Martin Kowalczyk v Randstad Pty Limited
[2023] FWC 2976
•21 NOVEMBER 2023
| [2023] FWC 2976 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Martin Kowalczyk
v
Randstad Pty Limited
(U2023/7384)
| COMMISSIONER JOHNS | MELBOURNE, 21 NOVEMBER 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 Randstad Pty Limited (the Employer) to dismiss an unfair dismissal application brought against it by Mr Martin Kowalczyk (the Applicant).
For the reasons that follow, the Employer’s application under s.399A is granted and the Applicant’s application for an unfair dismissal remedy is dismissed.
Procedural Context
On 9 August 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 23 August 2023, the Employer filed its response. It raised the jurisdictional objection that the Applicant was not dismissed.
The Commission listed the matter for a staff conciliation on 12 September 2023. However, it was adjourned at the request of the Applicant on the ground that he was unwell.
On 3 October 2023, the Commission attempted to conduct a conciliation conference but the Applicant could not be contacted despite several attempts to his nominated telephone number. In light of the same, the Employer noted that it is not interested in a further conciliation conference and requested that the matter be allocated to a Member of the Commission.
On 4 October 2023, the application was allocated to my Chambers.
On 5 October 2023, I listed the matter for a mention/directions hearing on 12 October 2023.
On 12 October 2023, neither party attended the mention/directions hearing. The Applicant advised my Chambers 10 minutes after the scheduled start time via email that it cannot attend due to an injury. The Employer also contacted my Chambers and apologised for the non-attendance. In the interest of furthering the matter, I issued directions timetabling the filing of materials and set the matter down for determination (Directions).
On 18 October 2023, the parties advised my Chambers via an email that they are jointly seeking a conciliation.
On 23 October 2023, Commissioner Tran conducted a Member Assisted Conciliation (MAC). The MAC was unsuccessful. However, the Applicant noted that he may be discontinuing the matter but would like to seek some advice first. The Applicant was advised that the Commission will contact him on 6 November 2023 to confirm whether he still wishes to pursue his application or not. The Directions remained unimpacted.
In line with the Directions, the Employer filed its material first on 26 October 2023.
On 6 November 2023, the Commission contacted the Applicant via his nominated telephone number. The Applicant requested a call back in the afternoon. The Commission contacted the Applicant on two (2) separate occasions in the afternoon and left a voice mail requesting a call back with no success.
On 8 November 2023, the Applicant was contacted again via his nominated telephone number to no avail. In light of the same, an email was sent reminding the Applicant that his material is due by 9 November 2023. The Applicant did not file any material as per the Directions.
On 10 November 2023, a further email was sent out directing the Applicant to file his material by 4pm on the same day. He did not do so.
On 14 November 2023, the Employer filed a form F1 seeking the dismissal of the application pursuant to s.399A(1)(b) of the FW Act. The Employer submitted that the Applicant has failed to demonstrate a genuine interest in prosecuting his application.
On 14 November 2023, my Chambers sent a letter to the nominated email addresses of the Applicant and the Employer noting the filing of the s.399A application and served the relevant form. The Applicant was afforded until 4pm on 20 November 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 would be dismissed.
On 20 November 2023 at 12:18pm, the Applicant replied to the Employer’s email attaching the form F1 stating as follows:
Good Afternoon Tracey, I would like to obtain the exact email correspondents that was sent to my Site Manager Tom from the Centre Manager Sandra Riddle on my last day at VicRoads along with any incident reports that Tom said I had complaints from customers. I would also like to find out why Tom did not put me on a performance plan when these issues were happening.
The Applicant’s email evidently did not provide any reasons for non-compliance as directed. The Applicant was sent an email at 3:14pm on the same day reminding him that he must provide his reasons for non-compliance. At 4:27pm the Applicant advised:
I still haven't received the correct documentation which I have requested at our recent meeting.
In the ensuing hours, there were a further three (3) email exchanges between the Applicant and the Employer. The chain of email confirmed that the Employer did provide the Applicant with the requested information on 26 October 2023, but the Applicant submitted on 20 November 2023 that ‘certain key details’ were missing without any specificity.
The Applicant did not provide any other 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. In light of the email exchanges between the Applicant and the Employer, and no issues being in dispute, steps four and five were not enlivened.
I must now determine the s.399A application before me.
The Applicant only relies on the reason that he was not provided with all the requested information following the MAC. As outlined above, the Employer did in fact provide some information on 26 October 2023. However, the Applicant did not raise any issues with the content of that response until 20 November 2023, despite being fully conscious of his obligation to file material as per the Directions.
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 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 Employer’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 [PR768260].
COMMISSIONER
[1] [2021] FWCFB 875, [30] & [57] – [58].
[2] [2021] FWC 6213, [20] – [22].
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