Michael Haynes v Njamal Heritage Pty Ltd
[2021] FWC 4908
•17 AUGUST 2021
| [2021] FWC 4908 |
| 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, 17 AUGUST 2021 |
Application for an unfair dismissal remedy – s 587.
[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).
[2] However, having not presented on time for a listed conference and thereafter failing to comply with directions, the Commission on its own initiative considered whether to dismiss the Applicant’s unfair dismissal application under s 587(1)(c) of the Act. Once the Commission had indicated this course, the Respondent made an application under ss 399A(1) (a) and (b) of the Act to dismiss the application.
[3] For the reasons, that follow I have decided not to dismiss the Applicant’s unfair dismissal application at this time. I consider that the Applicant should be afforded one more opportunity to file his material for his substantive application. However, given that the matter is listed and scheduled to be heard on 2 September 2021, the amended directions will reflect that limited timeframe. The Applicant should proceed knowing that he is obliged to comply with the directions of this Commission and to attend hearings or conferences precisely on time. He is to submit his materials as a matter of urgency.
[4] A notice of listing for both a conference and hearing will be issued concurrently with this decision in addition to amended directions for the filing of the materials by both Applicant and Respondent.
1 Background
[5] A conference was listed for the matter on 27 July 2021 at 10.00am. The Applicant did not attend the conference at 10.00am and gave no forewarning that he would be absent, late or simply unavailable at that time.
[6] However, the Applicant was said to have called Chambers at 10.02am and 10.09am on 27 July 2021.
[7] It is observed in the Fair Work Commission’s Case Management System records that an email and a telephone call were received from the Applicant on 27 July 2021. The email at 10.06am and the phone call at 10.09am. The Associate’s entry into the Case Management System reads for the 10.09am entry:
PC from the Applicant – Applicant stated that he missed the five calls and was calling back. I stated that the conference was listed to start at 10am today. I stated that Chambers will be [sic] send the parties an email shortly.
[8] Having spoken to my Associate on the second telephone call, the Applicant was informed that an email would be sent later that day directing him to file submissions on why he did not attend the listed conference on 27 July 2021.
[9] As advised, those directions were issued later in the day on 27 July 2021 at 11.38am. The Applicant was directed to file submissions on why he had not attended the conference by 5.00pm the following day - 28 July 2021.
[10] No submissions were received by 28 July 2021 and come 30 July 2021 directions were issued concerning the filing of materials for consideration of whether the unfair dismissal application should be dismissed pursuant to s 587 of the Act.
[11] On 2 August 2021, the Applicant emailed Chambers explaining his non-attendance at the conference noting that:
I didn’t realise I had to explain my non-attendance by the 28th July. I was out of range and made it into range just as you was ringing, so I just missed the call. This was not explained.
I called you at 10:02 and again at 10:09 on 27th July.
I understand the odds are against me on this. I also now the truth about what has transpired over a long period of time. And the context in which all this has operated. I do not have the energy to continue to fight the trustee of my peoples trust. I have come to terms with the way I was treated and have found solace in forgives. If you need any evidence from me regarding what sort of people you are dealing with please refer to the attached report. This might give you some perspective.
[12] In light of the Applicant’s email dated 2 August 2021, Chambers sought clarification as to whether the Applicant wanted to continue with his application. An email was sent on 2 August 2021 at 12.57pm and by 4.46pm that same day the Applicant confirmed that he wished to continue.
[13] The directions of 30 July 2021 were therefore re-sent on 3 August 2021 at 9.47am, with the reminder that the Applicant, in accordance with the directions that had been issued on 30 July 2021, was required to file his materials concerning the potential dismissal of his unfair dismissal application by 4.00pm on 3 August 2021.
[14] On 3 August 2021 at 11.53am, the Applicant responded by email apologising for his inability to do what was requested, asking what he was to do.
[15] On 3 August 2021 at 12.07pm, Chambers sent an email to the Applicant setting out further directions as to what was required of the Applicant. Namely, to file any material as to why his application should not be dismissed.
[16] On 3 August 2021 at 12.28pm, the Applicant replied by email asserting that he was sacked for no good reason, he did not feel capable of defending his position and noting, amongst other matters, that all that was needed as evidence was the report that the Applicant had sent to Chambers. No further materials were provided by the Applicant regarding the consideration of the dismissal of his application under ss 587 and 399A of the Act.
[17] It is further observed that the Applicant did not comply with the directions of 19 July 2021 regarding the filing of materials concerning his unfair dismissal application by 2 August 2021.
[18] At the request of the Applicant, a hearing was listed to address the issue of whether the Applicant’s unfair dismissal application should be dismissed.
[19] The Respondent relied on its written submissions, noting that it had also sought to have the unfair dismissal application dismissed under s 399A of the Act.
[20] The Applicant submitted that his application was about justice and that at the time of the conference on 27 July 2021 he was just out of ‘range’, presumedly with his mobile phone, and when he had made it back into range with his mobile phone, he called the Associate. The Applicant explained that he knew what had happened in the Respondent business, he was not supported by the leader and the survey and heritage business of the Respondent had been undermined.
2 Non-compliance with directions and non-attendance at the conference
[21] There have been two occasions where the Applicant has not filed material as directed.
[22] The first, when Chambers issued directions on 27 July 2021, directing the Applicant to provide written explanation why he was not in attendance at the conference on 27 July 2021. The second, concerning the directions issued on 19 July 2021, regarding the filing of materials for the unfair dismissal application.
[23] While the Applicant corresponded with Chambers on 2 August 2021, the correspondence did not attach the requisite documentation in compliance with the directions of 19 July 2021 or those of 27 July 2021.
3 The Respondent’s application under s 399A
[24] 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.
[25] The consideration of whether to dismiss an unfair dismissal application pursuant to s 399A(1)(b) of the Act involves a two-stage process. 1 First, the Commission must be satisfied that the applicant unreasonably failed to comply with a direction or order.2 The decision-maker must make a broad value judgment as to whether the relevant failure was unreasonable in the circumstances.3 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.
[26] 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’. 4 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;5
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’. 6 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;7
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. 8 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;9 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. 10
[27] Referring to the abovementioned points, the Respondent pressed that the Commission should be satisfied that the Applicant’s failure to attend a conference and non-compliance was unreasonable in the circumstances, for the following reasons:
a) the Applicant was aware the conference was scheduled to occur yet failed to ensure that he was available. He further failed to provide reasons for his non-attendance at the conciliation by the set deadline despite being informed via telephone by Chambers of the requirement for him to do so;
b) the parties were made aware on 19 July 2021 that compliance with the Commission’s directions was essential and that there may be adverse consequences should a party fail to comply. Parties were reminded on 19 July 2021 of ss 399A and 587 of the Act;
c) the Applicant was repeatedly reminded that compliance with directions was essential; and
d) the Applicant failed to provide an adequate explanation for his non-compliance.
3.1 Consideration
[28] To date, the Applicant has not complied with two sets of directions and has failed to attend a conference listed for 27 July 2021. However, for the reasons that follow, I am not satisfied that his unfair dismissal application should be dismissed under s 399A of the Act.
[29] The matter was listed for conference on 27 July 2021 at 10.00am. The Client Management System of the Commission shows that telephone calls were placed with the Applicant at 9.55am, 9.56am, 9.57am, 9.59am and 10.00am. Except for the one phone call at 10.00am, Chambers made no further phone calls to the Applicant post 10.00am. At 10.06am, according to Chambers, the Applicant emailed Chambers, the email purported to read ‘Hi… is someone going to callme this morning’. Thereafter at 10.09am the Applicant called Chambers.
[30] The Applicant contends that he called Chambers at 10.02am and again at 10.09am on 27 January 2021. Evidently there is a dispute about when the first phone call was made. Nevertheless, based on the materials before me, I am satisfied that the Applicant contacted Chambers by email at 10.06 am and thereafter contacted Chambers by telephone at 10.09am. In short, the Applicant was 6 minutes late for a conference and now faces the dismissal of his application because of the events that thereafter transpired.
[31] There is no doubt that the Applicant did not file written submissions to explain his non-attendance at the conference on 27 July 2021 within the requisite period. By 30 July 2021, the Applicant had still not filed submissions in compliance with the directions of 27 July 2021. Parties were informed on Friday, 30 July 2021 that the Commission would now consider the dismissal of the application and directions were issued. The Applicant was responsive to these directions emailing Chambers on the following Monday (2 August 2021), noting that he did not realise he had to explain his non-attendance by the 28 July 2021; he expressed:
I didn’t release I had to explain my non-attendance by the 28th July. I was out of range and made it into range just as you was ringing, so I just missed the call. This was not explained. I called you at 10:02 and again at 10:09 on the 27th July.
[32] I do not believe that the Applicant was being disingenuous but was candidly expressing his confusion about the direction to explain his absence at the conference on 27 July 2021.
[33] The Applicant was due to file his materials on why his unfair dismissal application should not be dismissed by 3 August 2021. At 12.28pm on 3 August 2021, an email was received by the Applicant which spoke to the injustice of the termination of his employment and noted:
I have no lawyer helping me, I am along up against the people who have money and power. I have the community, that’s my powers. Im sorry… I don’t feel capable to defend my position, I accept what is and endeavour to change my peoples future away from the greedy and corrupt grasps… I had held the view somehow that Fairwork Australia would be able to assist the downtrodden, I stand corrected on this. Its process driven without any regard for the human aspect.
Thanks for your time and I urge you to read the report I sent you, Its all the evidence you need.
[34] The Respondent submitted that that Applicant’s sole reason for his non-compliance is that he is not legally represented and there is an imbalance of resources and power. The Respondent observed that whilst that was unfortunate, the Commission has held that such hardships were not exceptional and that ‘… most Applicants who are appearing before the Commission… will have difficulties with their financial responsibilities’ and ‘… will also not be trained lawyers or have industrial relations expertise’. 11
[35] 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, 12 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.13
[36] However, the role of case management was discussed by the Full Bench of the Australian Industrial Relations Commission in Ghalloub v Aon Risk Services Australia Limited. 14 In summary, that decision outlined certain principles, including that the starting point is that an applicant is entitled to have his or her case heard and that only in extreme circumstances should a party be shut out from litigating an issue that is fairly arguable.
[37] I am not satisfied that this Commission should extinguish the Applicant’s right to have his application heard. The Applicant made attempts to attend the conference on 27 July 2021, albeit he was 6 minutes late. Further, I am satisfied that on any objective basis he had provided explanation for his non-attendance at the scheduled time of 10.00am, although that reason was not initially in written form or submission in accordance with the direction issued on 27 July 2021. I am persuaded by the Applicant’s explanation that he did not understand that he was required to do so, having thought he had already explained the non-attendance.
[38] In my view, the Applicant has not unreasonably failed to attend the conference of 27 July 2021 or comply with the directions of that same date.
[39] While the Applicant has not complied with the directions of 19 July 2021, which required him to have filed his materials concerning his unfair dismissal application by 2 August 2021, I note that no reminder was issued by Chambers concerning such compliance, and the Applicant was not placed on notice that he faced the dismissal of his unfair dismissal application for failing to comply with the directions of 19 July 2021 in this respect.
[40] The Applicant’s correspondence with Chambers and attendance at the hearing on 11 August 2021 does not speak of an inability or an unwillingness to have the unfair dismissal application heard within an acceptable period.
[41] Because I am not satisfied that the Applicant unreasonably failed to comply with a direction or order, or to attend a conference, 15 it proves unnecessary to consider whether to exercise discretion to dismiss the unfair dismissal application.
[42] However, I also observe the following. The object of Part 3-4 requires me to ensure that a ‘fair go all around’ is accorded to the employee and the employer. In the circumstances of this case, I do not consider that a ‘fair go all around’ would be afforded where the issue which initially gave rise to consideration of the dismissal of the Applicant’s unfair dismissal application initially arose from the Applicant being 6 minutes late for a conference.
4 No reasonable prospects of success – s 587(1)(c) of the Act.
[43] The Commission is empowered to dismiss an unfair dismissal application on the basis that the application has no reasonable prospects of success. These powers to dismiss an application, are set out generally at s 587 of the Act. That section states:
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.
[44] Whenever exercising the power to dismiss an application under s 587, s 578 is relevant. It provides:
578 Matters the FWC must take into account in performing functions etc.
In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
[45] It is accepted that there is no legislative or common law requirement, pursuant to which the Commission must persevere with an application, in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at her or his initiative. 16
[46] Of course, as noted, in these types of applications, one is always guided by the premise that the power to dismiss a substantive application should only be exercised cautiously and sparingly; particularly where, as here, the Applicant has sought orders for relief for his alleged unfair dismissal. 17
4.1 Consideration
[47] In light of my findings concerning s399A(1)(a) and(b) of the Act and because of the following reasons, this Commission will not dismiss the unfair dismissal application under s 587(1)(c) of the Act.
[48] The Applicant is appreciably upset by the loss of his job and has spoken of his depression. His disappointment and frustration with the process he is now embarking upon is evident in his communications to Chambers and at times it appears that the Applicant is bordering on resigning himself to the situation he finds himself in such that he no longer wishes to press his application. However, when asked directly as to whether he wishes to continue with his unfair dismissal application he has replied in the affirmative and has also complied with the direction of 30 July 2021 and presented for a hearing on whether his application should be dismissed.
[49] Having regard to the circumstances of this matter, I am not satisfied that the application has no reasonable prospects of success and it is not the case that the Applicant’s conduct shows an unwillingness to participate in the proceedings.
5 Conclusion
[50] In these circumstances, I have concluded, on balance, that the Applicant has not unreasonably failed to comply with directions of this Commission relating to his application or failed to attend a conference.
[51] I am therefore not prepared at this time to exercise discretion to dismiss the Applicant’s unfair dismissal application under s 587(1)(c) of the Act or ss 399A (1)(a) or (b). While I appreciate the Respondent’s frustration in relation to this matter, it of course has its rights under the Act to apply for costs both against the Applicant if an unreasonable act or omission in connection with the conduct of the matter has caused it to incur costs.
DEPUTY PRESIDENT
Appearances:
Mr. Michael Haynes, the Applicant;
Mr. James Catchpole, for the Respondent;
Mr. Andrew White, for the Respondent
Ms. Katherine Bates, for the Respondent
Hearing details:
Perth (telephone);
August 11;
2021.
Printed by authority of the Commonwealth Government Printer
<PR732679>
1 Lawes v Recochem Inc [2020] FWC 5662 [3]-[5].
2 Robin Hansen v Calvary Health Care Adelaide Limited[2016] FWCFB 5223.
3 Coal and Allied v AIRC (2000) 203 CLR 194 [19].
4 Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925 [31]-[37].
5 Ibid [37].
6 Zada v WorkPac Pty Ltd[2019] FWC 7292 [22].
7 Munn v The Grout Guy Pty Ltd as trustee for the Young Enterprises Trust T/A The Grout Guy[2019] FWC 3772 [28].
8 Zada [20].
9 Roy Hill [43].
10 Recochem Inc [19]; Raschilla v Ausino West Pty Ltd ATF The Supercrane Unit Trust T/A Supercrane Engineered Lifting Technology [2017] FWCFB 5952 [12].
11 Lopez Aragon v Aegis Safety Pty Ltd[2013] FWC 5993 [39].
12 [2013] FWC 5993 [39].
13 Lopez Aragon v Aegis Safety Pty Ltd[2013] FWC 5993 [39].
14 Print PR956665, 21 March 2005, Giudice J, Hamilton DP and Larkin C.
15 Robin Hansen v Calvary Health Care Adelaide Limited[2016] FWCFB 5223.
16 Peter Viavattene v Health Care Australia[2013] FWCFB 2532 [39].
17 John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925.
9
0