Morgan Reeve v MacMahon Holdings Limited T/A MacMahon Contractors Pty Ltd

[2015] FWC 7357

[2015] FWC 7357

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Morgan Reeve
v
MacMahon Holdings Limited T/A MacMahon Contractors Pty Ltd
(U2015/3795)

COMMISSIONER WILLIAMS PERTH, 26 OCTOBER 2015

Termination of employment.

[1] This decision concerns an application made under section 399A of the Fair Work Act 2009 (the Act) by McMahon Holdings Limited T/A McMahon Contractors Pty Ltd (McMahon or the respondent)

[2] The background to this application is that on 10 March 2015 Mr Morgan Reeve (Mr Reeve or the applicant) made an application for an unfair dismissal remedy under section 394 of the Act naming McMahon as the respondent.

[3] Shortly thereafter after on 19 March 2015 McMahon’s lodged their form F3−Employer Response to Unfair Dismissal Application which explained the background to Mr Reeve’s dismissal and raised the jurisdictional objection that the dismissal could not be an unfair dismissal because it was a case of genuine redundancy.

[4] As a consequence of McMahon’s objection the conciliation meeting with a Fair Work Commission conciliator was cancelled and the application was referred for hearing and determination.

[5] On 27 March 2015 directions were issued to the parties regarding the filing of statements of evidence and outlines of submissions.

[6] The applicant was to file his materials by 24 April 2015. On that day my associate spoke to the applicant who advised that he had unexpectedly had to go to Sydney and so was not able to comply with the directions. At my associate’s suggestion he followed this up with an email the same day requesting an extension “...due to a family emergency...”.

[7] On 28 April 2015 amended directions were issued requiring the applicant to file his materials by 5 May 2015.

[8] On 7 May 2015 the applicant sent an email to my associate saying that he was trying to find the email relating to the due date for submitting documents and that he would send a statement from a previous workmate which he expected to forward the same day.

[9] Nothing else was received from the applicant that day.

[10] On 8 May 2015 I wrote to the applicant referring him to the previous directions issued on 28 April 2015 and noting that he had not complied with those. I directed him to file with the Commission his materials by 15 May 2015 and explained that if he did not comply with this further direction I would take his repeated non-compliance as demonstrating he did not wish to continue with his application and his application may therefore be dismissed.

[11] On 12 May 2015 Mr Reeve filed a witness statement from one previous fellow employee and stated that he wished to file another witness statement from another employee but he is currently working offshore with limited communication.

[12] The same day Mr Reeve was reminded by my associate by return email that all of his materials must be filed by 15 May 2015.

[13] On 19 May 2015 I provided further directions to Mr Reeve which referred to my previous amended directions sent on 8 May 2015 and confirmed that the Commission had received a one paragraph witness statement from one witness but no other materials had been filed by Mr Reeve. He was advised he must file his materials by 26 May 2015 and again reminded that non-compliance may lead to dismissal of his application.

[14] Following a phone conversation with a friend of the applicant who was assisting him my associate later that day forwarded to Mr Reeve by email a link to the Commission’s website which provides information about preparing for proceedings.

[15] On 26 May 2015 Mr Reeve emailed my associate and advised that he wished to use the original unfair dismissal letter he attached to his application as his witness statement. He also enquired about his partner Ms Hughes also being a witness. Later that day Mr Reeve provided by email a witness statement from Ms Hughes. Mr Reeve also advised that he had relocated to Darwin and wished to apply for the hearing to be conducted by Skype or phone.

[16] Consequently amended directions regarding the time for the respondent to provide their statements of evidence and submissions were issued on 29 May 2015 requiring the respondent provide its materials by 29 June 2015.

[17] On 29 May 2015 my associate emailed Mr Reeve and advised that he would be able to participate in any proceedings by videoconference from the Commission’s Darwin office and details regarding this would be provided when the matter was listed for hearing.

[18] On 29 June 2015 the respondent provided its materials in compliance with the Commission’s directions.

[19] On 15 July 2015 a notice of listing was provided to the parties for a conciliation conference to be held on 22 September 2015 with a video link to the Commission’s office in Darwin for the benefit of the applicant.

[20] On 26 August 2015 Mr Morgan emailed my associate and advised he would be attending at the Perth Commission’s office because he was now back in Perth.

[21] On 2 September 2015 the applicant advised by email that his roster had changed and he was not able to make 22 September 2015 conference.

[22] Both parties were subsequently requested on 7 September 2015 to provide their availability for a conference from mid-October to the end of November 2015.

[23] The applicant responded by email on 18 September 2015 with his availability based around his work roster. He advised he would be available between 22 and 29 October 2015.

[24] On 21 September 2015 a new notice of listing was sent to the parties including to Mr Reeve at his email address which advised that the conciliation conference had been relisted to Thursday, 22 October 2015.

[25] On Thursday, 22 October 2015 two representatives from McMahon attended the Commission to participate in the conciliation conference. Mr Reeve failed to attend the conference.

[26] Later that day McMahon by email to the Commission made an application under section 399A of the Act that Mr Reeves application be dismissed because he had unreasonably failed to attend the conference. That application is below:

“Dear Commissioner Williams

Macmahon would like to submit an application for the dismissal of case U2015/3795 Reeve, Morgan v MacMahon Holdings Limited T/A Macmahon Contractors Pty Ltd bought under s.399A (1)(a) of the Fair Work Act.

Macmahon Contractors may apply to the Fair Work Commission under s399A(1)(a) of the Fair Work Act as Mr Reeve’s failed to attend a conference today 22 October 2015, at 10am conducted by the Fair Work Commission at their office on St Georges Terrace, Perth in relation to his application for unfair dismissal;

Mr Reeve’s has not compiled with the Commissioner’s direction throughout this application, letter dated 8 May 2015 and received further direction dated the 19 May 2015. Mr Reeve’s originally rescheduled the conciliation conference from the 22 September 2015 to today, due to work commitments.

…”

[27] Consequently I wrote to the applicant the same day advising him that because he had failed to attend the conference the respondent had applied for the application to be dismissed under section 399A(1) of the Act. A copy of McMahon’s emailed section 399A application was enclosed. Mr Reeve was invited to provide a submission on the respondent’s application by no later than Friday, 30 October 2015.

[28] At approximately 3.30 p.m. the same day Mr Reeve rang the Commission and spoke to my associate. He advised that he had forgotten about the conference listed for that morning as he was on night shift. My associate told him we had just sent him some correspondence by email regarding his non-attendance and that he should refer to that correspondence. Mr Reeve asked if his application can be dismissed for not attending and was told that this could occur and that the respondent had made an application for the Commission to dismiss his application. He was advised to refer to the correspondence that had been sent to him.

[29] Later that evening Mr Reeve provided the following response and submission to McMahon’s section 399A application.

“Dear Commissioner,

Firstly, I wished to express my sincere apologies for not attending today’s conference, I sincerely apologise for the inconvenience this caused to all parties concerned. Due to a combination of things namely ongoing family-health related issues combined with a lack of sleep having just come off night shift resulted in this occurrence. It was a genuine mistake on my part for which I am truly sorry.

The last few months since I was made redundant have been extremely stressful and demanding for me for a number of personal reasons. I disagree with Kylie Butson’s statement that I ‘have not complied with the Commissioner’s direction throughout the application’ as unfortunately since I was made redundant I have been forced to take whatever work has been offered to me and as such my working commitments have been completely up in the air. That said I do feel I gave sufficient notice last time.

Once again I wish to express my sincere apologies to all parties concerned and I assure you this will not happen again.

I ask for the understanding of the Commissioner in regards to this matter so that my case is given the opportunity it deserves.

I look forward to hearing from you further on this matter.”

The legislation

[30] Section 399A of the Act is set out below:

“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.”

[31] Senior Deputy President Richards in the case of Ms Lisa Allen v Army and Air Force Canteen Service 1 considered the proper approach to applications made under section 399A of the Act as follows,

“[36] The discretion vested in the Commission by way of s.399A of the Act is fettered only in so far as it must be exercised on the basis of a judgement as to whether an Applicant had, in the circumstances before the Commission, "unreasonably [...] failed to comply with [a Commission] direction [...] relating to the application."

[37] Section 399A(1) of the Act focuses the Commission on the circumstances of the Applicant's conduct for the purposes of the exercise of discretion. The Explanatory Memorandum is consistent with the statutory focus in that it indicates that:

the amendment is intended to address the small proportion of applicants who may pursue claims in an improper or unreasonable manner.

[38] The Explanatory Memorandum further states that:

the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant.

[39] The discretion is not one that should be read as being subject to the scope of considerations as might arise in Brodie Hanns (Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR see pages 299-300) or as are otherwise applicable by statutory direction under s.366 of the Act or s.394(3) of the Act.

[40] Further, it is not to be read into the jurisdiction, for example, that the Commission must establish that the Respondent has been exposed to a prejudice, or in some way disadvantaged or put to cost (though understandably such circumstances may well arise consequentially).

[41] Nor does the Respondent need to possess a defence against the claims as made in the originating application (as is said by the Full Bench in Re: Sayers 1 to be required in relation to a dismissal of an application under s.587(1) of the Act, at the Commission’s initiative).

[42] The discretion, therefore, to dismiss an application under s.399A(1) of the Act is exercised subject only to an objective evaluation of the Applicant's conduct, and more particularly, whether or not that conduct was unreasonable in the circumstances.” (Emphasis added)

[32] This approach has been cited with approval by other members of the Commission 2 and I agree with this approach.

[33] In this case there is no dispute that Mr Reeve has failed to attend a conference conducted by the Commission. The question for the Commission is whether objectively Mr Reeve’s conduct was unreasonable in the circumstances.

[34] Mr Reeve has stated that he failed to attend the conference due to a combination of ongoing family health related issues and a lack of sleep having just come off night shift. He says it was a mistake on his part. No further explanation or medical evidence as to what Mr Reeve’s ongoing family health related issues were has been provided.

[35] The circumstances relevantly were that a previous listed conference had been cancelled at Mr Reeve’s request to accommodate for a change in his work roster. Mr Reeve had then provided at the Commission’s request his available dates for that conference to be relisted. The Commission then relisted the conference for a later date accommodating Mr Reeve’s availability.

[36] Mr Reeve does not have a good reason for failing to attend the conference it was as he says simply a mistake on his part. Mr Reeve is the applicant in this matter and as can be seen from the terms of section 399A of the Act he has a duty to attend conferences or hearings and to comply with directions or orders in relation to his application. In the circumstances here in my view Mr Reeve’s has unreasonably failed to attend the conference and consequently in this case the Commission does have the discretion to dismiss the application.

[37] In considering whether the Commission should exercise the discretion to dismiss the application it is appropriate to consider the broader circumstances here which in this case include Mr Reeves repeated delays in filing materials in compliance with the Commission’s directions and amended directions. In contrast the respondent has met its duty to comply with Commission directions. Mr Reeve’s non-attendance at the conference can be characterised as just the most recent instance of his lack of attention to properly pursuing his application.

[38] In all the circumstances I am satisfied it is appropriate for the Commission to exercise its discretion in this case and to dismiss this application. An order will be issued in conjunction with this decision to dismiss Mr Reeve’s unfair dismissal remedy application.

COMMISSIONER

 1   [2013] FWC 9209.

 2   Commissioner Wilson in Mr Bradford Newbond v GM Holden Ltd[2015] FWC 6024 at [33].

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