Mr Frank Montemurro v Transit Systems West Services Pty Ltd

[2024] FWC 2515

[2024] FWC 2515

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Mr Frank Montemurro
v

Transit Systems West Services Pty Ltd

(C2024/3234)

DEPUTY PRESIDENT CROSS SYDNEY, 19 SEPTEMBER 2024

Application to deal with contraventions involving dismissal

1. On 17 May 2024, Mr Frank Montemurro (the Applicant) lodged an application (the Application) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act) alleging that Transit Systems West Services Pty Ltd (the Respondent) had dismissed the Applicant from his employment in contravention of Part 3-1 of the Act.

1. On 19 June 2024, the matter was allocated to the Chambers of Deputy President Masson. The matter was listed for Hearing of the Jurisdictional Objection raised by the Respondent, being that the Applicant was not dismissed. In the Notice of Listing for this Hearing, Deputy President Masson made the following directions (the DP Masson Directions):

[1]      Transit Systems West Services Pty Ltd (the Respondent) is directed to file with the Fair Work Commission and serve on Mr Frank Montemurro (the Applicant), an outline of submissions, witness statements and other material upon which it intends to rely on in support of the jurisdictional objection that the Applicant was not dismissed (the jurisdictional objection) on or by Monday, 1 July 2024.

[2]      The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions, witness statements and other material upon which he intends to rely on with regards to the jurisdictional objection on or by Monday, 8 July 2024.

[3]      The matter will be listed for Hearing at 9:00AM on Monday, 5 August 2024 by Video using Microsoft Teams.

1. The DP Masson Directions also relevantly stated:

NON-COMPLIANCE WITH THESE DIRECTIONS

[9] The Deputy President will not accept material that is filed after the expiry of a timeframe unless an extension has been sought and only if granted by the Deputy President prior to the expiry of that timeframe.

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

1. The Applicant did not comply with the DP Masson Directions. On 9 July 2024, the Chambers of DP Masson wrote to the Applicant as follows:

Dear Mr Montemurro,

In accordance with the Directions issued on 24 June, you were due to file relevant material in relation to the jurisdictional objection by close of business on 8 July.

We note that material has not been received by Chambers nor an extension of time within which to file sought in accordance with the Directions.

You must file the relevant material as soon as possible.

Alternatively, if you wish to withdraw your application, you may do so by advising Chambers.

1. On 11 July 2024, the Chambers of DP Masson wrote to the parties as follows:

Dear Parties,

The Applicant contacted Chambers via telephone on 10 July 2024 seeking
guidance about his matter. However, he was requested to send any
questions in writing to Chambers. The Applicant has not yet done so.

The Deputy President, as well as his Associate are currently on leave until 19
July 2024 (inclusive). Therefore, if the Applicant fails to file his material, the
Deputy President will deal with the non-compliance upon his return.

The Applicant is directed to review the Deputy President’s Directions
(attached) and the Commission’s General Protections Benchbook for
guidance: General protections benchbook | Fair Work Commission
(fwc.gov.au)

1. On 26 July 2024, the Chambers of DP Masson again reminded the Applicant that he had failed to file any material on which he may rely on at the hearing of the matter. DP Masson went on the consider a request from the Applicant to attend the hearing by telephone, and the position of the Respondent that an in-person hearing was desirable. The Deputy President determined to transfer the file to a Sydney based member of the Commission for an in-person hearing and the hearing on 29 July 2024 was vacated.

1. On 5 August 2024, after the matter was allocated to my Chambers, I issued the following directions (the DP Cross Directions):

DIRECTIONS

1. Mr Frank Montemurro (the Applicant) is directed to file with the Fair Work Commission, and serve on Transit Systems West Services Pty Ltd (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in respect of the Jurisdictional Objection raised in this matter by 4pm on 19 August 2024.

2. The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in relation to the Jurisdictional Objection raised in this matter by 4pm on 2 September 2024.

3. The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 9 September 2024

4. Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4 pm on 2 September 2024.

Notes:

a) If you wish to vary these directions, you can make an application to do so in writing directly to the chambers of Deputy President Cross at: [email protected]

b) The Applicant and the Respondent should attempt to resolve this matter prior to the time for compliance with these requirements to minimise their costs in this matter.

c) Any request for an extension of time for the filing of materials, or for an adjournment of the arbitration hearing, must be made as soon as practicable and must be based on substantial grounds. Noncompliance with directions will not otherwise be tolerated.

d) Parties should liaise as to the provision and use of court books, exhibit bundles and authority bundles. Any materials must be supplied to the Chambers of Deputy President Cross 3 days prior to the listing.

Please review the Fair Work Commission online resources if you require further information.

· Information about how the Commission works can be found here: How the Commission works | Fair Work Commission
· Information about communicating with Chambers and Commission procedures is available here: Practice note: Fair hearings | Fair Work Commission
· Information on Coverage for General Protections Applications can be found here: Coverage for general protections | Fair Work Commission

1. The Applicant did not comply with direction 1 of the DP Cross Directions. At 4.42pm on 19 August 2024, my Chambers forwarded the following correspondence to the parties:

Dear Parties,

I note the Applicant has not complied with Direction [1] of the Commission’s Directions issued on 5 August 2024 (Listing Directions). Please see below Direction:

1. Mr Frank Montemurro (the Applicant) is directed to file with the Fair Work Commission, and serve on Transit Systems West Services Pty Ltd (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in respect of the Jurisdictional Objection raised in this matter by 4pm on 19 August 2024.

The Applicant is required to email Chambers by 4:00pm on 21 August 2024 with their submissions and other materials, or otherwise advise the Commission of any request for extension, discontinuance, or other matter affecting submission.

I draw the parties’ attention to Note c) of the Listing Directions, reproduced below:

c) Any request for an extension of time for the filing of materials, or for an adjournment of the arbitration hearing, must be made as soon as practicable and must be based on substantial grounds. Noncompliance with directions will not otherwise be tolerated.

Please note that any materials must be filed with the Commission via email to this
address, being [email protected].

1. On 21 August 2024, after receiving a telephone call from the Applicant, my Chambers issued the following correspondence to the parties:

Dear parties,

I refer to the matter above and to a phone call with Mr Montemurro.

Mr Montemurro indicated he wishes to continue with his application. Deputy President Cross has advised you cannot only rely on oral submissions, you must provide an outline of your case. The Respondent must be provided with access to this prior to the Hearing but by no later than 4:00PM on 26 August 2024.

The following organisations may be able to assist with providing legal advice or representation:

• LawAccess NSW provides legal information on various claims: click here.
• The Law Society of NSW has a website aimed at assisting parties find appropriate representation, it can be accessed here: click here.
• Community Legal Centres NSW has a website aimed at connecting parties with suitable community legal centres, it can be accessed here: click here.

1. On 27 August 2024, my Chambers issued the following further correspondence to the parties:

Dear Mr Montemurro,

I refer to the above matter, and in particular, to the Directions contained within the Notice of Listing, which outlines the timeframe for the filing of your submissions and other documents. That Notice, containing the Directions, is again attached for your reference.

Chambers has contacted you via email and phone in relation to your non-compliance with Direction 1. Chambers has not received a request for an extension of time for filing those materials, or other communication in reply to this correspondence.

I further draw your attention to Note c) as found in the attached Listing, advising that noncompliance with directions will not be tolerated.

Please be advised that, should you not respond to this communication, file your materials, or attend the Hearing as listed, that your matter may be determined in the absence of your materials, and this may result in your matter being dismissed.

You are required to either:
• file and serve your submissions and other documents as outlined in Direction 1; or
• advise that you do not wish to file any materials; or
• make a request for an extension of time within which to file your materials, including any reason and evidence to support;

by 4:00pm on 28 August 2024

1. On 28 August 2024, the Applicant wrote to my Chambers as follows:

To chambers cross
As per conversation with Nathan on Friday the 23rd of August. I can not currently submit any documents at present time . It has been brought to my attention that false statements submitted by transit system which currently have been submitted. As per witnesses are currently employed by Transit System Leichhardt Depot will not appear for fear that loosing there employment at Leichhardt Depot.
I will able to put my case forward in a phone link when the date has been finalised.
Feel free to contact me or by email when hearing date and time will be listed.
As previously advised I’m only available by phone call on the day required.
Regards Frank Montemurro

1. The Respondent foreshadowed an application to dismiss the Application due to a failure to comply with directions on five occasions. On 29 August 2024, my Chambers then sent to following correspondence to the parties:

Good morning parties,

Mr Montemurro, please see attached again for your reference the Listing with Directions sent to you on 5 August 2024.

The matter is listed for an in-person Hearing at 80 William Street on Wednesday, 18 September 2024 it will not be held over the telephone.

The Respondent is requested to file a Form F1 outlining their Application to Dismiss.
Mr Montemurro, you are directed to file your material in support of your application (addressing the Jurisdictional Objection raised) by no later than 4:00PM this afternoon or else advise the Commission that you do not intend to rely on anything.

1. On 9 September 2024, my Chambers then sent to following further correspondence to the parties:

The Respondents Application to Dismiss will be dealt with at the commencement of the in-person Hearing listed for next Wednesday. Again, please see attached the Notice of Listing sent to all parties on 5 August 2024. Attendance is compulsory.

1. The Applicant and the Respondent attended the Hearing on 18 September 2024. At the commencement of the hearing the Applicant sought an adjournment stating:[1]

I've had multiple phone calls with multiple different people regarding this situation, and the last one's been on Friday, but I haven't been able to submit any material through the IT systems, the computer systems that I've currently got at the moment, which I don't have any at the moment, so I'm seeking if this can be adjourned for another hearing for the next couple of weeks because on Friday, it was brought to my attention that - I wasn't aware that witnesses - or it was going to be an actual court hearing.

1. Subsequently, the Applicant submitted:[2]

I just come here today to, like I said, have an extension of time.  I've followed through multiple phone calls and conversations through different people in your office regarding the situation and regarding access of systems that I have currently at the moment.  I haven't been able to divide(sic) any statements.  I'm not in - I've made it perfectly clear that I wasn't going to get people to write false or misleading statements, or people that have been trained to type up certain words in certain statements matching certain paragraphs and - through different people, and I've made that perfectly clear.

Like I said, I've had multiple different conversations with different people in your office regarding the process, and they've been well aware that I don't have access to computer systems.  I'm not a lawyer by trade.  I've never been through this process before.  I'm just asking for an extension of time to plead my case.

1. On 29 August 2024, the Respondent filed an application to dismiss the Application relying on sections 399A(1)(b) and 587(3) of the Act (the Strike Out Application). The Strike Out Application alleged that Mr Montemurro has repeatedly failed to prosecute his case by refusing to comply with directions issued by my Chambers, and previously Deputy President Masson.

Legislative Provisions

1. As the Application is a general protections application, s.399A, dealing with unfair dismissal applications, is not available for reliance by the Respondent.

1. Section 587 of the Act, however, 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.

1. In Rebecca Tomas v Symbian Health,[3] Commissioner Gooley found as follows with respect to the operation of s.587:

“[57] Section 587 gives Fair Work Australia the power to dismiss a matter. Section 587(a), (b) and do not limit Fair Work Australia's power to dismiss matters for other reasons.

[58] In determining unfair dismissal applications Fair Work Australia is required to afford a fair go all round to both employers and employees. Further, Fair Work Australia must perform its functions and exercise its powers in a manner that is fair and just and must take into account equity, good conscience and the merits of the matter.”

1. I consider the above conclusion equally apposite to general protections applications.

Consideration

1. The Applicant has made no attempt to comply with Directions to file and serve submissions and evidence prosecuting his case and has provided no rational reasoning to explain his non-compliance. At the conclusion of the hearing on 18 September 2024, I advised the parties that I had decided to dismiss the Application pursuant to s.587(3) of the Act, and that reasons would be provided. This decision contains those reasons.

1. The Applicant was repeatedly advised of the need to abide by directions issued by the Commission, and the consequences of failing to so comply. The correspondence was consistent and clear, however, the Applicant did not take one step to comply with any directions issued by the Commission for the filing of materials and submissions to advance his case.

1. I also find his justifications for requesting an adjournment to be entirely inconsistent with his email dated 28 August 2024, wherein he confirmed his ability to provide further oral clarifications on the day of the Hearing.

1. My Chambers provided the Applicant with access to links which provide free legal assistance and advice. On the day of the Hearing the Applicant further justified his request for an adjournment claiming that he had not had access to a computer. I find this incredible in circumstances where the Applicant clearly received the abundance of correspondence sent to him by my Chambers.

1. In accordance with the principle of a fair go all round to both employers and employees, I find that the Applicant’s repeated non-compliance with Directions is wholly unacceptable.  Taking into account fairness, justice, equity and good conscience I find that the Applicant has been provided with repeated opportunities to prosecute his case, and/or contact the Commission to explain his non-compliance, including repeated warnings from my Chambers by email and telephone, but has failed to adequately comply.

1. I find, pursuant to s.587(3)(a), that the application should be dismissed for want of prosecution. An Order dismissing the application will be published with this Decision.

DEPUTY PRESIDENT

Appearances:

Mr F Montemurro, the Applicant.

Mr S Clayer, on behalf of the Respondent.

Hearing details:

18 September 2024.
Sydney.
In-person.

[1] Transcript PN 8.

[2] Transcript PN 68 and 69.

[3] [2011] FWA 5458.

Printed by authority of the Commonwealth Government Printer

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