Mr Andrew Spicer v Bundaberg Sugar Ltd T/A Bundaberg Sugar

[2015] FWC 1880

[2015] FWC 1880

FAIR WORK COMMISSION

DECISION

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

Mr Andrew Spicer
v
Bundaberg Sugar Ltd T/A Bundaberg Sugar
(U2014/14966)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 18 MARCH 2015

Application for relief from unfair dismissal - application dismissed.

[1] The Applicant in this matter, Mr Andrew Spicer (“the Applicant”) lodged an application under s.394 of the Fair Work Act 2009 (“the Act”) on 10 November 2014. By that application the Applicant was seeking an unfair dismissal remedy arising from his dismissal by Bundaberg Sugar Ltd T/A Bundaberg Sugar (“the employer”).

[2] A conciliation conference before a Fair Work Commission staff conciliator was listed for 17 December 2014. The conciliation was not successful in resolving the matter, and the matter was referred for arbitration.

[1] Directions for filing materials were issued that same day, and the Applicant was required to file his witness statements and outline of submissions by 19 January 2015. These directions were sent to the Applicant directly by email, as well as to his representative (who ceased to represent the Applicant immediately following the conciliation).No material was received by from the Applicant by that date.

[2] On 22 January I wrote to the Applicant (via his email address) in the following terms:

Senior Deputy President Richards notes that as per the directions issued in this matter on 17 December 2014, the Applicant’s material (witness statements and brief outline of submissions) was required to be filed by the Applicant by Monday 19 January 2015.

No material has been received, nor any request for an extension in relation to the filing of this material.

If this material is not filed by midday on Tuesday 27 January 2015, it may not be accepted or taken into consideration. If late material is provided, please provide a detailed explanation for the delay in filing the material.

If no material  or detailed explanation is provided to the Commission (and copied to the Respondent) by midday Tuesday 27 January 2015, and no settlement negotiations are on foot, then parties are directed to s.399A(1)(b) of the Fair Work Act 2009, as it relates to non-compliance with directions:

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.

The Respondent would be at liberty in such circumstances to make application under s.399A of the Act. You would of course have an opportunity to be heard in respect of the determination of any such application as made by the Respondent.

In the event the Commission does not hear from you by midday on Tuesday 27 January 2015 and reaches a view that because of this you do not intend to press your application, His Honour will dismiss the application under s.587 of the Act, which provides as follows:

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.

[3] On 27 January the Applicant contacted my chambers by email requesting that my associate contact him. The following day my associate contacted the Applicant, who advised that he wished to pursue his application but was unsure of the requirements.

[4] On 30 January 2015, I relisted the matter for directions conference by telephone, on 12 February 2015. The notice of listing was sent to the Applicant via email and by express post to his notified postal address.

[5] The Applicant was not able to be contacted at the time of the telephone conference on 12 February 2015, despite multiple attempts to contact him on his mobile telephone number. A text message was also sent to the Applicant’s mobile telephone at the time.

[6] The Respondent subsequently sought that the Commission dismiss the application in accordance with s.399A(1)(a) and (b).

[7] On 13 February 2015, I wrote to the Applicant in the following terms:

I refer to Ms Curtis’ email below and yesterday’s conference, scheduled to commence at 2.30pm, which you did not attend.

I note that I made several attempts to contact you for the conference on your mobile telephone number, including leaving voicemails and sending a text message. The directions conference had been listed to clarify the status of your application given that you had made no submissions in accordance with the Directions issued on 17 December 2014.

With regards to the application Ms Curtis has made this morning, s399A of the Act is 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.

Can you please advise whether you have any objection to the employer making an application under s399A of the Act, to dismiss your unfair dismissal application.

Further, can you please advise chambers by email (as first instance) as to your reasons for not complying with the Directions, and not attending the conference. If we do not hear a response from you by cob Monday 23 February 2015, the Senior Deputy President will act on the materials before him only, and there will be a likelihood in such a case that your application under s.394 will be dismissed.

I will today post a copy of this email, along with Ms Curtis’ email of this morning, to your home address, and make another attempt to contact you by telephone.

[8] On 14 February 2015, the Applicant replied to the text message sent on 12 February 2015, advising that he “would like to participate.” My associate telephoned the Applicant on 17 February and he advised that he did wish to pursue his application, and did not have any particular reason for missing the telephone conference.

[9] On 27 February 2015 I wrote to the Applicant in the following terms:

You will recall my e-mail to you of 13 February 2015.  The text of that e-mail is set out further below.

As you understand, your former employer has made an application that I dismiss your application for an unfair dismissal remedy.

The former is employer has done this under s.399A of the Fair Work Act 2009.

The relevant sections of the Act is set out in my e-mail of 13 February 2015.

The reason the former employer has made the application is that you have failed to attend a conference conducted by the Commission in relation to your application and you have also failed to comply with a direction of the Commission relating to the application (in not filing your materials in compliance with the directions).

You will see that under s.399A of the Act that these are grounds for potentially dismissing your application.

Because your former employer has made this application you are required to do certain things if you wish to defend yourself against the application to dismiss your application.

The first thing you need to do is to provide a written statement to me explaining why you failed to attend the conference conducted by the Commission and why you failed to comply with the directions as issued.

If your former employer requests, it may require you to attend a hearing and to cross examine new in relation to the explanation you have provided for your conduct.

If you are unable to provide a reasonable explanation for this conduct I am likely to dismiss your application.

If you do not wish to provide a written statement you can instead indicate to me that you are prepared to give evidence verbally, under oath, in a hearing of the commission. This hearing will be conducted by telephone. Again, your former employer will have a right to cross examine you in relation to your claims as to why you did not attend the phone conference why you failed to comply with the directions in relation to your application.

What you need to do straight away is indicate to me whether you intend to make a written statement or would prefer to attend a hearing (by telephone) to give verbal evidence under oath. Please indicate to me no later than close of business Tuesday 3 March 2015 which of these approaches is preferable to you.

If you would prefer to provide a written statement, I will require that you provide the written statement no later than Monday, 9 March 2015.

If you do not intend to prosecute your application and wish to discontinue, please indicate this to me as promptly as you can.

[10] The Applicant replied by email on 4 March 2015 that he would like to provide a written response as to why he missed the deadline, and would forward his statement by the due date (being 9 March 2015). My associate replied to this email, advising that the Commission would await receipt of this statement by the date specified.

[11] No statement or further response was received.

[12] On 11 March 2015, I wrote to the email in the following terms:

Dear Mr Spicer

Senior Deputy President Richards has not received your written statement (about why you did not attend the telephone conference, and why you missed the earlier deadline to file material). The deadline for the statement had been 9 March 2015.

If no statement is received by COB on Friday 13 March 2015, your application for unfair dismissal remedy will be dismissed on the grounds of either or both of s.399A or s.587 of the Fair Work Act 2009.

[13] No response was received.

[1] In light of the Applicant’s failure to respond, I have determined to dismiss the application for want of prosecution pursuant to s.587 of the Act, which provides as follows:

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.

[2] The power to dismiss an application, of course, should only be used cautiously (though there is some commentary that goes further and suggests it should also only be used ‘sparingly’, which is a different notion altogether- see [2013] FWC 7080 at 39).

[3] In this instance, the Applicant has not evinced sufficient effort to continue to pursue the application he has agitated, despite the Commission’s approaches.

[4] Section 587 of the Act, by way of its language affords scope for the Commission to dismiss an application on such grounds, as made out on a cautious basis. The Federal Court has commented upon the “wide” scope of the words at s.587 of the Act in another context arising under the Act (see Australian Postal Corporation v Gorman [2011] FCA 975 (25 August 2011) at paragraph 33).

[5] In the Full Bench decision in Sayer v Melsteel[2011] FWAFB 7498,the Full Bench provided guidance on the approach to be followed in circumstances where an applicant failed toprosecute their case. The Full Bench noted (relevantly)(at [16]-[17]):

When, as in this case, the applicant fails to attend to prosecute their case and the matter is determined in their absence, assuming there is no denial of natural justice, it would be artificial and unproductive to apply the criteria in s.387 on a hypothetical basis involving speculation about the facts. While the applicant had filed material including witness statements, the fact that he did not attend to pursue his case meant that there was no requirement to take that material into account. The respondent's case was, in effect, unchallenged. Furthermore, the respondent clearly had a defence of substance. If the Commissioner had concluded that the respondent's case was frivolous or completely lacking in substance it would have been open to him to take another course, but that is not a matter we need to explore.

It may be prudent, where a matter is determined in the absence of the applicant, for the tribunal to satisfy itself that the respondent had some defence to the action. The Commissioner's decision is consistent with that approach.

[6] In the circumstances now before me, the employer has provided a response to the Applicant’s claims by way of its Form F3 and substantial additional material filed prior to the listed directions conference. The employer essentially argues that the Applicant did not meet the standards of performance or behaviour expected of him, and was therefore subjected to fair performance management processes, which resulted in his termination. The employer cited poor performance and persistent lateness for duty (and failure to advise of such). The employer, on the face of its claims, has “a defence of substance” against the claims, or at least “a defence to the action”.

[7] The Full Bench in Viavattene v Health Care Australia[2013] FWCFB 2532 (at [39]) commented on the circumstances where an applicant evinces “an unwillingness to participate in proceedings”, and did so in the immediate context of a discussion of the authority in Sayer v Melsteel:

[...] There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).

Conclusion

[8] I exercise my discretion in this regard in the knowledge that the Respondent’s materials lodged indicate, even if at the prima facie level, a defence against the claims as made. The Applicant has failed to prosecute his claims despite being afforded ample opportunity to do so. I dismiss the application for those reasons.

SENIOR DEPUTY PRESIDENT

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