Mark Chilcott v The Trustee for Westarbor Trust
[2022] FWC 120
•24 JANUARY 2022
| [2022] FWC 120 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mark Chilcott
v
The Trustee For Westarbor Trust
(U2021/11019)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 24 JANUARY 2022 |
Application for an unfair dismissal remedy - application to dismiss under s 399A - application for an unfair dismissal remedy dismissed.
Introduction
On 1 December 2021, Mr Mark Chilcott (the Applicant) made an unfair dismissal application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act) on the basis that he had been unfairly dismissed by The Trustee For Westarbor Trust (the Respondent).
Directions were issued for answering of preliminary questions so the matter could be programmed. The Applicant did not comply with these directions and failed to comply with further directions after an extension was granted for the answering of preliminary questions.
This decision deals with the Respondent’s application under s 399A of the Act to dismiss the substantive application. Whilst the Respondent also sought to rely upon s 587(1)(c) of the Act to dismiss the substantive application, for reasons that will become clear, it was unnecessary to contend with that ground.
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 subsections (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.[1]
Second, if the decision-maker is satisfied that the applicant has unreasonably failed to comply with one or more of their obligations referred to in subsection (b) of s 399A of the Act, the decision-maker has a further discretionary decision as to whether the unfair dismissal application should be dismissed.[2]
In this instance, I have decided to dismiss the Applicant’s unfair dismissal application under s 399A(1)(b) of the Act. My detailed reasons follow.
Background
Having filed his application on 1 December 2021, the Applicant was directed to attend a conciliation conference on 17 December 2021 with a staff member of the Commission. The conciliation conference was cancelled at the request of the Applicant and the parties were advised that the matter had been allocated to my Chambers.
On 20 December 2021, directions were issued to both parties to provide responses to questions asked with a view to assisting with the programming of the matter (First Directions). The parties were directed to respond to those questions by 17:00 (AWST), 29 December 2021. The First Directions were sent to the Applicant at the email address that had been provided when he made his application, and to the email address of his paid representative.
On 30 December 2021, Chambers emailed the Applicant informing him that he had been non-compliant with the First Directions. A telephone call was also placed with the Applicant on 30 December 2021, using the number provided by the Applicant. A voicemail was left for the Applicant informing him he had been non-compliant with the First Directions and that further non-compliance with directions may lead to the dismissal of his application. The Applicant was directed to write to Chambers explaining his non-compliance and seeking an extension of time in which to comply with the First Directions by 3 January 2022.
On 3 January 2022, the Applicant emailed Chambers apologising for the non-compliance with the First Directions and explaining that he had handed his paperwork to his lawyer, and he had not realised that the lawyer had not communicated with Chambers. An extension in which to comply with the First Directions was sought.
On 3 January 2022, a Mr Stephen Gaffney of Unfair Dismissal Experts Pty Ltd (Unfair Dismissal Experts) lodged a Form F54 notifying the Commission that Unfair Dismissal Experts had ceased to act for the Applicant.
By email dated 4 January 2022, Chambers advised the parties that the Applicant had been provided with an extension of time until 12:00pm (AWST), 7 January 2022, in which to respond to the First Directions (Second Directions). A response was not forthcoming from the Applicant in that time frame and by 12:05pm of that same day, the Respondent applied to have the unfair dismissal application dismissed under ss 399A(1)(b) and 587(1)(c) of the Act.
By email dated 11 January 2022, directions were issued for the parties to file materials in respect of the Respondent’s application to have the unfair dismissal application dismissed (Third Directions). The Applicant was provided until midday on 14 January 2022 to file his materials. As of 12:29pm (AWST) on 14 January 2022, the Applicant had not filed any materials. Chambers telephoned the Applicant on that same day at 12:16pm (AWST) and the Applicant was informed that as he had not provided any submissions, materials, or any reason for the further non-compliance, unless a response was sent to Chambers by 5:00pm (AWST) on 14 January 2022, the matter would be dealt with on the basis that the Applicant had not submitted any materials regarding his non-compliances.
The legal framework
It is accepted that there is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at her or his initiative.[3]
Of course, 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.[4] 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’.[5]
The Commission’s powers to dismiss an application are set out generally at s 587 of the Act and specifically in respect to unfair dismissal applications under s 399A. Those sections state:
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.
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.
Whenever exercising the power to dismiss an application under either section, s 578 is relevant. It provides:
578 Matters the FWC must take into account in performing functions etc.
In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Consideration
Considering the lack of response from the Applicant and having received no objection to the proposed course of dealing with the matter, the Respondent’s application to dismiss the unfair dismissal application has been dealt with on the papers.
The Respondent submitted that the unfair dismissal application should be dismissed because the Applicant had failed to comply with the directions of the Commission on several occasions. It noted that the Commission is required to consider the exercise of discretion under s 399A(1)(b) by reference to an objective evaluation of the applicant’s conduct and whether such conduct was unreasonable in the circumstances.[6]
According to the Respondent, the Applicant had engaged in a wanton failure to prosecute his unfair dismissal application and it followed that such conduct was objectively unsatisfactory. Notwithstanding having been provided with ample time to respond to the various directions, the Respondent observed that the Applicant had chosen not to do so.
The Respondent further observed that the Applicant had from 20 December 2021 to provide responses to straightforward questions that would enable his unfair dismissal application to be progressed, but he had not provided any answers that would enable this to occur.
Furthermore, said the Respondent, the Applicant had not provided any reason for, or evidence of, extenuating circumstances surrounding his failure to comply with the directions, despite requests for this information from the Commission, and as the defaulting party, the Applicant had been provided with an opportunity to explain why he did not comply with the directions and why the Commission should not dismiss his unfair dismissal application.
It was the Respondent’s view that the Applicant’s wilful neglect of the directions, further demonstrated the unreasonableness of his conduct.
The Respondent highlighted that it was entitled to have the matter heard quickly and as efficiently as possible. In this respect the Applicant’s conduct had contributed to the delay of the matter. The Respondent submitted that any reasons why the unfair dismissal application should not be dismissed must be considered in the context of the proper administration of justice and fairness to the Respondent to have the matter dealt with quickly and efficiently in accordance with s 577 of the Act.
The Applicant has failed to comply with the First Direction issued on 20 December 2021, 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 30 December 2021, noting that his responses were due by 29 December 2021, those responses had not been received, and the Applicant had until 3 January 2022, to write to Chambers explaining his non-compliance and seeking an extension of time in which to comply with the First Direction.
A response was received from the Applicant on 3 January 2022. However, after that response, the Applicant made no further attempt to comply with the First Directions or the Second and Third Directions that followed.
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 of the Act.
The Applicant has been provided with clear directions on what was required, the resources available and the timeframe in which materials were to be filed.
The object of Part 3-4 not only requires of me to ensure that a ‘fair go all around’ is afforded to the employee, but also to the employer. It had always been open to the Applicant to respond to the questions asked of him 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. The First Directions were not onerous.
I am satisfied that there has been repeated non-compliance with directions of the Commission relating to the substantive application, and that such conduct has been unreasonable in all circumstances.
The Applicant’s repeated non-compliance with directions and absence of cogent reasons for the same, in addition to his non-responsiveness to Chambers’ telephone call concerning the potential dismissal of his unfair dismissal application, have led me to the following conclusion.
Conclusion
I have considered the submissions and evidence provided by the parties and have concluded, on balance, that the Applicant has unreasonably failed to comply with directions of this Commission relating to his application. I am therefore persuaded that I should exercise my discretion under s 399A and dismiss the unfair dismissal application.
The decision is not one made lightly, and I have indeed adopted a cautious approach when dealing with the application to have the unfair dismissal application dismissed. An Order[7] dismissing the unfair dismissal application will be issued today.
As noted, it has proved unnecessary to consider whether the unfair dismissal application had no reasonable prospects of success under to s 587(1)(c) of the Act. Furthermore, the application has been dealt with on the basis that the Respondent was a ‘national system employer’, given no argument was advanced otherwise.
DEPUTY PRESIDENT
Determined on the papers
Final written submissions:
18 January 2022
[1] Robin Hansen v Calvary Health Care Adelaide Limited [2016] FWCFB 5223 [38].
[2] Ibid [38].
[3] Peter Viavattene v Health Care Australia[2013] FWCFB 2532 [39].
[4] John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station[2019] FWCFB 2925 [31].
[5] Ibid [31].
[6] Allen v Army and Air Force Canteen Service [2013] FWC 9209 [42]; Newbond v GM Holden Ltd [2015] FWC 6024 [33].
[7] PR737706.
Printed by authority of the Commonwealth Government Printer
<PR737705>
0
0
0