Mr Brenchley v Spicers Australia Pty Ltd & Stockdale Personnel Pty Ltd
[2022] FWC 173
•25 January 2022
| [2022] FWC 173 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Brenchley
v
Spicers Australia Pty Ltd & Stockdale Personnel Pty Ltd
(C2021/7603)
| COMMISSIONER HARPER-GREENWELL | MELBOURNE, 25 January 2022 |
Application to deal with contraventions involving dismissal – Dismissing an application under s. 587.
Mr Scott Daniel Brenchley (Applicant) lodged an application with the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act). Mr Brenchley alleges he was dismissed from his employment on 18 October 2021.
The Respondents to the application are Spicers Australia Pty Ltd (Spicers) (First Respondent) & Stockdale Personnel Pty Ltd (Stockdale) (Second Respondent). Spicers objected to the application on the basis that it was not Mr Brenchley’s employer.
Stockdale also raised a jurisdictional objection alleging Mr Brenchley had not been dismissed, submitting his employment with Stockdale commenced on 7 June 2021 and he continues to remain employed by Stockdale. Stockdale submits Spicers could no longer offer Mr Brenchley shifts because he had not provided the required Covid-19 vaccination evidence or exemption. Stockdale submits that, should Mr Brenchley provide evidence of a Covid-19 vaccination or an exemption, he would be offered further work as it became available.
Factual Background
The factual background to this application is set out as follows. Mr Brenchley lodged his application on 5 November 2021. On 12 November 2021, after receiving correspondence from Mr Brenchley, the Commission provided him with the contact details of the Workplace Advice Service, a free legal service for eligible individuals and small business employers.
On 15 November 2021, Spicers filed a Form F8A response objecting to the application on the basis that it was not Mr Brenchley’s employer. In its response, Spicers submit that it engaged Stockdale for the purpose of supplying labour hire workers and that Mr Brenchley was employed by Stockdale.
On 18 November 2021, Stockdale filed its Form F8A response objecting to the application. Stockdale objected to the application on the grounds that Mr Brenchley was not dismissed. Stockdale submit that they are unable to offer Mr Brenchley any further shifts with Spicers until he receives the first dose of a Covid-19 vaccine or provides a medical exemption.
On 23 November 2021, the Commission wrote to the parties confirming the matter had been listed for a telephone conference with a conciliator on 16 December 2021.
On 13 December 2021, Spicers informed the Commission that, as it was not Mr Brenchley’s employer, it would not be attending the conference. The Commission also received correspondence from Stockdale confirming that it would participate in the scheduled conference. On that same day, Mr Brenchley sent correspondence to the Commission advising the Respondents that he was seeking legal advice. The parties were subsequently notified that the conference had been cancelled and the matter was allocated to my Chambers.
On 17 December 2021, Mr Brenchley sent correspondence to the Respondents stating that they had not offered him a settlement to the matter and he would be contacting his lawyers.
On 4 January 2022, the parties were advised the matter had been listed for a conference before the Commission to take place on 19 January 2022 and a notice of listing was sent to the parties.
From 5 January 2022, Mr Brenchley began to communicate with my Chambers, stating that he did not understand the point in pursuing his application and, without reasons, suggested the Respondents were not taking his application seriously. Mr Brenchley raised concerns that the particular individuals with whom he had an issue would not be involved. Again, Mr Brenchley wrote that he would be “talking to his lawyers”.
On 6 January 2022, my Associate wrote to Mr Brenchley informing him that if he was seeking to ascertain whether to discontinue or continue with his application, Chambers was unable to provide him with legal advice. Mr Brenchley was informed that, should he wish to proceed with his matter, the conference would proceed as scheduled.
After receiving a series of emails and phone calls from Mr Brenchley during which he raised concerns about his technical capabilities, he was provided with additional information about the Commission’s process and was provided with an opportunity to do a test dial prior to the conference to assist with resolving his technical issues.
On 14 January 2022, Mr Brenchley wrote “I want it in writing by both parties why I was bullied and what compensation is on offer or tge [sic] matter will go to court.”
On 17 January 2022, my Chambers sent correspondence to Mr Brenchley requesting his availability to attend a test dial prior to the conference and stating that the test dial was scheduled for 3:00pm on 18 January 2022. Mr Brenchley was advised the test dial was scheduled to assist him so that he could proceed with his matter. However, Mr Brenchley did not provide a response.
On 18 January 2022, my Associate attempted to contact Mr Brenchley by phone to confirm his availability for the conference scheduled to take place on 19 January 2022. Mr Brenchley emailed my Chambers stating he was unable to participate in a video conference. Consequently, Mr Brenchley was advised by email that the matter would proceed by phone conference at 10:00am on 19 January 2022.
On 19 January 2022, immediately prior to the commencement of the conference, the Applicant sent emails to my Chambers stating that he would like to reschedule the matter for an in-person conference and that he would contact the individuals with whom he had an issue directly. Mr Brenchley phoned my Chambers and reiterated this request. When my Associate attempted to respond to his request, the Applicant requested she put any response in writing and ended the call. Mr Brenchley was again informed that in the absence of being granted an adjournment the Conference would proceed as listed, that his attendance was required, and that his application may be dismissed if he did not attend.
Mr Brenchley did not attend the conference. My Associates’ attempts to contact Mr Brenchley prior to the commencement of the conference via phone and email were unsuccessful. In the circumstances, I determined to proceed with the conference without the Applicant, at which point I advised the Respondents that the matter would be listed for a non-compliance hearing. A notice of listing for a non-compliance hearing to take place on 20 January 2022 was issued to parties on that same day.
On 19 January 2022 at 8:51pm, Mr Brenchley sent an email to my Chambers inquiring as to whether the individuals he had named would be present at the hearing and requesting that my Chambers provide advice as to what legal action he could take. My Associate wrote to Mr Brenchley advising it would assist his matter if he attended the scheduled proceedings.
On 20 January 2022, prior to the commencement of the hearing my Associate made a number of unsuccessful attempts to contact Mr Brenchley by phone and email. Mr Brenchley did not attend the non-compliance hearing. Shortly after the hearing, Mr Brenchley again sent a series of emails to my Chambers, however, he did not provide reasons for his failure to attend the hearing. None of the correspondence received in Chambers addressed Mr Brenchley’s failure to comply with the directions of this Commission.
On 21 January 2022, correspondence was sent to Mr Brenchley from my Chambers. Mr Brenchley was again informed that there was a jurisdictional objection to his application and it was a requirement that the objection be determined before his application could proceed. To assist Mr Brenchley, he was again provided with information about general protections applications and the Commission’s processes. Mr Brenchley was also advised that he had previously been provided with information concerning the Workplace Advisory Service. Mr Brenchley was directed to provide reasons as to why he had failed to attend proceedings before the Commission by 12:00pm, 24 January 2022.
At 9:39am on 24 January 2022, Mr Brenchley wrote to my Chambers stating that he was consulting with his lawyers and would be in touch. Mr Brenchley was advised that if he wished to seek and extension of time for filing his submissions, he would need to provide his reasons in writing for the Commission’s consideration. At 11:54am Mr Brenchley provided, amongst other comments, the following response:
“I don't want to involve a current affair but I will expose this unfair process. Where is the duty of Care for both parties. What remuneration will Stockdale and Spicers compensate me so we don't have to take this further.”[sic]
No further correspondence was received by Mr Brenchley.
Consideration
“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.”
In McLeod v Kulgera Trading Company Pty Ltd[1] Vice President Catanzariti held that s. 587 was sufficiently broad to allow an application in a s. 365 matter to be dismissed for want of prosecution by the Applicant.
In Hosback v Programmed Skilled Workforce Limited, PPG Industries Australia Pty Limited[2] Commissioner Platt adopted the approach taken by Catanzariti VP and held that the principle of “a fair go all round” applies to both the employer and employee. The Commissioner found that the non-participation in the Commission’s processes had caused the Respondent to expend resources responding to a claim that the Applicant had no intention of prosecuting. The Commissioner held that “fairness, justice, equity and good conscience” warranted dismissing the application because the Applicant had demonstrated an unwillingness to prosecute his case.
I similarly adopt the approach of Vice President Catanzariti as followed by Commissioner Platt.
Conclusion
Mr Brenchley was directed to provide submissions as to why his application should not be dismissed and was informed that, should he fail to comply with those directions, I may consider dismissing the application on the materials before me. Mr Brenchley failed to comply with those directions.
Mr Brenchley, despite the assistance of the Commission, has failed to attend a scheduled conference and hearing in this matter. At various points, my Associates have explained the processes that the matter would follow and the necessity of a hearing to determine the jurisdictional objection. Efforts have been made by the Commission to inform and assist Mr Brenchley about the Commission’s processes to enable him to prosecute his matter, however, it appears Mr Brenchley has no intention to do so.
It appears from his correspondence Mr Brenchley was seeking to be compensated for his alleged dismissal by the Respondent, however he sought to do this by email whilst refusing to participate in proceedings before the Commission as directed. Should Mr Brenchley have taken the time to attend the conference on 19 January 2022, or the hearing on 20 January 2022, or accepted the assistance offered by the Commission, he would have had an opportunity to resolve his grievance with the Respondents who were willing participants in this matter. It is unfortunate in the circumstances that Mr Brenchley has shown such a reluctance to engage in proceedings before the Commission.
Mr Brenchley has been given ample opportunity to seek legal advice and progress his claim however he has failed to do so. I find that “fairness, justice, equity and good conscience”[3] warrant the dismissal of this application.
An Order dismissing Mr Brenchley’s application will be issued concurrently.
COMMISSIONER
Appearances:
K Woodman, first respondent.
J Butigan, second respondent
Hearing details:
2022.
Melbourne:
January 20.
[1] [2014] FWC 2112.
[2] [2021] FWC 6117.
[3] [2014] FWC 2112, [10].
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