Matthew Pooley v Prysmian Australia Pty Ltd

[2019] FWC 2695

[2019] FWC 2695

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 394 - Application for unfair dismissal remedy

Matthew Pooley

v

Prysmian Australia Pty Ltd

(U2018/12691)

Deputy President Sams SYDNEY, 26 APRIL 2019

Application for an unfair dismissal remedy – failure of applicant to attend proceedings or comply with directions of Fair Work Commission – application the same as an earlier application about the same dismissal – unlikely prospects of success – application dismissed for want of prosecution pursuant to s 399A and s 587 of the Act.

1. On 7 December 2018, Mr Matthew Pooley (the ‘applicant’) filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) in which he alleges he was unfairly dismissed by Prysmian Australia Pty Ltd (the ‘respondent’) on 8 December 2017. It will be immediately apparent that the application was filed 12 months after the applicant said he was unfairly dismissed by the same employer. Moreover, this is inconsistent with the applicant’s answer to Q1.4 in the Form F2, that he was making the application within 21 days of his dismissal. He claimed his dismissal was unfair because his position was not genuinely redundant and his ‘job [is] being done by other people’. He added ‘Fair Work not assisting in helping with the situation with phone calls and emails being ignored … I do not like being ignored by FWC’.

1. Aside from the applicant being required to make an application for an extension of time in which to lodge an ‘out of time’ application (s 394(2)(b) of the Act); it being 11 months outside the 21 day time limit set out in s 394(2)(a) of the Act, it is apparent from the file, that the applicant’s dismissal in 2017 was the subject of an earlier unfair dismissal application he lodged in late 2017, in Matter U2017/13932 (the ‘2017 application’). In that matter the same respondent objected to the application on the grounds his dismissal was a case of genuine redundancy and for which he was paid:

·  4 weeks’ pay in lieu of notice;

·  40.7 weeks’ redundancy pay;

·  17.05 weeks’ personal leave;

·  23.32 weeks’ annual leave; and

·  8.84 weeks’ long service leave.

1. The 2017 application was the subject of a telephone conciliation with a Commission Conciliator in early February 2018, at which time, terms of settlement were seemingly discussed and perhaps, agreed to. However, at that time, the applicant sought a ‘cooling off’ period (three days), but no further communication from him appears to have been made and the file was closed.

1. Many months passed until the applicant wrote to the Minister, The Honourable Kelly O’Dwyer, Minister for Jobs and Industrial Relations, on 3 October 2018, seeking assistance in having him reinstated. A member of the Commission’s staff spoke directly to the applicant on 9 October 2018, as a result of a request from the Minister’s Office. In a file note from the staff member it is recorded as follows:

‘Why did Matt not settle or proceed to arbitration?

Matt’s perspective on the settlement not finalised is because he would have given up ‘all rights to sue’ for ‘no particular benefit’ and he was worried that the former employer would not fulfil their side of settlement (a good reference.) Simultaneously a number of personal life and family issues came up for him.’

1. After the filing of the current application, two unsuccessful attempts at phoning the applicant was made on 11 December 2018 and 8 January 2019. On 11 January 2019, in a phone call to the applicant, he was informed that he could not have two applications about the same matter. He agreed to withdraw this application and seek to reopen the 2017 application U2017/13932. As neither of these steps were taken this current application was remitted to me for determination. In accordance with my usual practice, I listed the matter for a conference on 11 April 2019. As the applicant failed to attend and could not be contacted, I had cause to have my Associate send him the following email:

‘Dear Mr Pooley

I refer to the unfair dismissal application you filed on 7 December 2018. Our records indicate that on 11 January 2019, you spoke with a team member in Client Services and indicated that you intended to withdraw this application, but that you would send an email to confirm. To date, no further correspondence has been received from you despite several attempts to contact you. The application has now been allocated to Deputy President Sams for determination. On 3 April 2019, you were notified by email that the matter would be listed for a conference today (11 April 2019) at 2pm and were provided with dial in details. You did not attend the conference today and were not able to be contacted by telephone either.

Given the above circumstances, the Deputy President now directs you to provide an explanation for your non-attendance and your failure to advise the Commission that you would be unable to attend. The Deputy President directs you to provide a response by no later than 4pm tomorrow, 12 April 2019. If you do not comply with these directions, your unfair dismissal application may be dismissed for want of prosecution, without further recourse to you.

Further, the Deputy President notes that your unfair dismissal application appears to be the same application you filed on 26 December 2017 (U2017/13932 - Pooley, Matthew v Prysmian Australia Pty Ltd). Given this, his Honour is concerned that your application may have no reasonable prospects of success.’

1. There was no response from the applicant by the date specified above and no communication at all from him, as at the date of this decision.

1. Accordingly, I have determined to dismiss this application, pursuant to s 399A and s 587 of the Act. These are my reasons.

1. Section 577 of the Act sets out the general functions of powers of the Commission as follows:

‘577.      Performance of functions etc. by the FWC

The FWC must perform its functions and exercise its powers in a manner that:

(a)   is fair and just; and

(b)   is quick, informal and avoids unnecessary technicalities; and

(c)   is open and transparent; and

(d)  promotes harmonious and cooperative workplace relations.

Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).’

1. The Commission’s powers to dismiss an application are set out at s 587 of the Act and specifically in respect to unfair dismissal applications at s 399A. I set out both sections below:

‘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.

1. In Carter v The Hanna Group Pty Ltd[2011] FWA 31 – I dealt with the relevant authorities in matters such as this and the principles to be distilled from those authorities. At paras [3] to [6] I said:

‘[3] At this juncture, it is trite to observe that Courts and Tribunals must always adopt a cautious and careful examination of the facts and circumstances of a particular case when considering whether to dismiss a substantive application for want of prosecution by a defaulting party. In General Steel Industries Inc v Commissioner for Railways (NSW) and others (1964) 112 CLR 125, Barwick CJ held that the jurisdiction to terminate an action summarily, for want of a cause of action by the plaintiff, was to be sparingly employed and ought not be used, save where the lack of the cause of action was clearly demonstrated. At pages 128 and 129 his Honour said:

“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. The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “be manifest that to allow them” (the pleadings) “to stand would involve useless expense”.

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or “so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument”; “so to speak apparent at a glance”.

As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same.”

[4] Mason J in Kioa v West (1985) 49 CLR 550 at 582:

“It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.”

[5]In Australian Railways Union; Ex parte Public Transport Corporation (1993) 117 ALR 17, the High Court, in observing the powers conferred on the Australian Industrial Relations Commission, said at pages 23 and 24:

“But the wide scope given to the Commission in determining the relief which it will give does not absolve it from an obligation to observe the rules of procedural fairness in exercising its arbitral function. In Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd ((1989) 167 CLR 513 at p519) this Court pointed out that it was well settled that the Conciliation and Arbitration Commission was bound to act judicially and that the Commission, as its successor, is bound to do likewise. The Court went on to point out that one aspect of the duty to act judicially is the duty to hear a party and to allow him or her a reasonable opportunity to present his or her case and, coupled with that duty, is the duty to consider the case put. And in Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty. Ltd ((1993) 67 ALJR 389, at p390; 112 ALR 193, at p194) the Court said that the Commission has a duty in considering an application to afford a party a reasonable opportunity to allow his or her case to be put.”

[6] I glean from these judgements that the principles to be considered by Fair Work Australia (FWA) in circumstances where a defaulting party, whose application is being considered for peremptory dismissal as a result of a failure to attend proceedings may be summarised as follows:

(a) the defaulting party must be given an opportunity to explain the reasons why the Tribunal should not dismiss his/her claim for a failure to attend the proceedings;

(b) the reasons (if any are given) must be considered in the context of ensuring the proper administration of justice and fairness to both parties. In my view, this is particularly so in a s 394 unfair dismissal application, given the emphasis in the Act of ensuring ‘a fair go all round’ as referred to in s 381(2) of the Act. That section is expressed as follows:

‘(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.’

(c) the defaulting party should be made aware that an application to dismiss his/her substantive application is to be considered by the Tribunal;

(d) the defaulting party should be warned that a failure to attend the hearing of such an application, without a reasonable explanation, may result in the substantive application being dismissed; and

(e) the Tribunal should ensure that all reasonable steps are taken to give an absent party every opportunity to present themselves for hearing: See Grimshaw v Dunbar (1953) 1 All ER 350 at 355.

1. For completeness, I also refer to the decision of the Full Bench in Sayer v Melsteel Pty Ltd, [2011] FWAFB 7498, in an appeal where an applicant claimed he had been denied natural justice by not being given an opportunity to be heard. At paragraphs 8 – 9, the Full Bench said:

‘[8] When these events are looked at objectively it is clear that there has been no denial of natural justice. Whether he was too ill to attend the hearing on 7 July or not, it is highly unlikely that he was so incapacitated that he was unable to send a message of any kind. But there is no evidence that he took any action to alert anyone to the fact he would not be attending. Mr Sayer was given an adequate opportunity to be heard. While it was open to the Commissioner to adjourn the matter, either generally or subject to some conditions, his decision to decide the matter in the applicant’s absence was not affected by error.

[9] Mr Sayer also submitted that if he were to be permitted to run his case he would have succeeded. In light of our conclusion on the first ground of appeal it is not necessary that we deal with that submission. When an applicant does not take the opportunity provided to prosecute their application, the application will usually fail. It is difficult to envisage circumstances in which it could be otherwise.’ (my emphasis)

1. Applying the appropriate principles to this matter, I am satisfied that the applicant has been given an opportunity to be heard and he has failed to do so. Unfortunately, his lack of diligence in this respect is compounded by his failure to comply with the Commission’s directions and a failure to attend the Commission’s listed conference. He was aware of the possible consequences of not doing so.

1. In addition, given his failure to make any contact with the Commission explaining his non-attendance, his apparent indifference and non-compliance with the Commission’s directions, and his failure to follow through on withdrawing this application, which he had agreed to do, I do not consider the interests of justice would be served by taking any further steps to encourage him to pursue this application. The respondent has been put to some cost and inconvenience as a result of the filing of this matter and it is entitled to feel aggrieved.

1. Even absent findings under s 399A of the Act, I am satisfied that this application has no reasonable prospects of success for the following reasons:

(1)     The application is 11 months ‘out of time’, for which an extension of time must be granted. Given the circumstances, this would seem problematic, at best;

(2)     The application concerns the same dismissal for which an earlier application was filed and that matter has been closed; There may be an arguable case that the 2017 application was ‘settled’ in a ‘Masters v Cameron’ sense;

(3)     Both applications raise issues of whether the applicant’s dismissal in 2017 was a genuine redundancy. Even if the applicant was to overcome this objection, the likelihood of reinstatement, after such a passage of time would seem remote;

(4)     Compensation, as an alternate remedy would likely be nil, given the payments received by the applicant at the time: see [2] above; and

(5)     The Commission may be ‘functus officio’ in respect to the present application.

1. In conclusion, the Act’s unfair dismissal regime in Part 3-4, is underpinned by the principle set out in a s 381(2) of a ‘fair go all round’. Applying that principle, compels only one conclusion in this matter. It must be dismissed. An order to that effect will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

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