Mr Bronson Howard v Tugun Surf Life Saving Club

[2020] FWC 6526

[2020] FWC 6526

FAIR WORK COMMISSION

DECISION

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

Mr Bronson Howard
v
Tugun Surf Life Saving Club
(U2020/12335)

COMMISSIONER HUNT BRISBANE, 4 DECEMBER 2020

Application for an unfair dismissal remedy – applicant shown no willingness to prosecute case – non-compliance with Commission directions – application dismissed.

[1] On 14 September 2020, Mr Bronson Howard made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009, alleging he was dismissed from his employment with Tugun Surf Life Saving Club (the Respondent) and that the dismissal was harsh, unjust or unreasonable.

[2] On 24 September 2020, the Respondent filed a Form F3 Employer Response to the application, raising a jurisdictional objection that there was no dismissal and that Mr Howard had resigned to pursue a full-time position as an apprentice carpenter.

Conciliation attempt

[3] The Commission records indicate that the matter was listed for a conciliation conference by telephone before a Commission Staff Conciliator on 2 October 2020. On this occasion, Mr Howard was granted an adjournment to the conference, in order for him to request time off work with his new employer to participate in a conciliation conference at a later time and date.

[4] The conciliation conference was adjourned to 12 October 2020, which Mr Howard failed to attend.

[5] On 15 October 2020, after the Commission made further attempts to contact Mr Howard, the Commission received email correspondence from Mr Howard advising that he was unable to answer his phone during working hours. He requested if the Commission could contact his father instead?

[6] On 22 October 2020, the Commission corresponded with the parties, seeking advice of their availability to participate in a relisted conciliation conference between 2 November 2020 and 13 November 2020. On 28 October 2020, Mr Howard received a follow up of this correspondence which provided:

“If the Fair Work Commission does not receive a confirmed date and time from you by close of business Tomorrow, Thursday, 29 October 2020, your matter will be referred to formal hearing” [original text and emphasis]

[7] On 29 October 2020, Mr Howard corresponded by email:

“Hi Tim I will be discussing with my boss whay time will be best for me I’ll be in contact with you shortly” [original text]

[8] No further correspondence was received by Mr Howard.

Allocation to chambers

[9] Following allocation to my chambers, I issued directions for the filing of materials in preparation for hearing.

[10] The matter was listed for telephone mention conference before me on 20 November 2020, with directions that Mr Howard file his evidence and submissions by no later than 27 November 2020. The matter was set down for hearing on 15 January 2021.

[11] When telephoned by my chambers for the mention conference on 20 November 2020, my Associate made two unsuccessful call attempts to Mr Howard, leaving one voicemail. Mr Howard returned the call, stating he was not ready to proceed for the conference. My Associate inquired whether he received the Commission’s correspondence about the listing, to which he replied “can I call you back I need to go” ending the call.

[12] Following the telephone conversation, correspondence was sent from my chambers including the following:

“The Commissioner confirms that in accordance with the directions also issued to the parties on 6 November 2020, your written materials are due to be filed next week, being Friday, 27 November 2020. If your materials are not received to Chambers, and copied to the Respondent, by this date, the Commissioner intends to list the matter for a non-compliance hearing where you will be at risk of having your application dismissed.

Please confirm receipt of this email and acknowledge that you will be ready to file your material to prosecute your application by 27 November 2020.” [original emphasis]

[13] Mr Howard did not file any materials to my chambers by 27 November 2020.

Non-compliance hearing

[14] Due to Mr Howard’s failure to participate in the abovementioned listings, and to file his materials without explanation, I listed the matter for a non-compliance hearing on 3 December 2020. At the non-compliance hearing the Respondent was represented by Mr Mark Lassman, General Manager. My chambers attempted to telephone Mr Howard twice without success, leaving one voicemail. I decided to exercise my discretion to conduct the hearing in Mr Howard’s absence.

[15] During the hearing the Respondent made an application pursuant to s.399A of the Act, together with oral submissions, seeking the Commission dismiss the application because Mr Howard has failed to attend a conference and/or a hearing held by the Commission in relation to the application, and failed to comply with a direction of the Commission relating to the application. At the hearing I also discussed the Commission’s powers to dismiss an application pursuant to s.587 of the Act.

[16] No further correspondence has been received from Mr Howard following the non-compliance hearing.

[17] Section 587 of the Act provides:

“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.”

[18] Section 399A of the Act is a specific provision in relation to unfair dismissal applications which also provides for the dismissal of applications in circumstances where the applicant has not acted to prosecute their case. Section 399A states:

“399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 1 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] Pursuant to s.600 of the Act, the Commission also has the power to determine a matter before it in the absence of a person who has been required to attend before it.

Consideration

[20] I note that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so. 1 Such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form of relief from a beneficial statutory provision.2

[21] The power to dismiss an application if the non-compliance was unreasonable is discretionary.

[22] The Commission’s obligations regarding the manner in which it must perform its functions and exercise its powers are set out in ss.577 and 578 of the Act. Relevantly, the Commission must act in a manner that:

•  is fair and just;

•  is quick, informal and avoids unnecessary technicalities;

•  is open and transparent; and

•  takes into account equity, good conscience and the substantial merits of the case.

[23] In considering the approach to be followed by the Commission where an applicant has failed to prosecute their case, the Full Bench in Viavattene v Health Care Australia 3 commented:

“[39] … 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…”

[24] In the present matter, Mr Howard has been given a reasonable opportunity to participate in proceedings and prosecute his case, however he has not done so. He has not responded to the written correspondence from the Commission sent via email since 29 October 2020, and has not responded to the voice messages left requesting that he do so other than to say that he is unable to speak. He has shown no willingness to prosecute his case and taken no steps to do so. If he had been unable to participate in telephone conversations during usual working hours, this has not prevented him from corresponding by email outside of his working hours or leaving a voice message to Chambers.

[25] In L. Sayer v Melsteel Pty Ltd, 4 the Full Bench held that s.587(1) provides for the dismissal of a matter where the applicant has failed to prosecute their case, without examining the merits of the application.

Conclusion

[26] In these circumstances, I am persuaded that I should exercise my discretion under s.587(1)(c) of the Act and dismiss Mr Howard’s application for want of prosecution. An Order to this effect will issue accordingly.

[27] Having decided to dismiss the application pursuant to s.587(1)(c), it is not necessary for me to determine the s.399A application.

COMMISSIONER

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 1   General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

 2   Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].

 3   [2013] FWCFB 2532.

 4   [2011] FWAFB 7498 at [19].