Michael Cox v Mt Cotton Constructions Pty Ltd

[2015] FWC 7935

[2015] FWC 7935

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Cox
v
Mt Cotton Constructions Pty Ltd
(U2015/10769)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 19 NOVEMBER 2015

Application for relief from unfair dismissal.

[1] Mr Michael Cox alleged that the termination of his employment by Mt Cotton Constructions Pty Ltd was unfair.

[2] On 4 September 2015, directions were issued to Mr Cox to file material in support of his application. That material was due on 28 September 2015. Unfortunately the directions were not sent to Mr Cox’s correct email address.

[3] On 29 September 2015 the Fair Work Commission called Mr Cox’s representative advising that his submissions were overdue. On the same day an email was sent to Mr Cox regarding his overdue submissions and advising that the matter would be referred to a noncompliance hearing. Again this was not sent to Mr Cox’s correct email address. A notice of listing was sent advising of the noncompliance hearing the same day. Again this was not sent to Mr Cox’s correct email address.

[4] On 30 September 2015 the Commission called Mr Cox twice and left messages asking him to call the Commission urgently.

[5] Mr Cox did not attend the noncompliance hearing and Commissioner Johns accepted an oral s.399A application to dismiss the matter for noncompliance with the directions.

[6] A letter was sent to Mr Cox by email and by post on 1 October 2015 advising him of the application to dismiss and giving him until 8 October 2015 to respond. Again this was not sent to Mr Cox’s correct email address.

[7] On 13 October 2015, Mr Cox contacted the Commission and advised that he had just received the s.399A letter. He advised that the email address used by the Commission was incorrect as the Commission had not used the email address provided in his application form as it had not included the .au at the end of the address. He advised that he had not received the emails sent by the Commission. He was unaware that his representative had ceased acting for him.

[8] On 14 October 2015, Mr Cox sent an email confirming the information provided by phone and sought an extension of a week to prepare his response. Mt Cotton opposed Mr Cox being granted an extension of time to lodge his response because its emails to Mr Cox had been delivered; it had made itself available and co-operated fully to see the matter through; the Commission had attempted to contact Mr Cox who had not responded; it did not accept that the mail had taken 12 days to be delivered; and Mr Cox was only pursuing his claim because another ex-employee had reached a settlement.

[9] On 21 October 2015, Mr Cox sought a further adjournment as he was having difficulty obtaining legal advice.

[10] On 28 October 2015, Mr Cox was given until 4 November 2015 to file in opposition to the application to dismiss and he filed in accordance with that direction.

[11] In addition to the information already provided, Mr Cox gave evidence that he did not think the hearing would be for some months and therefore he did not think it was a problem that he had not heard from the Commission.

[12] At the hearing of the matter on 17 November 2015, I granted permission for Mt Cotton to be represented by a legal practitioner.

[13] At the hearing Mr Cox’s evidence that he did not receive the s.399A letter from the Commission until 13 October 2015 was not challenged. Mr Cox could not explain why he did not receive the telephone messages left by the Commission on 30 September 2015. He said the phone number was his private phone number and he generally used his work phone. However he said he checked his private phone and could not explain why the messages were not received.

[14] Mt Cotton submitted that the application should be dismissed because it was entitled to finality in this matter and Mr Cox’s explanation was not satisfactory.

Consideration

[15] On application by an employer, the Commission has the discretion to dismiss an unfair dismissal application because there has been unreasonable noncompliance with directions of the Commission. 1

[16] The Explanatory Memorandum said that the intention of this provision was “to address the small proportion of applicants who may pursue claims in an improper and unreasonable manner. . . . 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.” 2

[17] The role of case management was discussed by the Full Bench in Ghalloub v Aon Risk Services Australia Limited 3.

[18] In summary that decision said:

● the starting point of any consideration an application to dismiss is that an applicant is entitled to have his or her case heard;

● directions play an important role in case management;

● accepting the importance of case management principles, only in extreme circumstances should a party be shut out from litigating an issue which is fairly arguable;

● the circumstances of each case is central;

● a history of noncompliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period of time is relevant;

● continuing noncompliance which causes unnecessary delay, expense or prejudice to the other party is relevant.

[19] While not an exhaustive list of matters that may be considered, I will adopt the approach of the Full Bench in this matter.

Consideration

[20] I am satisfied that the reason Mr Cox did not comply with directions of the Commission was because the directions were not sent to the correct email address by the Commission. After this date Mr Cox remained in contact with the Commission and sought extensions of time to comply with the directions in relation to the s.399A application.

[21] An application may not be dismissed under s.399A unless the noncompliance was unreasonable. I am satisfied that Mr Cox’s explanation is reasonable and it was accepted as such by Mt Cotton. While I accept that Mt Cotton is entitled to finality the error was the Commission’s not Mr Cox and he should not be prevented from having his case heard because of that error.

[22] Mt Cotton’s application to dismiss Mr Cox’s application is therefore dismissed. An order to dismiss the s.399A application will be issued with this Decision.

[23] Directions will be issued for the parties to file material.

DEPUTY PRESIDENT

Appearances:

M Cox on his own behalf.

K Williamson on behalf of the Respondent.

Hearing details:

2015.

Telephone hearing;

November 17.

 1 Section 399A of the Fair Work Act 2009.

 2   Explanatory Memorandum to the Fair Work Amendment Bill 2012 at paras [161-163].

 3   PR956665.

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