Mr Blake Miles v McConnell Dowell Constructors (Aust) Pty Ltd and Geosea Australia Pty Ltd T/A McConnell Dowell Geosea Joint Venture

[2014] FWC 9158

[2014] FWC 9158

FAIR WORK COMMISSION

DECISION

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

Mr Blake Miles
v
McConnell Dowell Constructors (Aust) Pty Ltd and Geosea Australia Pty Ltd T/A McConnell Dowell Geosea Joint Venture
(U2014/3604)

COMMISSIONER SPENCER BRISBANE, 16 DECEMBER 2014

Application for unfair dismissal remedy - application to dismiss pursuant to s.399A

[1] This decision relates to an application made by Mr Blake Miles (the Applicant) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (the Act) against McConnell Dowell Constructors (Aust) Pty Ltd and Geosea Australia Pty Ltd T/A McConnell Dowell Geosea Joint Venture (the Respondent).

[2] The Respondent has applied for the Applicant’s application for an unfair dismissal remedy (the substantive application) to be dismissed pursuant to s.399A of the Act.

Legislative scheme

[3] In relation to the application to dismiss the substantive unfair dismissal application, s.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.”

Background

[4] The Respondent has applied for the Commission to dismiss the substantive application pursuant to s.399A(1)(b) for failure to comply with Directions of the Commission.

[5] The F2 application for unfair dismissal remedy was filed by the Applicant on 3 January 2014 and was sent to the Commission from the Applicant’s personal email address. The application listed a legal service and also a Union as his representatives, but only provided contact details for the legal service. The listing for conciliation before a Fair Work Commission conciliator was sent to the manager of the legal service and the Applicant’s home address. On 18 February 2014, the Applicant’s Union filed a Form F53 Notice of Representative Commencing to Act which did not nominate a contact for the Union representative, and which provided the Union’s general email address.

[6] An industrial officer of the Union (Industrial Officer 1) represented the Applicant at a conciliation conference by a Fair Work conciliator on 25 February 2014.

[7] On 3 April 2014, a telephone conference was held (by consent of the parties) before the Commission as presently constituted. The Notice of Listing was sent to the general email address and fax number of the Union and the email address of Industrial Officer 1. The Applicant was represented by Industrial Officer 1 at this conference.

[8] The dismissal of the Applicant relates to the imposition of a traffic infringement for speeding being issued for the driver of the company vehicle. The Respondent alleged the Applicant had authority to use the company vehicle at the stated time of the speeding offence. Industrial Officer 1, in representing the Applicant, denied the Applicant had custody of the vehicle at the time (it was alleged the Respondent had a swipe out system for vehicles and these were often passed between employees), and that it was an alternative person driving and the Applicant’s statutory declaration for the fine would declare such. Industrial Officer 1 indicated that this information would be sought and a further conference set to provide this information, with a view to resolving the matter.

[9] A further conference was held on 15 April 2014. The Notice of Listing was sent to the fax number of the Union and the email address of Industrial Officer 1. The Applicant was represented in this conference by another industrial officer (Industrial Officer 2), who did not have any instructions in relation to the further information regarding the driving offence or statutory declaration, that it was agreed would be relied on in the conference. Industrial Officer 2 indicated he would seek instructions.

[10] On 29 April 2014, the Respondent’s representative emailed Chambers and Industrial Officer 2 at his direct email address to indicate that no correspondence had been received from the Applicant or his representative Union on his behalf, as per the agreed course in the 15 April 2014 teleconference, that is, that Industrial Officer 2 would indicate if it was the Applicant’s intention to proceed to arbitration and provide details of the number of witnesses and hearing location and any unavailability regarding hearing dates. The Respondent indicated their proposed number of witnesses and location preference for the hearing and unavailability, and also stated that if the Applicant did not comply with the request to provide the information in a timely manner, that the Respondent requested that the Application be dismissed for the Applicant’s failure to prosecute his claim.

[11] On 1 May 2014, Chambers emailed Industrial Officer 2 at his direct email address requesting the Applicant to advise on the current status of the matter. Industrial Officer 2 promptly replied from his email address, indicating the Applicant’s intention was to proceed to arbitration and that it was anticipated two witnesses would be called for the Applicant and that Brisbane would be the most appropriate hearing location.

[12] On 13 May 2014, Directions were issued to the parties for the provision of materials in relation to the substantive application, indicating the matter was to be listed for hearing after the receipt of submissions and evidence filed in accordance with the Directions. The Directions were sent to the email address of Industrial Officer 2 who had been communicating with Chambers and the Respondent on behalf of the Applicant. As per the Directions, the Applicant’s representative was to file material on behalf of the Applicant by 27 May 2014.

[13] The parties were also advised that late submissions would not be accepted, as follows:

“[11] The Commission will not accept material that is filed after the expiry of a timeframe unless an extension has been sought and granted by the Commission prior to the expiry of that timeframe.

[12] Requests for an extension of time must be made to the Commission in writing in a timely manner and specify substantial grounds. Parties must not assume an extension will be granted...”

[14] On 16 May 2014, an administrative officer of the Union representing the Applicant emailed Chambers to ask when Directions and a hearing date would be set.

[15] On 29 May 2014, the Respondent’s representative emailed Chambers asking if the Applicant had filed materials in accordance with the Directions, as no material had been received by the Respondent.

[16] On 30 May 2014, Chambers emailed Industrial Officer 2 at his direct email address to forward the Respondent’s email of 29 May 2014 and to confirm that no material had been filed on behalf of the Applicant. This email was copied to the Respondent’s representative.

[17] The Respondent’s representative indicated by reply email, with a copy to the direct email address of Industrial Officer 2, that the Respondent sought to apply under s.399A for the Commission to dismiss the application and queried the appropriate method of filing the application and whether their email was sufficient for this purpose. Chambers indicated by reply email on 30 May 2014 that a Form 1 application was appropriate. The Respondent’s email and Chambers’ response was copied to the email address of Industrial Officer 2.

[18] On 3 June 2014, the Respondent filed a Form F1 containing a section 399A application to dismiss the Applicant’s substantive application. This was filed by email to Chambers with a copy to the email address of Industrial Officer 2.

[19] On 4 June 2014, Chambers sent an email to the Applicant’s representatives at the email addresses of Industrial Officer 1, Industrial Officer 2 and the general Union email address. This email referred to the application to dismiss filed by the Respondent and set out s.399A of the Act. The email included the following:

“In considering whether to dismiss the application pursuant to s.399A(1)(b), the Commissioner provides an opportunity to the Applicant to provide any reasons for the failure to comply with the Directions of 13 May 2013 (sic), or to seek an extension of time pursuant to the provisions relating to non compliance with the Directions. Any such reasons must be accompanied by relevant evidence of such. The Applicant must file, and serve, any reasons for the failure to comply by no later than close of business on Wednesday, 11 June 2014. If no response is received by this time the Commission will consider that the Applicant does not wish to be heard in relation to the application to dismiss and may decide the application to dismiss on the basis of the material presently before the Commission...”

[20] On 4 June 2014, Chambers received an email from the other industrial officer (Industrial Officer 1) stating that the Applicant’s records did not show receipt of the Directions of 13 May 2014 and that an administrative officer had emailed enquiring as to Directions on 16 May 2014, and further, that their records did not show receipt of any correspondence from the Respondent regarding the alleged failure to comply with the Directions.

[21] On 5 June 2014, Chambers sent an email to the parties outlining the emails that were sent to the Applicant’s representative (Industrial Officer 2) on 13 May 2014, 30 May 2014 and the email in reply sent by the Respondent on 30 May 2014. This email sent by Chambers on 5 June 2014 further maintained the opportunity to provide submissions in relation to the failure to comply with Directions or to seek an extension of time to file material, by 11 June 2014, as follows:

“The Commissioner affords you the opportunity to provide further submissions in relation to the failure to comply with the Directions, or to seek an extension of time pursuant to the provisions relating to non compliance with the Directions.

Any further submissions must be accompanied by relevant evidence of such. The Applicant must file, and serve, any further submissions in relation to the failure to comply by no later than close of business on Wednesday, 11 June 2014...”

[22] On 5 June 2014, Industrial Officer 1 indicated by email to Chambers and the Respondent, that Industrial Officer 2 did in fact receive the email containing the initial Directions on 13 May 2014 but that it was overlooked. Industrial Officer 1 stated that the contact email for the Applicant provided on the initiating application was the general email address, not the direct email of Industrial Officer 2. Industrial Officer 1 also stated that the Industrial Officer 2 did not receive the email from the Respondent’s representative on 30 May 2014. Industrial Officer 1 requested further Directions in relation to the substantive matter to be issued given the administrative error in overlooking the Directions of 13 May 2014 and that no response was received to the email of 16 May 2014. This email was received subsequent to the Commission’s correspondence seeking the Applicant’s submissions and evidence in relation to the non-compliance. No such material was received by the due date.

[23] On 17 July 2014, Chambers sought the parties’ views on listing the matter for teleconference given the Applicant’s non-compliance with Directions.

[24] On 21 July 2014, a conference was held in the matter and Industrial Officer 1 appeared on behalf of the Applicant.

[25] On 22 July 2014 Chambers received an email from Industrial Officer 1 indicating that the Applicant had filed a statutory declaration with the police (relevant to the issues in the substantive matter) and that the Applicant was available for further conference from 25 July 2015.

[26] On 22 July 2014, Chambers sent an email to the parties proposing to list matter for 31 July 2014 (given the reference to the availability of the material the parties had originally sought in the substantive matter) and asking for parties to confirm this course.

[27] On 25 July 2014, the Respondent’s representative emailed Chambers and indicated that the Respondent wished to pursue the application to dismiss on the basis that the Applicant had not actively pursued his matter and that his representative has not adequately explained the Applicant’s failure to comply with the Directions. It was stated that the Respondent’s position was that there was no merit in any further conciliation of the matter, and if the Commission was not minded to strike out the application, then the Respondent submitted that the matter should be listed in Perth for hearing. This email was copied to the email address of Industrial Officer 1.

[28] On 31 July 2014, given the correspondence, it was confirmed that the Commission would not proceed with the conference.

[29] On 7 August 2014, an administrative officer of the Union confirmed by email the information communicated to the Commission that an offer to settle the matter had been rejected by the Respondent, and that the Applicant was based in Western Australia but the carriage of the matter was retained by the Queensland branch of the Union.

Consideration

[30] The Respondent submitted that the Applicant had unreasonably failed to comply with a Direction of the Commission relating to the filing of material in relation to the unfair dismissal application. The Respondent submitted that the Directions issued on 13 May 2014, which provided for the Applicant to file material by 4:00pm on Tuesday 27 May 2014 were not complied with. The Respondent submitted that the Directions stated that the Commission will not accept material that is filed after the expiry of a timeframe unless an extension has been sought and granted by the Commission prior to the expiry of the timeframe. The Respondent submitted that, as of 3 June 2014, no material had been filed by the Applicant and the Respondent had not sought to have the timeframe for filing of material extended.

[31] Following the conference held on 21 July 2014, the Respondent sought to pursue the application to dismiss on the basis that the Applicant has not actively pursued his application and the Applicant’s representative had not adequately explained the Applicant’s failure to comply with the Directions. The Respondent submitted that the Applicant had not attended any of the conferences, and failed to attend the conference on 21 July 2014.

[32] The Respondent submitted by email on 25 July 2014 that the Applicant had failed to comply with the Commission’s direction that the Applicant must file written submissions in relation to the failure to comply or to seek an extension of time in which to do so. The Respondent contended that the Applicant was represented at all times and therefore was “well appraised that failure to attend to any steps required by the Commission (most notably when requested by the Commission in writing after the Respondent filed its strike out application) require strict compliance.”

[33] There are two emails from Industrial Officer 1 in relation to the reasons for the non-compliance with the Directions. The first email indicated that the Directions were not received and that no response was received to the enquiry by the administrative officer on 16 May 2014. Further, Industrial Officer 1 asked that the Respondent’s application to dismiss be dismissed and further Directions be issued given the non-receipt of Directions or receipt of any correspondence from the Respondent relating to failure to comply with the Directions.

[34] The second email acknowledged that the Directions were received by Industrial Officer 2 but were overlooked due to administrative error. It was submitted on behalf of the Applicant that, in the circumstances of the administrative error and that no response was received to the email of 16 May 2014, further Directions should be issued in relation to the filing of all material to be relied upon.

[35] While it was submitted by Industrial Officer 1 that the email of 13 May 2014 was overlooked, it was stated that no correspondence from the Respondent’s representative regarding the failure to comply with the Directions was received by Industrial Officer 2. Industrial Officer 1 stated that Industrial Officer 2 had advised him that he did not receive the email from the Respondent’s representative on 30 May 2014.

[36] It should be noted that on 30 May 2014, Chambers forwarded the Respondent’s email of 29 May 2014 to Industrial Officer 2. A further email was sent by the Respondent (and copied to Industrial Officer 2) on 30 May 2014 seeking to dismiss the application. Chambers replied to this email and copied Industrial Officer 2 on 30 May 2014. There was no explanation provided by Industrial Officer 1 as to the two emails sent and copied to Industrial Officer 2 (at the same email address as previously used) by Chambers on 30 May 2014.

[37] Industrial Officer 1 stated that the contact email address for the Union provided on the initiating application was the general address. However, while the initiating application mentions the Union, another organisation and their address and contact details are also listed on the F2 application. The F53 Notice of Representative Commencing to Act lists the Union as the contact and provides the general email address. However, correspondence was sent to Industrial Officer 2 at his email address, to which he had replied promptly, less than two weeks before the Directions were sent. During the correspondence between the parties and Chambers until 5 June 2014, there was no request that only the general email address be used for correspondence. Both Industrial Officers had sent and received information on this application from their respective email addresses.

[38] Industrial Officer 2 emailed Chambers and the Respondent’s representative on 1 May 2014 to indicate that it was the Applicant’s intention to proceed to arbitration. Directions were then issued and emailed to Industrial Officer 2. By requesting that the matter proceed to arbitration, Industrial Officer 2 should have been expecting Directions to issue, and given the most recent correspondence had come from the email of Industrial Officer 2, it would have been expected that the return Directions would issue to that address. That is what occurred, and as later acknowledged by Industrial Officer 1, Industrial Officer 2 “overlooked” them.

[39] The administrative officer of the Union contacted Chambers on 16 May 2014 asking when Directions would issue. It appears that the email account of Industrial Officer 2 was not checked for Directions before or after the enquiry was made. No further enquiries in relation to the Directions were made.

[40] The Applicant was invited to provide material (including evidence) for the consideration of the application to dismiss. Two emails were received from Industrial Officer 1. Whilst the Union was aware that the Commission had a dismissal application to be dealt with, no written submissions referring to case authority on administrative error or statements or evidence were filed. The Applicant was also invited to seek an extension of time for the filing of materials. The emails provided by Industrial Officer 1 did not respond to the dismissal application and asked that further directions should issue for the filing of all material to be relied upon.

[41] Aside from the failure to comply with the Directions, the Respondent has also submitted that the Applicant had failed to attend at any of the conferences. In the three conferences held before the Commission as presently constituted, the Applicant was represented by Industrial Officer 1, Industrial Officer 2 and Industrial Officer 1 respectively. A fourth conference was proposed to be held in order that the Applicant could be in attendance. It was not held due to the fact that the Respondent saw no merit in proceeding with the conference and wished to pursue the application to dismiss. The Respondent expressed their concern at the escalation of costs.

Conclusion

[42] The first reason given on behalf of the Applicant for the failure to comply with the Directions was that they were not received. Subsequently, it was confirmed that they had been overlooked and that the Union had not received a response to their email. Both industrial officers are experienced and work for a well resourced Union. It is unreasonable that no further enquiry was made to the Commission in relation to the Directions, or searches conducted in the industrial officers’ email to confirm non-receipt. Further, the Union should have been paying careful attention to this matter given that Industrial Officer 2 failed to comply with the agreed course reached after the conference on 15 April 2014, in that no communication regarding the Applicant’s intention to proceed with the matter was sent to Chambers until after the Respondent’s representative had raised the lack of correspondence by the agreed date.

[43] Industrial Officer 2 was aware that the application to dismiss had been filed and was on notice that submissions would be sought. The Applicant was given various opportunities to file submissions and evidence. No statements were provided by the relevant industrial officer, nor has there been any confirmation by the Applicant that he wishes to pursue his application, which would have been reasonable given his lack of attendance at the conferences and the filing of the application to dismiss.

[44] There has been an unreasonable failure on behalf of the Applicant to comply with Directions of the Commission and to prosecute the application.

[45] Therefore, the application filed pursuant to s.394 of the Act, is dismissed pursuant to s.399A(1)(b) of the Act.

[46] I Order accordingly.

COMMISSIONER

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