2017] FWCFB 5952

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