Mr Ian Burdinat v Bechtel Construction (Australia) Pty Ltd

[2014] FWC 8827

[2014] FWC 8827

FAIR WORK COMMISSION

DECISION

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

Mr Ian Burdinat
v
Bechtel Construction (Australia) Pty Ltd
(U2014/769)

COMMISSIONER SPENCER BRISBANE, 5 DECEMBER 2014

Application for an unfair dismissal remedy — Applicant's failure to appear at the Fair Work Commission — Respondent applied for application to be dismissed - Application for costs

[1] This decision relates to an application made by Mr Ian Burdinat (the Applicant) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (the Act) against Bechtel Construction (Australia) Pty Ltd (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 and s.587 of the Act. The Respondent also made an application for costs.

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.”

[4] Section 587 of the Act, not limited to unfair dismissals, 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.”

[5] The power for the Commission to award costs in an application for an unfair dismissal remedy is found in s. 611 of the Act, which provides as follows:

“611 Costs

(1) A person must bear the person’s own costs in relation to a matter before FWA.

(2) However, FWA may order a person (the first person) to bear some or all of the costs of another person in relation to an application to FWA if:

(a) FWA is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) FWA is satisfied that it should have been reasonably apparent to the first person that the first person’s application, or the first person’s response to the application, had no reasonable prospect of success.

Note: FWA can also order costs under sections 376, 401 and 780.

(3) A person to whom an order for costs applies must not contravene a term of the order.

Note: This subsection is a civil remedy provision (see Part 4-1).”

[6] The Respondent also applied for costs pursuant to s.400A, as follows:

“400A Costs orders against parties

(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.

(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.

(3) This section does not limit the FWC’s power to order costs under section 611.”

[7] A costs application can only be made after a determination is made in a matter, or the matter is discontinued. Section 402 provides as follows:

“402 Applications for costs orders

An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 400A or 401, must be made within 14 days after:

(a) the FWC determines the matter; or

(b) the matter is discontinued.”

Procedural history

[8] The Applicant lodged his substantive application on 12 March 2014. The matter was subject to conciliation but unable to be resolved. Directions were set for the filing of material. The matter was listed for hearing in Brisbane on 18 and 19 September 2014.

[9] The Respondent served an Order (that was granted) requiring the production of documents, on the Applicant’s representative on 3 September 2014. The documents were to be produced by 10 September 2014. The Applicant’s representative indicated to the Respondent’s representative on 5 September 2014 that the Union had been unable to contact their member at that time, due to the Applicant working remotely.

[10] On 15 September 2014, the Respondent’s representative raised that no documents had been produced in accordance with the Order. The Applicant’s representative replied on 15 September 2014 that, as they has previously advised, there was a delay stemming from the Applicant working in a remote part of Western Australia, and indicated that as these matters went to the issue of compensation, there could be no prejudice to the Respondent in not receiving them at this time.

[11] On 16 September 2014, the Applicant’s representative indicated that the Applicant would require all of the Respondent’s witnesses for cross-examination. The Respondent had organised that 7 witnesses, based in Gladstone, to attend the Brisbane hearing.

[12] The Applicant failed to appear at the hearing on 18 September 2014. All of the Respondent’s witnesses required by the Union were in attendance.

[13] Following the applicants failure to attend, the Respondent made an application pursuant to 399A(1)(a) and/or (b), and/or s587(1)(b) of the Act. Further, the Respondent made an application for costs pursuant to s400A(1) and/or s611(2)(a) of the Act.

Summary of submissions

[14] The Respondent submitted that the application should be dismissed under s.399A due to the claims being pursued in an unreasonable manner. The Respondent referred to the Fair Work Amendment Bill 2012 Explanatory Memorandum. It is set out as follows:

“Part 2 – Power to dismiss applications
Fair Work Act 2009

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.”

[15] The Respondent submitted that the Applicant engaged in unreasonable conduct because the Applicant failed to prosecute his case; failed to appear at the hearing; failed to comply with the Order requiring production of documents; failed to respond to his representative’s attempts to contact him and failed to provide his representative with instructions.

[16] The Respondent further submitted that the Applicant’s representative engaged in unreasonable behaviour because he failed to prosecute the case on the Applicant’s behalf; failed to maintain contact with the Applicant throughout the matter; failed to advise the Applicant of the dates for the hearing; and failed to contact the Applicant to advise him of the need to comply with the Order requiring production of documents; acted without instruction from the Applicant, or has contacted the Applicant but failed to ensure that the Applicant was aware of the dates for hearing and that he needed to appear and comply with the Order requiring production of documents; and acted unreasonably in its conduct of the matter on the Applicant’s behalf.

[17] The Applicant’s representative has filed submissions and statements in response to the Respondent’s applications for the matter to be dismissed and costs ordered.

[18] The Applicant submitted that there was not a repeated failure to attend, citing that there had been only one instance of non-attendance and that the instance was not egregious or without justification. There was some contradiction between the explanation given for the Applicant’s absence at the hearing, and the following submissions and statements filed by the Applicant’s representative.

[19] The Applicant’s representative indicated at the hearing that arrangements were made two to three weeks ago by a different officer of the Union for the Applicant to be in attendance at the hearing and to provide the documents as sought in the Order to produce 1.

[20] The Applicant’s representative also indicated that his instructions were that travel arrangements were made, and were provided by the employer as part of a fly-in, fly-out arrangement but that the roster could be changed without the Applicant’s agreement 2. Further, the Applicant’s representative stated that his instructions were that the Applicant was to arrive at the Union office on the morning of the hearing so that the Applicant and his representative could have a brief conference and then travel together to the hearing3.

[21] In his statement, the Applicant’s representative stated that he had formed the view that the administrative officer at the Union did not advise the Applicant of the date of the listing for the matter, and further, the administrative officer had resigned on 11 September 2014. The Applicant stated that he recalled having a conversation with an administration offer from the Union about the hearing, but that he did not recall being given an exact date. The Applicant further stated that he changed his telephone number approximately 6 weeks before the hearing and did not think to provide this new number to the Union.

[22] In direct contrast to the Applicant’s representative stating at the hearing that the Applicant’s new employment was a fly in fly out arrangement, where the Applicant’s roster could be changed without agreement, and also email from the Applicant’s representative and an administrative officer of the Union stating that the Applicant had previously advised that he is working in remote Western Australia and has limited access to communication devices, the Applicant stated that he has not worked since his dismissal.

[23] The Applicant submitted that it was open to the Respondent to apply for the hearing to be held in Gladstone which would have substantially mitigated its costs.

[24] The Applicant’s representative indicated that the Applicant should have been excused from attendance at the hearing, on the basis that the Respondent’s representative had not confirmed (in response to the Direction) that they sought to cross-examine the Applicant. I do not consider that the Applicant is excused on this basis. The Applicant falls into a separate category; it is the Applicant’s application that underpins the arbitration proceedings and it is regular for them to attend to progress the matter, particularly when there is no correspondence to suggest otherwise with the Commission or the other party.

Consideration

Application to dismiss

[25] The Respondent made an application to dismiss the application under s.587 of the Act. The words “Without limiting when the FWC may dismiss an application” in s.587(1) of the Act, indicate that the Commission may also consider dismissing an application in circumstances not contemplated by s.587(1)(a), (b) or (c) of the Act. The Explanatory Memorandum to the Fair Work Bill 2008, further states that this “provision is not intended to limit FWA’s power to dismiss applications for other reasons, such as failure to meet jurisdictional requirements.”

[26] The Respondent, in their submissions, cited cases where applications have been dismissed under s.587 of the Act for failure to appear. I note that these cases were decided before the insertion of s.399A into the Act. The Respondent has not submitted that the application was made vexatiously or without reasonable cause or not made pursuant to the Act. It is appropriate, in the current circumstances, to consider the application to dismiss pursuant to s.399A and s.587 as the case law relating to s.587 also has considered circumstances where parties have failed to appear, and therefore is relevant.

[27] The Respondent relied on the following case law relevant to the application to dismiss.

[28] In considering an application to dismiss under s.587, the Full Bench of the Commission in Sayer v Melsteel Pty Ltd 4 stated as follows:

“[8] When these events are looked at objectively it is clear that there has been no denial of natural justice. Whether he was too ill to attend the hearing on 7 July or not, it is highly unlikely that he was so incapacitated that he was unable to send a message of any kind. But there is no evidence that he took any action to alert anyone to the fact he would not be attending. Mr Sayer was given an adequate opportunity to be heard. While it was open to the Commissioner to adjourn the matter, either generally or subject to some conditions, his decision to decide the matter in the applicant’s absence was not affected by error.

[9] Mr Sayer also submitted that if he were to be permitted to run his case he would have succeeded. In light of our conclusion on the first ground of appeal it is not necessary that we deal with that submission. When an applicant does not take the opportunity provided to prosecute their application, the application will usually fail. It is difficult to envisage circumstances in which it could be otherwise.”

[29] In considering the exercise of discretion pursuant to s.399A of the Act, in Allen v Army and Air Force Canteen Service 5 Senior Deputy President Richards stated as follows:

“[36] The discretion vested in the Commission by way of s.399A of the Act is fettered only in so far as it must be exercised on the basis of a judgement as to whether an Applicant had, in the circumstances before the Commission, “unreasonably [...] failed to comply with [a Commission] direction [...] relating to the application.”

[37] Section 399A(1) of the Act focuses the Commission on the circumstances of the Applicant’s conduct for the purposes of the exercise of discretion. The Explanatory Memorandum is consistent with the statutory focus in that it indicates that:

the amendment is intended to address the small proportion of applicants who may pursue claims in an improper or unreasonable manner.

[38] The Explanatory Memorandum further states that:

the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant.

[39] The discretion is not one that should be read as being subject to the scope of considerations as might arise in Brodie Hanns (Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR see pages 299-300) or as are otherwise applicable by statutory direction under s.366 of the Act or s.394(3) of the Act.

[40] Further, it is not to be read into the jurisdiction, for example, that the Commission must establish that the Respondent has been exposed to a prejudice, or in some way disadvantaged or put to cost (though understandably such circumstances may well arise consequentially).

[41] Nor does the Respondent need to possess a defence against the claims as made in the originating application (as is said by the Full Bench in Re: Sayers 1 to be required in relation to a dismissal of an application under s.587(1) of the Act, at the Commission’s initiative).

[42] The discretion, therefore, to dismiss an application under s.399A(1) of the Act is exercised subject only to an objective evaluation of the Applicant’s conduct, and more particularly, whether or not that conduct was unreasonable in the circumstances.”

[30] Senior Deputy President Richards dismissed the application in circumstances where the Applicant had done nothing to progress her application, or made enquiries into the progress of her application, for two months. It was also relevant that the Applicant knew material had to be filed in accordance with the Directions but made no enquiries as to whether there had been compliance. Irrespective of the fact that the Applicant was represented, Senior Deputy President Richards stated that “the Applicant had an obligation herself to diligently pursue her claim and to monitor its progress. She did not do so and sat on her hands for a two-month period, in effect.” 6

[31] Directions for the provision of the substantive material were provided to the parties on 1 July 2014 at the same time as the Notice of Listing for 18 and 19 September 2014. The Applicant’s representative filed a statement of the Applicant, in line with the Directions, on 18 July 2014. In order to get instructions to file the statement in line with the Directions, the Union must have been in contact with the Applicant at a time when the hearing date and Directions had been set. The statement that was filed was unsigned and the cover email indicated that a signed copy would be forwarded in the coming days. A signed copy has not been provided to the Commission. I find it difficult to accept that the Applicant was not aware of the hearing of the matter, the dates having been set on 1 July 2014. The Applicant clearly, in line with his statement, had an expectation of the matter being heard.

[32] I am satisfied that the Applicant failed to attend the hearing of the matter under s.399A(1)(a). The Applicant, taking into account the provision of his statement, was aware of the impending hearing. It was submitted that the Applicant had not made recent contact with his Union. Further, the Applicant stated that he had changed his telephone number and did not update the Union as to the details, which he had an obligation to do in order to progress his application. In the Union’s email dated 5 September 2014, the Union indicated that they had endeavoured to contact him by a range of means, including by email.

[33] Whilst at the hearing, it was indicated that email may be a difficulty at the suggested remote location of his work; this is contrary to the actual circumstances that the Applicant was not in a remote location, nor working in fly-in, fly-out position, as he has not worked since his dismissal. The alleged circumstances of the remote employment proposed at the hearing were contrary to the actual circumstances and therefore none of the suggested impediments were present to prevent the Applicant from appearing to prosecute his case. No reasoning has been provided to justify the Applicant’s failure make enquiries with his representative or the Commission into the status of his case. This does not evince an intention to prosecute his matter. The Applicant has an obligation in making an application to progress it.

[34] In these circumstances, applying the case authority above, the Applicant’s serious failure to attend the arbitration hearing to progress the matter is sufficient to warrant dismissal in this matter. The Applicant’s representative is an experienced industrial officer of a well resourced and organised union that consistently prosecute these matters with their members.

[35] The Applicant’s representative, in the current circumstances, was aware that they had had difficulty making actual contact with the Applicant preceding the hearing. Whilst the Applicant bears an obligation to maintain contact with their representative and progress their application in an active manner, in circumstances where the Applicants representative was aware that they had confirmed that they required to cross-examine the Respondent’s 7 witnesses, this should have caused concern as to the potential conduct of the matter.

Application for costs

[36] The Respondent sought costs in relation to the Applicant failing to attend the hearing. The application for costs was filed with the application to dismiss.

[37] Section 402 of the Act is restated as follows:

402 Applications for costs orders

An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 400A or 401, must be made within 14 days after:

(a) the FWC determines the matter; or

(b) the matter is discontinued.

[38] At the time of making the application for costs, the Commission had not determined the matter, and the application had not been discontinued. The Commission is therefore unable to make a costs order, as the application for costs has not been made in accordance with s.402 of the Act, in that it has not been made within 14 days “after” the determination of the matter 7.

Conclusion

[39] I am satisfied that the Applicant has failed to attend to progress his matter. In this case, the Applicant had met the directions of the Commission in regards to the substantive application, but the Applicant failed to appear at the hearing. The Commission is unable to consider the costs application made before the determination or discontinuance of the matter.

[40] Accordingly, in all the circumstances of the matter, it is fair and reasonable to dismiss the Applicant’s substantive application for failure to attend and for want of prosecution. Pursuant to s.399A(1)(a) and s.587 of the Act, the Applicant’s application for an unfair dismissal remedy is dismissed.

[41] I Order accordingly.

COMMISSIONER

 1   Transcript, 18 September 2014 at PN12 and PN53

 2   Transcript, 18 September 2014 at PN38

 3   Transcript, 18 September 2014 at PN126

 4   [2011] FWAFB 7498

 5   [2013] FWC 9209

 6   [2013] FWC 9209 at [58]

 7   Lambert v Jetscape Travel Pty Ltd T/A Travelscene/ByoJet (No.1) [2013] FWC 2263 at [116]

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