Mr Barry Lunnie v Site Services Group Pty Ltd

[2016] FWC 2320

[2016] FWC 2320

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.399A – Application to dismiss application for relief from unfair dismissal

Mr Barry Lunnie
v
Site Services Group Pty Ltd
(U2015/14068)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 15 APRIL 2016

Unfair dismissal application – non-appearance at arbitration hearing – s.399A application – power to dismiss Application for relief from unfair dismissal.

[1] This decision concerns an application under s.399A of the Fair Work Act 2009 (“the Act”) by the Site Services Group Pty Ltd (“the Employer”) seeking that the application made by Mr Barry John Lunnie, for an unfair dismissal remedy as a result of his termination from on 26 October 2015, be dismissed.

[2] The Employer made such an application because Mr Lunnie failed to attend an arbitration hearing in relation to his application set down for 30 March 2016.

[3] Mr Lunnie had previously caused both the abandonment of an earlier listed conciliation and an earlier arbitration hearing to be adjourned on short notice, because he was unavailable owing to work commitments. The hearing day of 30 March 2016 was listed in accordance with this request.

[4] By way of background, Mr Lunnie had performed duties as a permanent part-time (CW 2) Traffic Controller for the Employer since 8 September 2014. The latest site on which Mr Lunnie performed his duties was the Grocon site at 480 Queen Street, in Brisbane.

[5] Mr Lunnie was covered by the Site Services Pty Ltd enterprise agreement 2015 – 2018 (“the Agreement”).

[6] The Employer contends that Mr Lunnie’s employment came to an end for reasons of redundancy.

[7] The Employer appears to hold that it had lost a number of contracts and the contract in respect of the Grocon construction site was winding down. The Employer sought to manage the surplus employee on its books, so it says, by disengaging or terminating those employees, and this ultimately included Mr Lunnie’s position.

Jurisdiction

[8] The Full Bench in Granas v Berkley Challenge Pty Ltd [2015] FWCFB 1795 set out the jurisdictional requirements of s.399A as follows;

“[3] […] 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: …

(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.”

[4] Section 399A(1) provides, relevantly for present purposes, that the Commission ‘may’ dismiss an application if satisfied the applicant has unreasonably failed to discontinue the application after a settlement agreement has been concluded.

[5] In Mihajlovic v Lifeline Macarthur, a Full Bench of the Commission pointed out the following about the use of the word ‘may’ in a statute:

“Section 33(2A) of the Acts Interpretation Act 1901 (Cth) provides:

‘(2A) Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word may is used, the act or thing may be done at the discretion of the person, court or body.’

Section 40A of the [FW] Act provides that the Acts Interpretation Act as in force on 25 June 2009 applies to the [FW] Act, but that amendments after that date do not. Section 33(2A) came into effect on 18 December 1987, and therefore applies to the [FW] Act. Under s 2 of the Acts Interpretation Act, that Act applies inter alia to all Commonwealth Acts unless an Act is subject to a contrary intention”.

[6] The Explanatory Memorandum to the Fair Work Amendment Bill 2012 (Cth) in respect of now s.399A said:

“161. Item 2 inserts a new section 399A to enable the FWC to dismiss an unfair dismissal application where the FWC is satisfied that the applicant has unreasonably:

● failed to attend an FWC conference or hearing relating to the application

● failed to comply with an FWC direction or order relating to the application, or

● failed to discontinue the application after a settlement agreement has been concluded.

162. The power to dismiss an unfair dismissal application in these circumstances is not intended to prevent an applicant from robustly pursuing a legitimate unfair dismissal claim. Rather, the amendment is intended to address the small proportion of applicants who may pursue claims in an improper or unreasonable manner. This amendment responds to Panel recommendation 42.

163. In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant. Examples of when the FWC may exercise its discretion to dismiss an application under these provisions may include where:

● an applicant fails to attend an FWC proceeding relating to the matter without providing prior advice and/or without any reasonable excuse for their failure to attend, or

● an applicant continues to pursue an unfair dismissal application despite a settlement agreement having been concluded by the parties.

164. Note 2 to new subsection 399A(1) draws the reader’s attention to the FWC’s capacity to make an order for costs under new section 400A (explained below) if satisfied that the applicant’s failure caused the other party to the matter to incur costs.

165. New subsection 399A(2) provides that the power to dismiss applications is only exercisable on application by an employer.

166. Subsection 399A(3) and Note 1 to subsection 399A(1) make clear that new section 399A is not intended to limit the FWC’s general power to dismiss applications on grounds such as where the application is frivolous or vexatious or has no reasonable prospects of success under section 587. Similarly, item 3 inserts a note to subsection 587(1) to highlight the FWC’s power to dismiss an unfair dismissal application under new section 399A.

167. Item 1 of Schedule 11 inserts a new Schedule 3 into the FW Act. Item 11 of Schedule 3 provides for these amendments to apply in relation to dismissals that take effect after the commencement of this Part.”

[7] Since the Explanatory Memorandum refers to now s.399A ‘enabling’ the Commission to dismiss a UDR application, we do not consider s.399A is within the category of statutory provisions where the word ‘may’ is to be read as ‘must’.

[8] The discretion to dismiss an application under s.399A is only enlivened if the Commission is satisfied that the applicant has unreasonably failed to do one of the things referred to in s.399A(1)(a), (b) or (c). Accordingly, we consider s.399A(1)(c) provides the Commission with a discretion to dismiss a UDR application provided the Commission is ‘satisfied that the applicant has unreasonably… failed to discontinue the application after a settlement agreement has been concluded’.

[9] Section 399A(2) of the FW Act provides that the Commission may exercise its power under s.399A(1) on application by the employer. As the power in s.399A is only exercisable on application by an employer it is the employer who bears the burden of persuading the Commission that the requirements of s.399A(1)(a), (b) or (c) have been met and that the discretion should be exercised in favour of the UDR application being dismissed.”

Background

[9] On 4 November 2015 Mr Lunnie lodged an application for unfair dismissal remedy with the Fair Work Commission. On the application form he provided a personal email address and an email address belonging to his representative (as declared on the form) “Ms Tregaskis”, as a means of contact in relation to the application. Ms Tregaskis is believed to be Mr Lunnie’s’ partner.

[10] On 21 December 2015 the matter was listed for arbitration hearing on 3 and 4 March 2016 by the Unfair Dismissal Team, following an unsuccessful conciliation conference before a Fair Work Commission conciliator.

[11] The listing included Directions that stated the Applicant emailed to file submissions by 25 January 2016 and submissions in relation to the Jurisdictional Objection made by the respondent by 15 February 2016. This Notice of Listing was sent to both Mr Lunnie and his appointed agent Ms Tregaskis as well as the respondent.

[12] On 25 January 2016, following lodgement of the respondent’s submissions, the Unfair Dismissals Team contacted Mr Lunnie, in order to obtain his submissions. Mr Lunnie advised he thought they were not due until 28 January 2016, and then asked for an extension, in respect of which, it was advised he would need to make a formal request in writing. Notwithstanding this exchange, the applicant’s submissions were filed with the Commission at 11.00pm on 25 January 2016.

[13] On 10 February 2016 the matter was allocated to me, to undertake the listed Arbitration hearing.

[14] On 15 February 2016 the respondent filed its second group of submissions and these were forwarded to the Applicant, who was asked by Chambers if he would be filing further submissions.

[15] The Applicant replied on 15 February 2016 in the following way;

“[…], Thank you for your email, I have nothing further to add.

Regards,

Barry Lunnie”

[16] On Monday 22 February 2016, I caused my Associate to contact both Parties and asked if they would consider a telephone conference prior to the hearing in the hope of reaching a settlement before the imminent arbitration dates.

[17] The Applicant responded;

“Thank you for your email. I would be more than happy to attend a phone conference, however due to work commitments I would not be available until Thursday or Friday. As I have just gained employment after eight weeks of no work, I am unable to take any time off from my new job due to financial reasons. At this stage I'm not even sure I can attend the hearing next week. It would be of benefit to me if we could finalise this over the phone.”

[18] I thereafter caused to have sent to Mr Lunnie the following response:

“Dear Parties,

I refer to the email yesterday raising the possibility of a further conference.
Both parties have confirmed they wish to participate in a further conference in this matter.

Mr Jones is not available to participate this week. As such the Senior Deputy President proposes listing a telephone conference on Tuesday 1 March 2016.

Can both parties please advise whether any times (morning or afternoon) on 1 March 2016 are unsuitable? The Senior Deputy President would propose 10am but is happy to hear from the Parties if another time is more convenient.”

[19] The matter was subsequently listed (on 26 February 2016) for telephone conference at 9.00 am on 2 March 2016, a day before the arbitration was due to begin.

[20] On 1 March 2016 at 1.08pm Mr Lunnie sent the following email:

“Dear Your Honour,

I am unable to attend the phone meeting for the said hearing scheduled for 10am Wednesday March2nd. I have been directed by my new employer that I am to attend a medical in Brisbane at that time and further to that I am commencing work in Chinchilla early Thursday morning and will not be available again until late Friday evening. As my new position is casual I cannot afford to say no to work when it is offered to me.

I would appreciate is you could advise me on the best solution to this problem.

Regards,

Barry Lunnie.”

[21] The response I directed to Mr Lunnie on 1 March 2016 was as follows:

“Dear Mr Lunnie and Mr Jones

Re: U2015/14068 - Lunnie Barry John v Site Services Group

Regarding the above matter, Senior Deputy President Richards writes as follows;

“As the parties are aware, the conference for tomorrow morning (2 March 2016) along with the hearing set down for Thursday, 3 March 2016, will be cancelled. This is because Mr Lunnie has indicated he has work commitments this week and cannot attend.

This is a regrettable development in terms of the delay it will cause, and a new date for a conference and hearing will be communicated to the parties next week.

In the interim, I note from Mr Lunnie’s materials that he seeks two weeks ($4617.17) and his loading ($323.57) to resolve the matter.

Perhaps the parties might like to consider that as the basis for a settlement of the application. In the alternative, the employer might wish to put an alternative amount to achieve a resolution.

It is quite possible that this matter could be settled by way of email exchanges rather than finding new dates for conferences/hearings.

Perhaps the employer can let me know its disposition in respect of a settlement at first instance – whether it accepts Mr Lunnie’s offer or wishes to put an alternative proposal for Mr Lunnie to consider, or does not intend to enter into any commercial settlement at all.

If the employer’s position is the latter (that is, the employer does not wish to offer any commercial settlement and relies on its argument on the merits as it is entitled to do), it might be best to list the matter directly for hearing and dispense with finding a date for a conference.”

[22] The Respondent later indicated on 7 March 2016 that it would prefer not to reach a settlement but proceed to arbitration. The parties were then asked (by email sent on 7 March 2016) to provide details of their availability for arbitration. Mr Lunnie did not reply. The Respondent indicated on 8 March 2016 that it would prefer a date after 22 March 2016. Mr Lunnie was carbon copied into this correspondence, but again no response was received (this time in relation to the Respondent’s proposal).

[23] The matter was subsequently listed (on 11 March 2016) for the third time for a full day arbitration on 30 March 2016. The Notice of Listing was sent to all parties including Mr Lunnie and Ms Tregaskis.

[24] On the morning 30 March 2016 the respondent presented at the Commission for purposes of the arbitration proceedings. Mr Lunnie did not appear. Ms Tregaskis, Mr Lunnie’s agent, was contacted by telephone. She indicated that she was unaware of the listing. Ms Tregaskis also claimed that Mr Lunnie was working in a rural region and did not have telephone reception or an internet connection to access his email.

[25] Because Mr Lunnie did not appear at the arbitration proceeding or give any prior notice of his intention to not appear, the Respondent subsequently agitated that the matter be dealt with under s.399A of the Act.

[26] On 4 April 2016 I directed the following correspondence to Mr Lunnie:

“Dear Mr Lunnie

Re: U2015/14068 - Lunnie, Barry John v Site Services Group

As you may be aware the Respondent has recently made an application under s399A of the Fair Work Act 2009 (the Act) to dismiss your application for unfair dismissal.
Senior Deputy Richards advises the following, to assist him in determining the strength of that motion;

“In order to assist in determining the motion proposed by the Respondent, can you please provide submissions in relation to the following;

1. Can you please provide reasons for your non-attendance (and failure to advise the Commission of such non-attendance prior to the listed time) noting the claims made in the Respondent’s motion to dismiss (below)

2. Please provide information and evidence to support your claim that you did not have access to the internet and/or email services at your rural worksite.

3. Please explain why your inbox was not being monitored given that it was the means of contact provided to the Commission in relation to this matter – noting that Ms Tregaskis is recorded as your Agent on the Commission system.

4. Please provide supporting evidence in relation to your comment that you will “unable to commit to attending any hearings in the future” – noting the submissions made by the Respondent in particular in relation to the QCAT matter.

This is the third listing you have failed to attend, the first being the Conciliation listed for Wednesday 2 March 2016, and the second being the Arbitration listed for Thursday 3 March and Friday 4 March 2016. If I am not satisfied that there is a reasonable explanation for your non-attendance at the hearing the application will be dismissed.”

I have provided s.399A of the Act below for your convenience […].”

[27] On 11 March 2016, with no response having been received, I caused an email to be sent to the Mr Lunnie’s agent requesting a response.

[28] Later that same day, Mr Lunnie’s response was received in relation to my 4 April email enquiry. Mr Lunnie’s response read as follows:

“On the 30th of March 2016 I was working in the Scenic Rim at Boonoo Boonoo Falls 24 kms from Tenterfield N.S.W. and previous to this I was in Quilpie working for the week. As my job is working on the roads, I am generally in remote areas where there is no phone or internet service available.

Due to the fact that I have only been with my new employer for 4 weeks I am unable to request time off and would prefer that my new employer is not aware of my Unfair Dismissal case against Site Services Group.

Unfortunately both my wife Jane Tregaskis and I overlooked the emails sent to us regarding the hearing and it was never our intention to miss the hearing or to leave Site Services Group misinformed of our intentions.

I do intend to continue with my minor debt claim though QCAT and have informed them of my intentions earlier today.

Should you allow my case with Fair Work to continue my wife Jane Tregaskis will be readily available to attend any hearings or phone conferences? Unfortunately my current financial status is dire due to being out of work for such a long period of time and I cannot commit to taking any leave from my current role.”

Consideration

[29] Section 399A of the Act focuses attention (in the current instance) upon the conduct of the person in relation to not attending a hearing and failing to provide notice of non-attendance, and invites the Commission to evaluate the extent to which that conduct was reasonable in the circumstances.

[30] The only explanation Mr Lunnie provides for so failing to attend the hearing and notify of non- attendance is that both he and his agent (wife) both overlooked the numerous emails as sent to them in relation to the listing.

[31] This is not a reasonable explanation and provides no case in mitigation. Mr Lunnie and his agent\wife have been long aware of the proceedings being on foot, that efforts were being made to schedule dates in response to Mr Lunnie’s requests, and ought to have been motivated, therefore, to attend to their emails. The facts as set out above attest to the extent of activity around the application. Further, the matter was listed on 11 March 2016 for hearing on 30 March 2016. This is a very large window of time within which Mr Lunnie and\or his agent could have checked for emails about proceedings they had initiated and which were known to be active.

[32] Mr Lunnie and his agent did not check their emails, even though Mr Lunnie had expressly sought the Commission’s advice as to how to proceed, and must reasonably have anticipated a response.

[33] Further to this, there is no explanation provided by Mr Lunnie (or his agent) for having not checked for emails from 11 March 2016 onwards (until such time as my Associate contacted his agent on 30 March 2016).

[34] Finally, Mr Lunnie did not provide any substantial response to all of my inquiries above, such as to why – despite his asserted unavailability - he was available for a hearing in another jurisdiction on a particular day but could not attend a hearing in respect of the current application to the Commission.

[35] I do add that Mr Lunnie had indicated to me that this was an application that could have been determined off the documents. But this is not possible, as there are competing claims that need to be determined in his s.394 application, and these cannot be resolved other than through the examination of witnesses in order to establish the relevant factual matrix. Mr Lunnie has never been in a position to presume the matter was to be determined off the documents.

Conclusion

[36] Given the circumstances as established, it is open to me to exercise my discretion under s.399A of the Act to dismiss the application. I will exercise that discretion to dismiss Mr Lunnie’s application under s.399A of the Act: he has provided no explanation of substance for not attending the arbitration hearing on 30 March 2016 and not notifying the other side or the Commission. This accords with the underlying policy purpose of the section as set out in the Explanatory Memorandum cited above:

“In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant. Examples of when the FWC may exercise its discretion to dismiss an application under these provisions may include where:

● an applicant fails to attend an FWC proceeding relating to the matter without providing prior advice and/or without any reasonable excuse for their failure to attend […].

SENIOR DEPUTY PRESIDENT

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