Michael Haynes v Njamal Heritage Pty Ltd

[2021] FWC 5397

[2021] FWC 5397

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Haynes
v
Njamal Heritage Pty Ltd
(U2021/5353)

DEPUTY PRESIDENT BEAUMONT PERTH, 3 SEPTEMBER 2021

Application for an unfair dismissal remedy – s 399A Application to dismiss – Applicant non-compliant with directions.

[1] On 18 June 2021, Mr Michael Haynes (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 Njamal Heritage Pty Ltd (the Respondent). Directions were issued for the filing of documentary materials. The Applicant did not comply with those directions and failed to appear at the listed conference. Consequently, the Commission considered whether to dismiss the unfair dismissal application on its own initiative (see s 587) and the Respondent similarly sought to have the unfair dismissal application dismissed under s 399A of the Act.

[2] On 17 August 2021, I declined to dismiss the Applicant’s unfair dismissal application for non-compliance with the directions and for failing to attend a conference (First Decision). 1 That First Decision set out, amongst other things, that the Applicant was obliged to comply with the directions of this Commission.

[3] Issued concurrently with the First Decision, or some 8 minutes after, were the amended directions, which required the Applicant to file his materials relating to the merits of the unfair dismissal application. The Applicant was non-compliant with those directions of 17 August 2021. In response, the Respondent filed an application to have the unfair dismissal application dismissed under s 399A of the Act.

[4] Section 399A provides for the dismissal of an unfair dismissal application in circumstances where an applicant has failed to comply with a direction or order of the Commission relating to the application. 2 Whilst I declined to dismiss the unfair dismissal application in the First Decision, I am not so inclined on this occasion. The Applicant has now engaged in repeated non-compliance with the directions of the Commission, notwithstanding ample opportunity for the Applicant to submit the requisite materials to prosecute his case.

[5] For the reasons that follow I have decided to dismiss the Applicant’s unfair dismissal application.

1 Background

[6] It is useful to summarise the chronology of events which have led to the further application under s 399A of the Act. While the background 3 to the first application under s 399A has not been repeated, it is adopted for the purpose of this decision.

[7] The Applicant was required to file his materials relating to the merits of the unfair dismissal application by no later than 4.00pm on 23 August 2021. He did not do so.

[8] On 23 August 2021, Chambers sent an email to the parties noting that no correspondence had been received from the Applicant requesting an extension of time in which to file his materials, or an explanation of the reasons for his non-compliance with the directions of 17 August 2021. The Applicant was directed to file, by email, the reasons why he had not yet submitted his materials by 12.00pm on 24 August 2021. The Applicant did not comply with the direction of 23 August 2021.

[9] On 24 August 2021 at 8.42am, Chambers attempted to contact the Applicant by telephone to no avail. However, the Applicant contacted Chambers by telephone at 8.50am on that same day explaining that he had not checked his emails for a few days. It was outlined to the Applicant that he had been due to file the materials for the unfair dismissal hearing on 23 August 2021, and that on 23 August 2021 he had been directed to explain his non-compliance with the directions of 17 August 2021. The Applicant informed Chambers that he would respond to the email of 23 August 2021, ‘shortly’.

[10] On 24 August 2021, the Respondent made an application for the unfair dismissal application to be dismissed under s 399A, on the basis that there had been unreasonable and ongoing failures to comply with the directions.

[11] On 25 August 2021, Chambers sent to the parties an email with accompanying directions regarding the application to dismiss the unfair dismissal application under s 399A of the Act. Amongst other matters the email set out that Chambers had not received:

(a) the Applicant’s materials for the merits hearing in compliance with the directions of 17 August 2021;

(b) any correspondence requesting an extension of time to file materials for the substantive application (merits hearing); and

(c) reasons for the Applicant’s non-compliance with the directions of 17 August 2021.

[12] The Applicant was directed in the email dated 25 August 2021, to file materials relating to the dismissal of the unfair dismissal application by 27 August 2021.

[13] By email dated 25 August 2021, time stamped 11:22AM, the Applicant wrote:

…

Thank you for the call yesterday where we discussed an extension regarding this matter.

I am pleased deputy president Beaumont has granted me time to put my case together. I will be able to send the information this weekend. I believe I have a very strong case for unfair dismissal. Yours truly, James M Haynes.

[14] The Applicant sent a further email to Chambers dated 25 August 2021, time stamped 11:24AM, in which he wrote:

Thank you… for you call yesterday.

I will get the documents to you this weekend.

Yours truly,

JMH.

[15] On 25 August 2021 at 1:52pm, Chambers sent an email to both parties notifying the Applicant that the deadline to file his materials in relation to the unfair dismissal application had passed and an extension of time had not been granted. The remainder of the email reads:

To again emphasise, an extension of time has not been granted to you.

What was discussed with you in the telephone call was the requirement to provide in writing the reasons as to why you had failed to comply with the directions and, if you were seeking additional time to file your materials regarding your unfair dismissal application, you would need to make that request in writing and provide reasons why it should be granted.

The Respondent has now applied under s 399A of the Act for your unfair dismissal application to be dismissed because you have not complied with the directions that were issued on Tuesday, 17 August 2021.

It follows that the Deputy President will now determine whether to dismiss your application because of your failure to comply with the directions of Tuesday, 17 August 2021.

To that end, the New Directions address whether your unfair dismissal application should be dismissed because of non-compliance.

[16] By email dated 25 August 2021, time stamped 1:56PM, the Applicant wrote:

As discussed with you on the phone I could not access any emails so I was unaware of any developments. I am using the community library service to email and it was not available for some time.

Yours truly, James M Haynes.

[17] On 25 August 2021 at 2:22pm, Chambers thanked the Applicant for his email and directed that the ‘New Directions’ stand, and therefore, it was important to comply with the ‘New Directions’.

[18] On 30 August 2021 at 1.17pm, Chambers informed the parties that no further correspondence from the Applicant had been received in relation to his unfair dismissal application or the application to dismiss his unfair dismissal application. The Applicant was directed to file, by email, reasons why he had not filed his materials by no later than 31 August 2021. No information was forthcoming.

[19] As there was no objection by the parties, I considered it appropriate to determine the matter on the papers.

2 Non-compliance with directions and non-attendance at the conference

[20] There have now been multiple occasions where the Applicant has not filed material as directed. The Applicant has failed to comply with the directions of 17 August 2021, 23 August 2021, 25 August 2021, and 31 August 2021.

3 The Respondent’s application under s 399A

[21] 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.

[22] The consideration of whether to dismiss an unfair dismissal application pursuant to s 399A(1)(b) of the Act involves a two-stage process. 4 First, the Commission must be satisfied that the applicant unreasonably failed to comply with a direction or order.5 The decision-maker must make a broad value judgment as to whether the relevant failure was unreasonable in the circumstances.6 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 paragraph (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.

[23] The following points are relevant considerations in determining whether the Commission should exercise its discretion in this case:

a) the power to dismiss an unfair dismissal application under s 399A of the Act, is one that should only be exercised ‘cautiously and sparingly’. 7 It is also well recognised that a Commission member’s discretion under s 399A of the Act is broad and should not be unnecessarily fettered or constrained;8

b) there is no requirement that there be ‘repeated’ non-compliance with a direction. The Commission must simply be satisfied that the failure to comply was ‘unreasonable’. 9 However, repeated instances of non-compliance may support a finding of unreasonableness, as this indicates an inability or unwillingness to progress the matter to hearing;10

c) where an applicant has been provided ‘with clear direction on what was required, the resources available and the timeframe in which materials were to be filed’, this may also be a matter that indicates that her or his non-compliance was unreasonable. 11 Conversely, non-compliance may not be unreasonable if the applicant was genuinely ‘confused’ as to what was expected of them in complying with the Commission’s directions;12 and

d) in deciding whether to exercise its power under s 399A, the Commission will be guided by the overarching principle that a ‘fair go all round’ should be provided to all parties, including employers. 13

[24] Referring to the abovementioned points, the Respondent pressed that the Applicant had demonstrated repeated non-compliance in almost identical circumstances that gave rise to the First Decision. The Respondent submitted that the Applicant’s explanation that he was not able to access his email and so was unaware of developments was not satisfactory and as such the Applicant had demonstrated an inability or unwillingness to progress the matter to hearing. It was the Respondent’s view that the Applicant’s repeated non-compliance and attitude, meant that the Commission could have no confidence that the Applicant would prepare his materials as directed, even if a further extension was sought and granted.

[25] The Respondent submitted that in circumstances where the directions were clear in relation to the First Decision and in relation to the directions that had subsequently followed, and the directions had included reference to the resources available to the Applicant, this weighed in favour of dismissing the unfair dismissal application.

[26] In relation to any contention that the Applicant was confused about the directions, the Respondent emphasised that the Applicant had indicated by email on 24 August 2021 that he would explain, via email, his non-compliance, further, he was able to reply rapidly to emails from Chambers on 25 August 2021, and that a requirement to explain the non-compliance only arose because of the Applicant’s own conduct.

3.1 Consideration

[27] To date, the Applicant has not complied with multiple directions of this Commission.

[28] The obligation of all applicants is to prosecute their case in an efficient manner. In doing so all parties must comply with directions set by the Commission for this purpose. Alternatively, as was said in Lopez Aragon v Aegis Safety Pty Ltd, 14 an applicant needs to clearly establish impediments to filing materials in order that a timely extension can potentially be set. The inclusion of s 399A of the Act clarifies this position that the conduct of parties in running their case before the Commission is important. Parties are accountable for the way in which they run their case or respond to an application.15

[29] Whilst an applicant is entitled to have her or his case heard and it is only in extreme circumstances that a party should be shut out from litigating an issue that is fairly arguable, I am satisfied that in all the circumstances the Commission should extinguish the Applicant’s right to have his application heard.

[30] The Applicant’s persistent non-compliance with the directions of this Commission now manifests an undeniable reticence to do the work necessary to prosecute his case. The Applicant’s case is no longer fairly arguable for the simple reason he has not articulated it, notwithstanding multiple chances to do so. While there is of course an understanding that some litigants will be challenged by a lack of access to technology that may impede their ability to comply with directions, the Applicant has, when he so desires, communicated with Chambers readily by email.

[31] The matter has been unnecessarily delayed by the Applicant’s approach to his application and as a consequence the Respondent is being placed in a position where its resources are being unnecessarily depleted. While a ‘fair go’ has been afforded to the Applicant, to allow this unfair dismissal application to remain on foot would be to deny the Respondent of the same.

4 Conclusion

[32] In circumstances where the Applicant has provided no plausible excuse for non-compliance with the directions, has been directed to various resources, and was informed of the importance of complying with directions, I have concluded, on balance, that the Applicant has unreasonably failed to comply with directions of this Commission relating to his unfair dismissal application and the application under s 399A of the Act.

[33] I am therefore persuaded to exercise my discretion under s 399A and dismiss the Applicant’s unfair dismissal application.

[34] An Order 16 giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Hearing details:

On the papers.

Printed by authority of the Commonwealth Government Printer

<PR733359>

 1   Michael Haynes Njamal Heritage Pty Ltd [2021] FWC 4908.

 2   Fair Work Act 2009 (Cth), s 399A(1)(b).

 3   Lawes v Recochem Inc [2020] FWC 5662 [3]-[5].

 5  Robin Hansen v Calvary Health Care Adelaide Limited[2016] FWCFB 5223

 6  .Coal and Allied v AIRC (2000) 203 CLR 194 [19]

 7  .Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925 [31]-[37].

 8 Ibid [37].

 9   Zada v WorkPac Pty Ltd[2019] FWC 7292 [22]

 10  Munn v The Grout Guy Pty Ltd as trustee for the Young Enterprises Trust T/A The Grout Guy[2019] FWC 3772 [28]

 11  Zada [20]

 12  Roy Hill [43].

 13   Recochem Inc [19]; Raschilla v Ausino West Pty Ltd ATF The Supercrane Unit Trust T/A Supercrane Engineered Lifting Technology [2017] FWCFB 5952 [12].

 14   [2013] FWC 5993 [39].

 15   Lopez Aragon v Aegis Safety Pty Ltd[2013] FWC 5993 [39].

 16   PR733522