Mark Farag v Dental Corporation Pty Ltd

[2021] FWC 6212

[2021] FWC 6212

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Farag
v
Dental Corporation Pty Ltd
(U2021/7724)

DEPUTY PRESIDENT MASSON MELBOURNE, 27 OCTOBER 2021

Application made pursuant to s.399A to dismiss application for unfair dismissal remedy.

[1] On 31 August 2021, Mr Mark Farag (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment with Dental Corporation Pty Ltd (the Respondent) was unfair.

[2] An application to dismiss the Applicant’s unfair dismissal application pursuant to s.399A has been made by the Respondent. The background to the s.399A application may be shortly stated as follows.

[3] The matter was allocated to my Chambers on 2 September 2021 for determination. The Respondent filed a Form F3 within which it raised a number of jurisdictional objections, those being that the application was filed outside the 21 day statutory time period, the Applicant was not an employee and that the contended dismissal was not at the initiative of the Respondent.

[4] Directions were issued to the parties on 6 September 2021 setting down a timetable for the filing of material by both parties in relation to the extension of time matter and the additional jurisdictional objections raised. The matter was listed for hearing on 21 October 2021 to deal with the extension of time and other jurisdictional objections.

[5] The directions issued to the parties relevantly set out the following in relation to compliance with directions;

“NON-COMPLIANCE WITH THESE DIRECTIONS

[6] The Deputy President will not accept material that is filed after the expiry of a timeframe unless an extension has been sought and only if granted by the Deputy President prior to expiry of that timeframe.

[7] Requests for an extension of time must be made to Chambers in writing in a timely manner and specify substantial grounds. Parties must not assume an extension of time will be granted.”

[6] The directions required the Applicant to file and serve on the Respondent by close of business 20 September 2021 any submissions, witness statements and other material on which he sought to rely on in relation to the extension of time required for the filing of his unfair dismissal application. The Respondent was then required to file by the close of business on 4 October 2021 its response to the extension of time issue and any other material on which it sought to rely in relation to the other jurisdictional objections raised.

[7] The Applicant was then afforded an opportunity to reply by close of business on 18 October 2021. The Applicant filed his initial material in relation to the extension of time issue but then failed to file his reply material on or by the close of business on 18 October 2021 in accordance with the directions. As a result of the Applicant’s failure to file his material in reply, the matter was listed for a non-compliance hearing at 9:00 am on 20 October 2021.

[8] At the non-compliance hearing, an application pursuant to s.399A was made by the Respondent, requesting that the application be dismissed by reason of the failure of the Applicant to comply with a direction or order of the Commission.

[9] The hearing set down for 21 October 2021 to deal with the jurisdictional matters was vacated and further directions were issued by my Chambers on 20 October 2021 directing the Applicant to file submissions and any other material on which he seeks to rely on in response to the s.339A application by the close of business Friday 22 October 2021. The Respondent was provided with an opportunity to reply by close of business on Tuesday 26 October 2021. Both parties filed material in accordance with the directions.

[10] The Parties were also advised that should either party seek to be heard in relation to the s.399A application they should contact my Chambers, otherwise the matter would be dealt with on the papers.

[11] In material filed by the Applicant on 22 October 2021 the following points were made;

•  Following his dismissal and being anxious and unfamiliar with the relevant legislation and Commission processes, the Applicant engaged Mr Gary Dircks of Just Relations Consultants to represent him in the proceedings.

•  Mr Dirks advised the Applicant on 6 October 2021 that he was no longer able to represent him in the matter. Mr Dircks subsequently filed an F54 on the 12 October 2021 notifying the Commission that he had ceased to act for the Applicant.

•  Following Mr Dircks’ withdrawal of representation, the Applicant then sought alternate representation and it was not until 18 October 2021 that he was able to secure a new representative.

•  Having initially left matters in the hands of Mr Dircks, the Applicant says that he had overlooked the requirements to file reply material by the close of business on 18 October 2021 and was only alerted to his oversight by correspondence received by him from the Respondent seeking advice as to if and when he was intending to file reply material.

•  The Applicant acknowledged his oversight and failure to contact the Commission in circumstances where he was unable to comply with directions.

Consideration

[12] 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.”

[13] The application pursuant to s.399A has been made by the Respondent. Significantly, the Respondent, as one of its jurisdictional objections, disputes that the Applicant was an employee of the Respondent. For the purposes however of a s.399A application I accept that the Respondent is the employer notwithstanding its jurisdictional objection on the matter of the employment status of the Applicant. I find that the Respondent has standing to make the s.399A application.

[14] I would observe 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 1:

‘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.’ 2

[15] It is clear that the Applicant engaged Mr Dircks of Just Relations to represent him following his dismissal. This is evident from the F2 that was that filed by Mr Dircks on the Applicant’s behalf. Submissions and materials were also filed by Mr Dircks on the Applicant’s behalf on 17 September in respect of the extension of time issue, consistent with the directions issued by the Commission on 6 September 2021. Mr Dircks advised the Applicant on 6 October that he would no longer represent him. This withdrawal of representation was formally notified to the Commission on 12 October 2021.

[16] The Applicant may be rightly criticised for his failure to file his reply material in accordance with the directions. Moreover, he failed to notify the Commission in advance of the deadline for the filing of his material that he would be unable to comply with the directions despite the clear warning provided in the directions as to the potential implications of non-compliance. While the Applicant says in his defence that he had not checked the directions it was incumbent on him to be aware of his obligations, even more so at the point when Mr Dircks withdrew from representing him.

[17] The Applicant was on notice from on 6 October 2021 that Mr Dircks would no longer act on his behalf. This was some 12 days prior to the date that the Applicant’s reply material was due to be filed. While I accept the Applicant may have had difficulty securing a new representative, he was not prevented from notifying my Chambers of the difficulty he was experiencing and how that might impact on his compliance with the directions. Nor was he prevented from preparing the submissions and witness statements himself in response to the material filed by the Respondent. That he preferred to secure a new representative in the circumstances may be understandable. However, non-compliance with the directions through either ignorance or oversight without any communication with my Chambers has had the consequence of forcing the vacation of the 21 October 2021 hearing date at short notice.

[18] Notwithstanding the above, the Applicant’s omission was a singular one. It is noted that he partially complied with the initial directions by filing his material in relation to the extension of time issue. The failure to comply with directions in respect of his reply material was neither wilful or indicative of a pattern of non-compliance or unreasonable conduct. I accept that the oversight arose out of the Applicant having initially placed his faith in his former representative and that when that representative withdrew the Applicant turned his attention to securing fresh representation. While the Applicant’s oversight led to the vacating of the hearing set down for 21 October 2021, any delay is to the Applicant’s detriment and would not in my view prejudice the Respondent given that it has already filed its material. The omission in the circumstances does not rise to the level of being an unreasonable one.

[19] The Respondent refers to a previous case in support of its submission that the Applicant’s right to have his case heard is qualified by an obligation to prosecute his case 3. The circumstances of that case can be distinguished in that the applicant in that matter resisted conciliation attempts, demanded the matter proceed to arbitration and then failed to comply with both the initial dates for the filing of his material and a revised date that was granted by the Commission. The applicant in that matter then failed to address why his application for an unfair dismissal application should not be dismissed pursuant to s.399A and s.587 of the Act.

[20] The Respondent’s also contends that dismissal of the Applicant’s application for an unfair dismissal remedy pursuant to s.399A would be consistent with the Objects of Part 3-2 of the Act which in part requires a “fair go all round” to be accorded to both the employer and employee concerned. I would be more sympathetic to this submission if the Respondent could point to any prejudice it would suffer as a consequence of the Applicant’s omission. As stated above, the Respondent has already filed its material for the hearing that was listed for 21 October 2021.

[21] Having regard to the above I am not persuaded to exercise my discretion to dismiss the Applicant’s application for an unfair dismissal remedy pursuant to s.399A. To do so in the circumstances would be arbitrary and inappropriate given the nature of the omission. The complete extinguishment of the Applicant’s right to pursue his case would be a disproportionate response to the Applicant’s oversight. The s.399A application for dismissal of the Applicant’s application for an unfair dismissal remedy is consequently dismissed.

[22] The matter will now be relisted for hearing of the jurisdictional objections raised by the Respondent and the Applicant will be afforded a further seven (7) days within which to file material in reply to that filed by the Respondent. Directions will be shortly issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR735266>

 1   [2019] FWCFB 2925.

 2 Ibid at [31].

 3   Spence v URM Australia [202] FWC 3964.