Mr Alex Brown v The Trustee for Belgravia Leisure Unit Trust T/A Ferny Hills Swimming Pool

[2019] FWC 2181

[2019] FWC 2181

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Alex Brown
v
The Trustee for Belgravia Leisure Unit Trust T/A Ferny Hills Swimming Pool
(U2018/10287)

DEPUTY PRESIDENT ASBURY BRISBANE, 18 APRIL 2019

Application for an unfair dismissal remedy – Jurisdictional objections – Applications under s.399A(1)(b) for the Commission to dismiss application for failure to discontinue application after settlement agreement reached and s. 399A(1)(c) for failure to comply with a direction of the FWC relating to the application – Application under s. 587 to dismiss applications – Applications to dismiss refused – Refusal to dismiss application on the basis that Respondent’s response is contradictory – Not an appropriate case to exercise discretion to dismiss – Jurisdictional objections to be determined – Provisional view in relation to jurisdictional objections expressed.

OVERVIEW

[1] This decision concerns an application by Mr Alex Sandy Brown (the Applicant) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by The Trustee for Belgravia Leisure Unit Trust T/A Ferny Hills Swimming Pool (the Respondent). The application was filed in the Commission on 5 October 2018. The matter was listed for conciliation, before a Fair Work Commission Conciliator, on 31 October 2018, however the matter did not settle at conciliation.

[2] In its F3 Employer Response, the Respondent raises a number of jurisdictional objections to the application: the Applicant was not an employee; the Applicant has not met the minimum employment period; the Applicant was not dismissed; the Application is out of time; and the Applicant is barred from making this application due to the operation of s. 725 of the Fair Work Act 2009 (the jurisdictional objections)

[3] The matter was listed for Mention on 20 December 2018 and Directions were issued for filing of material in relation to the all of the jurisdictional objections. The Directions of 20 December 2018 required that the Respondent file its material by 25 January 2019 and the Applicant file his material in response by 22 February 2019. The Directions appended all of the sections of the Act relevant to the jurisdictional objections and referred the parties to the matters that they were required to address in the submissions and evidentiary material. The Directions also stated under a heading “NON COMPLIANCE WITH THESE DIRECTIONS” that the Commission would not accept material that is filed after the expiry of a time specified in the Directions unless an extension has been sought and granted by the Commission prior to the expiry of the specified time. The Directions further stated that requests for an extension of time must be made to the Commission in writing and specify the grounds upon which an extension is sought and that relevant documents such as medical certificates should also be provided.

[4] The Respondent complied with the Directions, and filed its material in relation to the jurisdictional objections on 24 January 2019. The Applicant was copied into the Respondent’s correspondence and to the material filed. Further to its submissions in regard to the jurisdictional objections, the Respondent also applied under s. 399A of the Act seeking that the Commission dismiss the Applicant’s unfair dismissal application on the grounds in subsection (1)(c) on the basis that the Applicant failed to discontinue his application “after a settlement agreement has been concluded”. In relation to this application (the first s. 399A application) the Respondent referred to a General Protections Dismissal Application previously filed by the Applicant, which was resolved with the execution of a Deed of Settlement. The Respondent also submitted that the Commission should exercise its power to dismiss the Applicant’s application pursuant to s.587, on the basis that the application was not made in accordance with the Act, is frivolous or vexations, or has no reasonable prospect of success.

NON COMPLIANCE WITH DIRECTIONS

[5] The Applicant did not comply with the Directions and did not file his material by 22 February 2019 as required. The Applicant also did not seek an extension of time as required by the Directions. On 25 February 2019, at my request, my Associate sent the following correspondence to the Applicant, with a copy to the Respondent:

“Dear Mr Brown,

I refer to the above matter and the attached directions which required you to file your material by 4.00pm on Friday 22 February 2019.

I note that no material was received in compliance with the directions, or any request for an extension to extend the time in which your material was due.

Please indicate your intentions to file any material by no later than 12.00pm tomorrow.” [26 February 2019]

[6] No response was received from the Applicant and no material was filed. At 9:34 am on 27 February 2019, the Respondent sent correspondence to my Chambers (also copied to the Applicant) in the following terms:

“Dear Associate

Following your email of Monday 25 February 2019 (below) addressed to the parties in the above matter, it is now evident that the Applicant does not intend to file and serve materials in response to our (the Respondent’s) jurisdictional objections.

We suggest to the Fair Work Commission that the failure of the Applicant to file materials is a sign of concession by the Applicant that the jurisdictional objections raised are valid and cannot be disputed and that the Applicant does not have any reasonable prospect of success in this matter.

We formally apply for the matter:

1. To be dismissed because of the Applicant’s failure to comply with an order or direction from the Fair Work Commission (Section 399A(1)(b) of the Fair Work Act 2009), or

2. To be dismissed for want of prosecution by the Applicant (refer to Kora v Cardno Staff Pty Ltd T/A Cardno [2015] FWC 4699) ; or

3. To be dismissed, based on the Respondent’s papers, directing that the Applicant’s unfair dismissal action has no reasonable prospect of success based on the Respondent’s jurisdictional objections (Section 587 of the Fair Work Act 2009).

If the Fair Work Commission deems it necessary to conduct a formal hearing on this matter on procedural matters, we request that such a hearing be held by telephone to reduce the Respondent’s costs in the defence and prosecution of this matter.”

[7] At 12:57 pm on 27 February 2019, I instructed my Associate to send correspondence to the parties, directing that the Respondent file its application under s.399A of the Act using the Commission’s F1 form and to serve it on the Applicant, by 4.00 pm on 27 February 2019 and that the Applicant respond to that application by 4.00 pm on 28 February 2018. The parties were advised in that email that the matter would be listed for telephone hearing to determine the s.399A application, and the Applicant was put on notice that if no response was received, or if he failed to attend the telephone hearing, his application may be dismissed without further notice. A notice of listing was issued at 2:02 pm on 27 February 2019, confirming that the telephone hearing would be held at 9:00 am AEST on Friday, 1 March 2019 in relation to the s. 399A application.

[8] In compliance with the Directions of 27 February 2019, the Respondent filed a For1 in relation to the second s.399A at 2:32 pm on 27 February 2019. The Applicant was copied into the Respondent’s email correspondence, to effect service of the application. At 2:41 pm on 27 February 2019, I instructed my Associate to send follow up correspondence, confirming receipt of the Respondent’s s.399A application, and restating the earlier direction that the Applicant provide his response by 4:00 pm on 28 February 2019. At 2:42 pm on 27 February 2019, the Applicant sent correspondence to Chambers (without copying that correspondence to the Respondent) stating:

“sorry, my computer has been acting up…..

I am trying to catch up to where we are at….

is the next thing I am to do is respond by tomorrow to the 399 application?

Thanks,

Alex”

[9] A reply to the Applicant was sent from my Chambers at 3:08 pm on 27 February 2019 (with a copy to the Respondent), stating:

“Dear Mr Brown,

I refer to the below correspondence. Please ensure you copy the Respondent into correspondence sent to the Commission.

As per the correspondence sent to your email address earlier today at 12.57pm, you are to respond to the Respondent’s application made under s.399A of the Fair Work Act 2009, following your failure to comply with the directions issued on 20 December 2018.”

[10] Further correspondence was sent to the Applicant at 3:09 pm on 27 February 2019 which confirmed that, as previously stated, his response to the s.399A application was to be filed by 4:00 pm on 28 February 2019. At 3:11 pm on 27 February 2019, the Applicant sent correspondence to Chambers only, asking “does my response need to be on any special Form?” A reply was provided to the Applicant by Chambers at 3:21 pm, copying in the Respondent, which confirmed the following:

“Your response does not need to be contained in a particular form. However, your response should address the s.399A application and provide any reasons you have for failing to comply with the directions and any reasons why your application should not be dismissed.

You will also need to be available to speak to your response at the hearing listed at 9.00am on Friday 1 March 2019 by telephone.”

[11] At 3:44 pm on 27 February 2019, the Respondent sent correspondence to Chambers, copying in the Applicant, which attached its “Attachment 1” to the s.399A application. The Applicant provided his response to Chambers (copying in the Respondent) at 10:36 pm on 27 February 2019. However, the Applicant’s “response” addressed matters relevant to the Respondent’s Jurisdictional Objections, and failed to address the s.399A application.

[12] At 10:57AM on 28 February 2019, I instructed my Associate to send an email to the Applicant in the following terms:

“Dear Mr Brown,

I acknowledge receipt of the attached response, which does not appear to address the Respondent’s s.399A application.

As per the items of correspondence of yesterday’s date sent to you at 12:57pm, 2:41pm and 3:08pm, what you are required to respond to is the application made by the Respondent under s.399A of the Fair Work Act 2009 to have your unfair dismissal application dismissed on the basis that you failed to comply with the directions. I note this application has been provided to you, and I will attach it to this correspondence again, being the second attachment.

You have until 4.00pm today to respond to that application, and your response should address why you failed to comply with the directions and why your application should not be dismissed on that basis.

If no response is received you may state any reasons at tomorrow’s hearing at 9.00am QLD time.”

[13] At 1:46 pm on 28 February 2019, the Applicant provided the following response and did not forward a copy to the Respondent:

“looking at the website of the Fair Work Commission

it outlines the Commissions role as such things as:

The Commission’s powers and functions include:

•  dealing with unfair dismissal claims

•  dealing with anti-bullying claims

•  dealing with general protections and unlawful termination claims

•  setting the national minimum wage and minimum wages in modern awards

•  making, reviewing and varying modern awards

your website does not say your role is to penalise workers who are poor and have lost their job

I have explained I had computer trouble....

and as we are communicating with emails from a COMPUTER

that would make communication difficult !

The Respondent is a very large company with THOUSANDS of employees,

and a dedicated HR department with modern computers,

and they can communicate with you very quickly

I am not blessed with riches like them,

and am poor

and am on Centrelink

I did not refuse to communicate with you,

I was just a few days late....

That delay did not cause anyone to lose their job

or suffer economic hardship....

the actions of the Respondent Belgravia

DID cause me to lose my job and economic hardship......

and you want to use Fair work Time and resources to penalise me ??????

I believe I have replied to both the Jurisdictional

and 399 objections

If not, feel free to ask further questions tomorrow morning…”.(Applicant’s emphasis)

[14] At 2:00 pm on 28 February 2019, my Associate emailed the parties confirming that that they would be contacted at 9:00 am on 1 March for the telephone hearing.

HEARING 1 MARCH 2019

[15] At 9:00AM on 1 March 2019, following a short delay, the Applicant was successfully contacted and the telephone hearing proceeded. Based on the Applicant’s submissions at the hearing, and his insistence that he had experienced computer issues which prevented him filing his material, I decided to provide a final opportunity for the Applicant to respond to the s. 399A application and to explain his non-compliance with Directions. Subsequent to the telephone hearing, the following correspondence was sent to all parties, allowing a further period for filing material in relation to the s.399A application and the Respondent’s jurisdictional objections:

“Dear Parties,

As stated by the Deputy President at this morning’s hearing, Mr Brown has been given a further opportunity to file any additional material in response to the Respondent’s outline of submissions that address the jurisdictional objections, and to respond to the Respondent’s applications for Mr Brown’s unfair dismissal application to be dismissed under s.399A and s.587 of the Fair Work Act 2009, made on the basis that Mr Brown failed to comply with a direction of the Fair Work Commission and that the unfair dismissal application has no reasonable prospect of success.

Mr Brown’s response to these matters is to be received by no later than 5.00pm Wednesday 6 March 2019.

The Respondent will be given until 5.00pm Friday 8 March 2019 to provide anything in response to Mr Brown’s further material.

The Deputy President will then determine the Respondent’s s.399A and s.587 applications on the basis of the material filed and issue a decision in due course.”

[16] At 10:47 pm on 5 March 2019, the Applicant provided his further material to Chambers by email (again failing to provide a copy to the Respondent) which attached email correspondence between the Applicant and Respondent. The Applicant’s material filed on 5 March 2019 did not contain a response to the matters raised in the Respondent’s s.399A and s.587 applications and did not explain the relevance of the emails to the jurisdictional objections.

[17] The Applicant’s material was forwarded to the Respondent on 6 March 2019. On 7 March 2019, the Respondent sent the following correspondence to Chambers, copying in the Applicant:

“Dear Associate

Thank you for forwarding documents filed by the Applicant in this matter. We make the observation that the Applicant has not served these documents on the Respondent as directed by yourself on more than one occasion.

Following the emailed Directions to the parties on 1 March 2019 (a copy of this email is attached), we make the following comments with respect to the Applicant’s filing of 20 email trails on 5 March 2019 in the Fair Work Commission:

1. It would appear that these emails have been filed in response to the Respondent’s Jurisdictional Objections submission which were the subject of Directions first issued by the Fair Work Commission on 20 December 2018 with an extension granted to the Applicant at the hearing on 1 March 2019.

2. We submit that these emails do not address the Directions issued by the Fair Work Commission on 1 March relating to:

a. A response to “the Respondent’s outline of submissions that address the jurisdictional objections”. We submit that the emails filed by the Applicant on 5 March 2019 in no way address the Respondent’s jurisdictional objection submissions. It is arguable if they even add anything to the General Protections and Unfair Dismissal actions themselves which are the subject of the Respondent’s jurisdictional objections.

b. A response “to the Respondent’s applications for Mr Brown’s unfair dismissal application to be dismissed under s.399A and s.587 of the Fair Work Act 2009, made on the basis that Mr Brown failed to comply with a direction of the Fair Work Commission and that the unfair dismissal application has no reasonable prospect of success.” We submit that the Applicant has not put any argument as to why this matter ought not to be dismissed under s.399A and s.587 of the Fair Work Act 2009.”

LEGISLATION

[18] 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.

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.”

[19] Section 587 of the Act is in the following terms:

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.

EVIDENCE AND SUBMISSIONS

[20] The matter has some history. On the basis of information tendered by the parties in these proceedings, the factual background can be summarised as follows. The Applicant was employed as a casual lifeguard from 2 January 2018 under a contract of employment which provided that his hours of duty would be variable and as required by the Company. According to the Respondent, the Applicant was part of a casual pool of employees who were called on to work on an “as needed basis”. The last date on which the Applicant worked a shift for the Respondent was 29 April 2018.

[21] On 4 May 2018 the Applicant sent an email to Ms Michelle McKiernan, Centre Manager at the Ferny Hills pool, asking to be updated on current and future rosters past 29 April 2018 and indicating availability to work Sundays and Wednesdays after 8.00 am. On 4 May 2018 Ms McKiernan responded to the Applicant by email advising that from Sunday 6 May 2018 the pool would not be open on Sundays until September and that for the last three weeks that the full facility would be open, shifts would be covered by permanent staff. Ms McKiernan’s email also stated that she had noted the Applicant’s availability to work on Wednesdays and would let him know if anything became available. Mr Cullen, the Respondent’s Queensland Manager, sent an email to the Applicant on 30 May 2018 attaching a letter dated 24 May, stating:

“The last casual shift you worked at Ferny Hills Swimming Pool was on Sunday 29 April 2018. While the outdoor pool continued to operate until the last Sunday in May 2018, Belgravia had no business need to call on you to work beyond 29 April 2018.

Since 29 April 2018 (the day of your last shift) we have had no business need to call on you to attend work on a casual basis and we currently not have any opportunities we could offer you for further casual work.

I confirm that you ceased to be an employee of Belgravia at the end of your casual shift on 29 April 2019.”

[22] On 13 June 2018, the Applicant made an application under s. 365 of the Act seeking that the Commission deal with a general protections dispute involving his dismissal by the Respondent. 1 In relation to the substance of that application it is sufficient to state that the Applicant had raised a number of complaints about the conduct of his colleagues and asserted that he had been dismissed for exercising a workplace right to make such complaints. The Respondent denied that allegation and maintained that it took issue with the manner in which the Applicant raised and pursued these matters and that this was the reason for sending the letter of 30 May 2018 to the Applicant.

[23] The general protections application which was tendered by the Respondent in its submission in the present matter contains a declaration by the Applicant that his employment with the Respondent commenced on 2 January 2018 and that he was dismissed on 30 May 2018 by the email sent to him on that date, extracted above. In its Form F8A Response to the general protections application (also tendered as part of its material in the present proceedings) the Respondent’s Human Resources Manager Mr Farkas made a number of assertions on its behalf. Variously, it was asserted that the email of 30 May was not a dismissal letter but was simply clarifying the Applicant’s “employment status” with the Respondent since 29 April 2018 (the date of his last shift) and that the Respondent did not currently have any business need to call on the Applicant to attend work or to offer him further casual work.

[24] The Respondent also asserted in its response to the Applicant’s general protections application that the Applicant’s request for reinstatement was nonsensical given that he was not dismissed but had rather been advised that there were currently no opportunities to offer him further casual work. The Respondent further stated in that response that if the Applicant was available for casual work the Respondent would offer him such work without any guarantee as to duration, as this is the nature of casual work. Later in its response to the general protections application, the Respondent stated that Mr Cullen sent the email of 30 May 2018 “so there would be no doubt in the Applicant’s mind that he had ceased to be an employee of the Respondent on the day of his last shift on 29 April 2019.” Further, the Respondent objected to the general protections application on the basis that it was filed outside of the 21 day statutory timeframe based on an assertion that the Applicant should have known that his employment with the Respondent ceased on 29 April 2018 when he worked his last shift. The Respondent made this assertion notwithstanding that it also asserted that the Applicant had not been dismissed.

[25] The general protections application was the subject of a conciliation conference on 23 July 2018 and a settlement agreement was signed by the Applicant on 25 July 2018. The settlement agreement was appended to the unfair dismissal application by the Applicant and was also tendered by the Respondent in its Response to that application. Relevantly the settlement agreement indicates that the Applicant alleged in his general protections application that the Respondent had dismissed him in breach of the general protections provisions of the Act and contains the following terms:

“Letter

3.1. The Respondent will within 7 days of the Applicant and the Respondent signing the terms of settlement provide to the Applicant, on company letterhead, a letter which confirms that the Applicant remains in the Respondent’s casual pool of employees, and confirms that should the Respondent have a business need to do so it will contact the Applicant to ascertain the Applicant’s availability and acceptance for work as a casual life guard, and confirms that the Respondent will consider the Applicant for casual reception and swim instruction work should a suitable opportunity arise.

Release

3.2. On the Respondent complying with clause 3.1 above, the Applicant releases and forever discharges the Respondent, its directors, employees, assignees or successors from any liability past, present or future from all claims, suits, demands, actions or proceedings arising out of or connected with the Applicant’s employment with the Respondent, including but not limited to the cessation of the employment.

3.3. The Respondent releases and forever discharges the Applicant from any liability past, present or future from all claims, suits, demands, actions or proceedings arising out of or connected with the Applicant’s employment with the Respondent, including but not limited to the cessation of the employment.”

[26] Thereafter emails were exchanged by the parties in relation to attempts by the Applicant to secure shifts at the Ferny Grove pool culminating in the Applicant filing his unfair dismissal application on 5 October 2018. In that application, the Applicant states that he was aware that in August 2018 work at the Respondent’s pools would be increasing and that “at this time, Belgravia Queensland manager Dan Cullen directed me to contact Ferny Hills Pool manager Michelle regarding work shifts”. There was no evidence of such a direction being given by Mr Cullen. The evidence provided by the Applicant indicates that on 31 August 2018, the Applicant emailed Mr Cullen stating that he had seen a job advertisement on “seek.com.au” for lifeguards and swim instructors at the Ferny Grove Pool which indicates that there is work available. The email concludes with the Applicant asking who he should contact in relation to shifts. Mr Cullen’s response also sent on 31 August 2018, states that Michelle [McKiernan] is still the Manager and the Applicant should send details of his availability to her.

[27] The Applicant then emailed Ms McKiernan and provided information about when he was available to work. That email is not in evidence. However, the response to that email on 6 September 2018 stated that shifts would continue to be covered by permanent staff and that the need for further shifts would be evaluated closer to summer. On 10 September 2018 the Applicant emailed Mr Cullen challenging the statement that shifts were being covered by permanent staff and asserting that the Applicant had been to the Ferny Grove Pool on 9 September 2018 and had ascertained that some casuals were working shifts and had told him that the pool was short of staff and looking for more staff. The email went on to make allegations of dishonesty on the part of Ms McKiernan.

[28] On 14 September 2018 the Applicant again emailed Mr Cullen to advise that he had updated his “Pool Lifeguard Award” and was keen to get back to work and was generally available seven days a week from 7.00 am. On 14 September 2018, Mr Cullen responded to the Applicant’s email as follows:

“Thanks for your confirmation of your availability for shifts at Ferny Hills. Michelle has received this and you are in the pool of casuals that we will roster for shifts as required. However I will say that trying to force yourself into shifts is not the best way, in our view, to get shifts. Your behaviour including continued negativity towards the manager and the workplace only makes it more difficult for us to find suitable work to offer you. I ask that you take a step back and reflect on how you are coming across to us. We will only offer you casual work if we have work available and we feel completely comfortable that you will discharge your duties more effectively than others who may also be available to do the casual work we require to be done.”

[29] In his unfair dismissal application, the Applicant asserts that this email terminated his employment with effect from 18 September 2018.

[30] The Respondent dealt with its jurisdictional objections in a certain order. The first objection is advanced on the basis that the Applicant has not met the minimum employment period under s. 383 of the Act. The Respondent submits that while the letter dated 24 May 2018 (emailed to the Applicant on 30 May) is not a termination letter, it accepts for the purposes of its objection “the Applicant’s false contention that he was dismissed on 30 May 2018” as set out in his general protections application, and that accordingly the Applicant had not met the minimum employment period having been employed for a period of only four months and 28 days as at 30 May 2019.

[31] It is then submitted on the same basis that accepting the Applicant’s contention in his general protections application that he was dismissed on 30 May 2018, his unfair dismissal application made on 5 October 2018 is made outside the time required in s. 394(2) of the Act. In this regard it is also asserted that the Applicant’s contention in his unfair dismissal application that he was dismissed on 18 September 2018 is frivolous and vexatious on the basis that the Applicant has not done any work for the Respondent since 29 April 2018 and was not employed by the Respondent at any time during that period or when he made the unfair dismissal application on 5 October 2018.

[32] Further objections are advanced on the basis that the Applicant was not an employee of the Respondent at the time of making his unfair dismissal application and could not have been dismissed. In relation to these objections the Respondent asserts that as a casual employee the Applicant was only paid for work done and is not classified as a casual employee for periods when he does not work. As the Applicant did not work for the Respondent between 29 April and 18 September 2018 (the date the Applicant claims to have been dismissed) and was not employed on 5 October 2018 when he made his unfair dismissal application, the Applicant was not an employee at the relevant time and could not have been dismissed.

[33] The Respondent asserts that by virtue of s. 725 of the Act, the Applicant is barred from making an unfair dismissal application unless his general protections application was withdrawn or failed for want of jurisdiction. It is submitted by the Respondent that the unfair dismissal application is made in breach of s. 725 of the Act and the terms of settlement agreed by the parties in relation to the general protections application.

[34] The Respondent submits that the Commission should exercise its power under s. 399A of the Act to dismiss the Applicant’s unfair dismissal application on the grounds that he has failed to comply with a Direction or Order of the Commission and/or has failed to discontinue the application after a settlement agreement has been concluded.

[35] In relation to the Respondent’s jurisdictional objection on the basis that he was not an employee, the Applicant submits:

“There were numerous email exchanges in 2018 with Ferny Hills Pool manager Michelle and Belgravia Queensland manager Dan Cullen. At any time, one of those managers could simply have stated that I was not a Belgravia employee….but they did not!”

[36] In response to the assertion that he has not met the minimum employment period, the Applicant submits:

“As several months passed without either manager Michelle or Dan stating that I was not an employee, the minimum employment period had been reached.”

[37] With respect to the jurisdictional objection on the basis that he was not dismissed, the Applicant states:

“For some reason I am not working at Belgravia at present although I am available, and Belgravia insists I was not dismissed…..

Belgravia seems to want to have its cake, and eat it too…by claiming I was not dismissed AND claiming that I was not an employee. (can I be both a dog and a cat?....can I be both alive, and dead?.....Belgravia would say yes!)”

[38] In response to the application being made outside the time required, the Applicant asserts that if the Respondent is claiming he was not dismissed, then the application cannot be out of time and asserts that the Respondent is throwing up every possible excuse, hoping one will stick. With respect to the application to dismiss his unfair dismissal application on the basis of s. 725 of the Act, the Applicant states that he followed the advice of a legal centre when making the general protections application and was later told by “Fair Work staff” that he could have made an unfair dismissal application instead. The Applicant formed a view that “Fair Work staff” knew more than the legal centre and accordingly filed an unfair dismissal application.

CONSIDERATION

Section 399A applications

[39] The power under s. 399A of the Act to dismiss an application is discretionary. The exercise of the power is predicated on the unreasonableness of the conduct of an applicant in relation to the stipulated matters: failing to attend a conference or hearing; failing to comply with a direction or order of the Commission; or failing to discontinue an application after a settlement agreement has been concluded. The Respondent’s first application under s. 399A is based on subsection (1)(c) and in this regard it is asserted that the Applicant unreasonably failed to discontinue the unfair dismissal application after a settlement agreement had been concluded.

[40] I am not satisfied that the Applicant’s unfair dismissal application should be dismissed under s. 399A(1)(c). That section does not apply in the circumstances of the present case. The settlement agreement signed by the Applicant relates to a general protections application made in respect of an alleged termination of the Applicant’s employment on 30 May 2018. The present proceedings relate to an alleged dismissal on 18 September 2018. The settlement agreement pertains to different proceedings than those presently before the Commission. The wording of s. 399A(1)(c) empowers the Commission to dismiss an unfair dismissal application if the Commission is satisfied that the Applicant “failed to discontinue the application after a settlement agreement has been concluded.” It is clear that the failure to discontinue and the application to dismiss on that basis, must relate to the same application. Even if my analysis in relation to this matter is incorrect, I would not exercise the discretion to dismiss the Applicant’s unfair dismissal application under s. 399A(1)(c) in the circumstances of this case, on the basis of my views about the contradictory responses of the Respondent to that application, set out below.

[41] In relation to the second s. 399A application the Respondent contends that pursuant to s. 399A(1)(b) the application should be dismissed due to the unreasonable failure of the Applicant to comply with a direction or order of the Commission relating to the application.

[42] It is true that the Applicant has failed to comply with Directions of the Commission. Directions issued by the Commission on 20 December 2018 required that the Applicant file material in reply to the jurisdictional objections raised by the Respondent by 22 February 2019. The Applicant failed to comply with that Direction and further failed to comply with the Direction that he seek an extension of time before the time in which he was required to file his material. Further the Applicant failed to comply on a number of occasions with Directions requiring him to copy his material to the Respondent and failed to respond in a timely manner to communications from my Associate.

[43] Parties in proceedings before the Commission should comply with Directions of the Commission and should seek any extension in a timely manner in advance of the date by which compliance is required. Parties should also engage with the Commission and its staff in a courteous and responsive manner. The attitude displayed by the Applicant in the present case leaves much to be desired. His communication in relation to Directions and material filed by the Respondent has been essentially non-responsive to the issues he has been requested to address, notwithstanding the fact that the Applicant has been given numerous opportunities to provide evidence and submissions to the Commission.

[44] The only substantive response that the Applicant has provided in relation to his failure to comply with Directions of the Commission is to assert that he has had computer problems. There was no explanation provided by the Applicant as to the nature of the problems or why he was able to correspond with the Commission by email on some occasions and not on others. Further, the Applicant did not explain why he was unable to make contact with the Commission by telephone prior to the expiration of the time for compliance with the Directions and seek an extension.

[45] However, in deciding whether to exercise a discretionary power to dismiss his application on the ground in s. 399A(1)(b) I am required to consider whether the Applicant’s failure to comply with a Direction of the Commission was unreasonable. In all of the circumstances I am unable to be satisfied that this is the case. The Respondent filed a significant number of jurisdictional objections and two separate applications under s. 399A as well as an application to dismiss the application under s. 587 of the Act. It is clear from the Applicant’s communications with the Commission that he was under some difficulty dealing with the jurisdictional objections and other applications made by the Respondent. In my view, at least part of the difficulty faced by the Applicant was caused by the contradictory assertions that the Respondent advanced in relation to its jurisdictional objections and the applications seeking the dismissal of the application subject of the present proceedings. Accordingly, the conduct of the Applicant in relation to the non-compliance with Directions of the Commission was not so unreasonable as to warrant the exercise of the discretion to dismiss his application for an unfair dismissal remedy under s. 399A(1)(c). I have dealt with the contradictory assertions of the Respondent in my consideration of whether the Applicant’s unfair dismissal application should be dismissed on the grounds in s. 587 of the Act. I turn now to consider those matters.

Section 587 application

[46] The power in s. 587 of the Act is also discretionary. The discretion is broad and the grounds in s. 587(1)(a), (b) and (c) do not limit the Commission’s power to dismiss matters for other reasons. The Respondent submits that all grounds in s. 587(1) are relevant in the present case and that the Applicant’s unfair dismissal application should be dismissed on all or any of those grounds.

[47] Section 587(a) empowers the Commission to dismiss an application on the grounds that it is not made in accordance with the Act. This ground may generally be relevant where an application is one which the Commission has no power to entertain. However, as Vice President Hatcher observed in Munjoma v Salvation Army v Salvation Army (NSW) Property Trust as Trustee for the Social Work 2, regardless of whether s. 587(1)(a) is the precise source of power to dismiss a matter for want of jurisdiction or not, that power exists.3 His Honour also observed that for the Commission to dismiss a case for want of jurisdiction before hearing evidence is akin to civil litigation where a no-case submission is made at the outset of proceedings, and referred to the Decision of a Full Bench of the Commission in Marigene Larew Micheletto v Korowa Anglican Girls School4which gave the following explanation of the exercise of that power:

“[17] In civil litigation there are circumstances in which a no-case submission may be made at the outset of proceedings and before the plaintiff's evidence commences. The court has a discretion to dismiss an application before any evidence is heard on the basis of the pleadings and other material filed by the plaintiff. In General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others (General Steel), Barwick CJ accepted 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."…

[18] It is apparent that a decision to dismiss an application before the plaintiff has put its case should be reached with extreme caution and only on the basis that the application is manifestly untenable or groundless.

[19] In our view the Commission may properly dismiss an application pursuant to s.170CE(1)(a) in response to a no-case submission made before the applicant has put its case. In considering such a submission the Commission should be guided by the principles in General Steel, that is, the decision should be taken with extreme caution and only on the basis that the application is manifestly untenable.”

[48] Section 587(b) empowers the Commission to dismiss an application on the grounds that it is frivolous or vexatious. The approach to deciding whether an application is vexatious is to consider the motive of the applicant in instituting the proceeding. As Justice North observed in Nilsen v Loyal Orange Trust 5 a proceeding will be instituted vexatiously where the predominant purpose in instituting proceedings is to harass or embarrass the other party or gain a collateral advantage. The term “frivolous” has an ordinary meaning as lacking seriousness, trifling or silly and in my view is coloured by the term “vexatious”.

[49] Section 587(c) empowers the Commission to dismiss an application on the basis that the application has no reasonable prospects of success. A conclusion that a case has no reasonable prospects of success should only be reached with extreme caution and in circumstances where it is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable.

[50] It is important to note at the outset that there has been no substantive hearing in relation to the Respondent’s jurisdictional objections. Although material has been filed by the parties in relation to the jurisdictional objections the hearings to date have been in relation to the s. 399A and s. 587 applications where the Respondent has sought that the Applicant’s unfair dismissal application be dismissed. The evidence of the parties in relation to the jurisdictional objections has not been tested.

[51] The Respondent’s jurisdictional objections are premised on a number of assertions which are contradictory. In effect the response of the Respondent to the unfair dismissal application and the earlier general protections application seeks to approbate and reprobate with respect to the Applicant’s arguments. The jurisdictional objections in relation to minimum employment period, application made outside the required time and on the ground that the applicant was not employed on the date he asserts he was unfairly dismissed, are all based on the Respondent accepting the Applicant’s earlier claim in the general protections application that he was dismissed on 30 May 2018. The Respondent accepts this claim to defeat the Applicant’s claims for unfair dismissal while at the same time maintaining its previous position that the Applicant falsely contended in his general protections claim that he was dismissed on 30 May 2019.

[52] The Applicant’s submission that the Respondent wants to have its cake and eat it to, has some force. In my view it is not appropriate to exercise discretion under s. 587 of the Act to dismiss an application without a hearing – at least in relation to the jurisdictional objections – in circumstances where the Respondent has responded to the application in this manner. I do not accept that the unfair dismissal application is frivolous or vexatious. In relation to s. 587(1)(b) the Applicant asserts that he has been unfairly dismissed and notwithstanding that there may be difficulties with his case, I can discern no ulterior motive or intent to harass or collateral purpose on the part of the Applicant in bringing his application. The alleged conduct of the Applicant in seeking additional shifts and the manner in which he engaged with the Respondent’s managers may be relevant to the determination of the jurisdictional objections or the merits of the Applicant’s case if it proceeds to that point. However, this is not a basis upon which to dismiss the application on the grounds that it is frivolous or vexatious.

[53] I am also unable to accept that the application should be dismissed on the basis that it is not made in accordance with the Act or that the Commission has no jurisdiction to entertain the application as provided in s. 587(1)(a). Whether the Applicant is a long term casual as defined in s. 12 of the Act is not to the point. The question of whether the Applicant is a person protected from unfair dismissal is determined by whether he has completed the minimum employment period. As provided in s. 384 of the Act, a period of service as a casual employee does not count towards an employee’s minimum period of employment unless the employment as a casual employee was on a regular and systematic basis and during the period of service as a casual employee the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis as provided in s. 384(2)(a) of the Act. The Respondent’s submission that it is determinative that the Applicant’s employment ceased at the conclusion of each casual engagement, is misconceived. As a Full Bench of the Commission observed in Shortland v Smiths Snackfood Co Ltd:

[11] The criteria in s.384(2)(a) make it clear that s.384 does not proceed on the basis that a casual employee’s period of employment for the purposes of the unfair dismissal remedy starts and ends with each engagement as understood in the common law of employment.

[12] Moreover, it is more than tolerably clear that s.384 is concerned with how an employee’s period of employment is calculated for the purposes of s.382(a). Section 384(2) draws a distinction between a period of service and a period of employment. It also draws a distinction between a period of continuous service and a period of service: a period of continuous service can be made up of a series of periods of service, some of which count towards the period of continuous service (ie. where the conditions in s.384(2)(a)(i) and (ii) are met) and some of which do not (ie. where one of the conditions in s.384(2)(a)(i) or (ii) is not met). It is clear from the language of s. 384(2) that an employee may have series of contiguous periods of service with an employer that may count towards a single period of employment with that employer. Any given period of service in such a contiguous series of periods of service will count towards the employee’s period of employment only if the requirements in s.384(2)(a)(i) and (ii) are met. Section 384(2) is concerned only with determining which periods of service in such a contiguous series count toward the employee’s period of employment with the employer for the purposes of s.382(a).

[13] Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of ‘leave’ or an absence due to illness or injury.” 6

[54] That the Applicant was not a long term casual employee was also not relevant to the general protections application, contrary to the Respondent’s response to that application. In the present case, neither party appears to dispute that the Applicant’s employment with the Respondent has ended. The gravamen of the Respondent’s jurisdictional objections (other than the objection made on the grounds of multiple actions) is that the Applicant has not completed the minimum employment period. The determination of the objections will require consideration of when and in what circumstances the Applicant’s employment ceased. In its submissions and material filed in relation to the Applicant’s unfair dismissal application, including its response to the Applicant’s earlier general protections application, the Respondent has variously contended that:

•  The Applicant was not dismissed by the Respondent in May 2018 or at any time prior to that date and remained in the pool of casual employees who may be offered shifts by the Respondent;

•  The Applicant’s assertions that he was dismissed by email dated 30 May 2018 were false; and

•  The letter sent to the Applicant by email on 30 May 2018 (dated 24 May 2018) was sent so that there would be no doubt in the Applicant’s mind that he ceased to be an employee of the Respondent from 29 April 2018.

[55] I am not satisfied that I have all of the requisite material or the necessary assistance from the parties to form a view that the Applicant’s unfair dismissal application has no reasonable prospects of success and that it should be dealt with summarily under s. 587(1)(c). Neither party has been of assistance to the Commission. As previously stated, the Respondent has raised jurisdictional objections which are based on approbating and reprobating the Applicant’s assertions in an earlier general protections application. The Applicant has failed to comply with Directions of the Commission and when he has filed material it has not properly responded to the matters in issue. While this is partly because of the apparently contradictory position that the Respondent has taken, the Applicant’s conduct in his interactions with the Commission has left much to be desired. Notwithstanding this I have determined that I will not exercise discretion under s. 587 to summarily dismiss the Applicant’s unfair dismissal application.

[56] I also do not accept that the settlement agreement signed by the Applicant on 25 July 2018 provides a basis to dismiss the unfair dismissal application under any of the grounds in s. 587 of the Act. Notwithstanding that by virtue of the settlement agreement the Applicant releases and discharges the Respondent from any liability past, present or future, from all claims, suits, demands, actions or proceedings arising out of or connected with the Applicant’s employment, that release and discharge relates to a period of employment that ended, according to the Applicant, on 30 May 2018 and not to the present case in which it is alleged that the Applicant was dismissed on 18 September 2018.

[57] In relation to the Respondent’s application seeking that the Applicant’s unfair dismissal application be dismissed on the grounds in s. 725 of the Act, I do not accept that the Applicant’s unfair dismissal application is caught by that section. In short, the general protections application and the unfair dismissal application subject of the present proceedings relate to different alleged dismissals. In the general protections application the Applicant alleged that he was dismissed on 30 May 2018 in contravention of the general protections provisions of the Act. In the unfair dismissal application made on 5 October 2018, the Applicant alleges that he was dismissed on 18 September 2018 and that his dismissal was unfair.

[58] The settlement agreement in relation to the general protections application does not indicate an acceptance by either party of facts such as when the employment relationship ceased or even that it did cease. It is also apparent that the settlement agreement contemplated that the Applicant may be offered further casual employment. The settlement agreement records that the Applicant alleged that he was dismissed on 30 May 2018 in contravention of the Act and that the Respondent denied the allegations. The effect is that neither of the parties resiled from their positions but agreed to resolve the general protections dispute without admission of liability. The settlement agreement does not act as a bar to proceedings in relation to a further alleged dismissal at a later time based on alleged conduct on the part of the Respondent’s managers that occurred after the settlement agreement was reached.

CONCLUSION

[59] For these reasons I am not satisfied that the discretion to summarily dismiss the Applicant’s unfair dismissal application should be exercised under any of the grounds in s. 399A or s. 587 of the Act. It will therefore be necessary to deal with the Respondent’s jurisdictional objections. In dealing with those objections the Commission will be required to determine matters of law and fact on the basis of the material filed by the parties, including making findings about when and in what circumstances the Applicant’s employment ceased. While the contradictory assertions made by the Respondent have weighed against the exercise of the discretion to dismiss the Applicant’s unfair dismissal application, under 399A and s. 587, the Commission may accept one or more of those assertions in determining the jurisdictional objections.

[60] As previously noted the gravamen of those objections is whether the Applicant has completed the minimum employment period. To assist the parties in progressing this matter, I make the following observations:

•  The Applicant asserted in his general protections application made on 13 June 2018 that he commenced employment on 2 January 2018 and was dismissed by the Respondent on 30 May 2018;

•  The Applicant has not worked for the Respondent since 29 April 2018;

•  The Applicant now asserts in his unfair dismissal application that he commenced employment with the Respondent on 2 January 2018 and was dismissed on 18 September 2018.

[61] By virtue of ss. 382, 383 and 384 of the Act, the Applicant cannot make an unfair dismissal application unless, at the time of the alleged dismissal, he was a person protected from unfair dismissal. In order to be a person protected from unfair dismissal, the Applicant must have completed a minimum employment period of six months. As a casual employee, the Applicant must establish that his employment was on a regular and systematic basis and that during the period as a casual employee he had a reasonable expectation of continuing employment by the Respondent.

[62] On the basis of the material filed by the Applicant, it is my provisional view that he has not met the minimum employment period. I accept that it is arguable that the Applicant was employed by the Respondent from 2 January 2018 until 30 May 2018 – a period of some five months. It is not clear from the material filed by the Applicant – including the additional material filed on 6 March 2019 – that there was any employment relationship on foot between 30 May 2018 and 18 September 2018 when the Applicant asserts that he was dismissed by the Respondent.

[63] My provisional view is that there was no employment relationship between the Applicant and the Respondent for this period. If there was no employment relationship during this period the Applicant has not completed the minimum employment period with the Respondent and he cannot make an unfair dismissal application.

[64] I provide the Applicant with a final opportunity to make submissions about whether he has completed the minimum employment period and to identify in the material he has filed, emails or other documents that are relevant to the determination of this question. The Applicant is required to file further submissions on this point by 4.00 pm Friday 26 April 2019. The Applicant is also required to serve any further submissions on the Respondent. The Applicant should note that if he does not file further material by this time, I will determine the matter on the basis of the material currently on file and in accordance with my provisional view, dismiss his application on the grounds that he is not a person protected from unfair dismissal because he has not completed the minimum employment period required by the Act. If the Applicant provides a further response it should address the matters set out in the Full Bench Decision in Shortland extracted above.

[65] If the Applicant files further material in relation to this point, the Respondent has until 4.00 pm on Friday 3 May 2019 to file material in response. If I consider it necessary, or if either party requests it, I will list the matter for a further hearing in relation to the jurisdictional objection. In the absence of a further request for a hearing or in the event that I do not consider such hearing necessary, I will determine the matter on the basis of the material on the file including any additional material filed by the parties.

DEPUTY PRESIDENT

Appearances:

Mr A Brown on his own behalf.

Mr M Farkas on behalf of the Respondent.

Hearing details:

2019.

Brisbane.

March 1.

Printed by authority of the Commonwealth Government Printer

<PR706469>

 1   C2018/3216.

 2   [2013] FWC 3337.

 3   Ibid at [32] citing Deputy Commission of Patents v Board of Control of Michigan Technological University (1980) ALR 551 at 562 per Smithers J.

 4   [2003] AIRC 1391.

 5   VI 2875R of 1994.

 6   [2010] FWAFB 5709.