Mr Jason Morley v Collins Transport Adelaide

[2019] FWC 11

[2019] FWC 11

The attached document replaces the document previously issued with the above code on 2 January 2019.

Typographical errors have been corrected in paragraphs [37], [45], [46] and [49].

Paragraph [44] amended for clarification.

Associate to Deputy President Anderson

Dated 3 January 2019

[2019] FWC 11

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Mr Jason Morley
v
Collins Transport Adelaide
(U2018/11477)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 2 JANUARY 2019

Application for an unfair dismissal remedy – employer’s application to dismiss under section 399A – non-compliant but responsive applicant – unreasonable non-compliance – application adjourned pending further hearing

[1] On 8 November 2018 Mr Jason Morley (‘the applicant’ or Mr Morley) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) alleging that he was unfairly dismissed by his former employer Collins Transport Adelaide (Collins Transport or ‘the respondent employer’) on 28 October 2018.

[2] The respondent employer filed a response on 21 November 2018 contending that Mr Morley was not unfairly dismissed.

Background

[3] In accordance with the Commission’s regular practice the matter was referred to a Commission appointed conciliator for conciliation by telephone. The conciliation was scheduled for 10.45am 3 December 2018. The conciliation did not proceed due to the unavailability of Mr Morley who advised of his unavailability by email on the morning of the conciliation. The Commission endeavoured to contact Mr Morley (on the mobile phone number previously advised) to ascertain his availability for a second conciliation conference. The Commission’s calls were not answered. The Commission then sent the parties a letter (to email addresses previously notified) inviting a response within two working days if they sought conciliation to be re-scheduled. By email dated 5 December 2018 Mr Morley advised that he was unavailable due to a new job driving “in the middle of nowhere”, that he did not know what time he would be available and that “I can respond to emails of (sic) the nights or when I’m on a break but at this stage that’s all”.

[4] No conciliation was re-scheduled. Mr Morley’s application was then referred to me for hearing and determination.

[5] On 12 December 2018 I directed that a Notice of Listing be issued listing Mr Morley’s application for a directions hearing by telephone at 9.30am (ACDT) Friday 21 December 2018. Dial-in details were provided. The Notice of Listing was sent to the parties to email addresses previously notified (and from which Mr Morley had communicated with the Commission on 3 December and 5 December).

[6] At 9.30am (ACDT) on 21 December 2018 Mr Morley had not phoned into the directions hearing. My Associate telephoned Mr Morley. Mr Morley answered the call. He advised that he was driving a truck, that he had not received the emailed Notice of Listing and that it was not convenient to participate in the hearing. At my direction, my Associate advised Mr Morley that the hearing would proceed at least to require him to explain his position to the Deputy President and that directions may be issued in his absence should he not participate. On then seeking to put both the employer and Mr Morley through to the hearing, Mr Morley was no longer on line. My Associate then made three phone calls to Mr Morley between 9.35am and 9.50am on 21 December. On each occasion the calls went to message bank. A voice mail message was also left for Mr Morley requesting a call back. No call back was received.

[7] At 9.50am I commenced the directions hearing. The respondent employer was represented. There was no appearance by Mr Morley.

[8] An audio record of the directions hearing was made. I outlined the background as known to me, as set out above. I advised the hearing that:

• I will adjourn the directions hearing to 11.00am (ACDT) Monday 24 December 2018;

• That I will not list Mr Morley’s matter for arbitration until such time as I am satisfied that Mr Morley is prosecuting his application in a manner consistent with the obligations of an applicant to the Commission. These include an obligation to comply with directions of the Commission, to participate in scheduled hearings, to respond to email or telephone communications from the Commission and to promptly advise of any unavailability to comply with directions or attend hearings; and,

• That at the resumed directions now scheduled for Monday 24 December 2018 I will require Mr Morley to explain the reasons for his non-attendance on 21 December 2018.

[9] On 21 December 2018, in light of the non-appearance by the applicant Mr Morley at the directions hearing earlier that day, I issued directions in the above terms. A fresh Notice of Listing for 24 December 2018 was also issued.

[10] Mr Morley failed to phone into the adjourned directions hearing at 11.00am (ACDT) on 24 December 2018, as required by the Notice of Listing. At 11.00am my Associate telephoned Mr Morley on the mobile phone number he had previously advised the Commission. The call was not answered. It went to message-bank. A voice mail message was left for Mr Morley to urgently contact the Commission as a hearing on his application was to proceed. I commenced proceedings at 11.07am (ACDT).  The employer appeared. Mr Morley did not do so. An audio record of the directions hearing was made.

[11] During proceedings the employer advised that it sought dismissal of the application under section 399A of the FW Act on the ground that Mr Morley was failing to comply with directions and attend hearings on his application.

[12] On 24 December 2018, in light of the non-appearance by the applicant Mr Jason Morley at the directions hearing that day, I issued further directions adjourning proceedings to 11.00am Wednesday 2 January 2019. I directed that Mr Morley appear at that hearing and provide an explanation for his non-attendance at hearings on 21 and 24 December 2018.

[13] I also informed the parties that the Commission may, on its own initiative, dismiss an application under section 587 of the FW Act should it have no reasonable prospect of success. An application that is not being prosecuted may have no reasonable prospect of success.

[14] On 24 December 2018 the employer made an application under section 399A of the FW Act. The application was sent by the Commission to Mr Morley by email at 1.36pm (ACDT) 24 December 2018. I directed the employer’s application also be listed for hearing on 2 January 2019.

[15] My Directions of 24 December 2018 (including the Notice of Listing for 2 January 2019) were sent by email to Mr Morley at 1.46pm (ACDT) 24 December 2018.

[16] A few minutes later, at 1.51pm on 24 December 2018, the Commission received an email from Mr Morley in the following terms:

“Good afternoon

As I’ve stated in previous emails I had to take a job that involves me away a lot and unable to take calls as I’m driving.

I’m currently trying to make it home to see my boys for Christmas which is why I couldn’t call. I’ll also be away again on the second of January. This is very frustrating for myself as well.

Jason”

[17] At 8.53am on 2 January 2019 my Associate emailed the parties (including Mr Morley) in the following terms:

“Good morning

I confirm receipt of the below email from Mr Morley.

The proceedings will go ahead, as previously notified, at 11.00am (ACDT) today.

Kind regards,

Associate to Deputy President Anderson”

[18] Mr Morley did not personally phone into the hearing at 11.00am (ACDT) on 2 January 2019. However, at his request, his partner Ms Wescott did so. The employer also appeared. Proceedings were audio recorded.

[19] Ms Wescott advised the Commission that Mr Morley had asked her the evening prior to call into the hearing and advise the Commission that he (Mr Morley) was unable to attend the hearing on 2 January 2019 as he was driving a truck in or near Moomba (in regional South Australia), and was out of telephone reception range. Although this was the extent of her instructions, in answer to questions from myself, Ms Wescott informed the Commission that:

• Mr Morley had taken alternative work as a truck driver since being dismissed from Collins Transport and that he needed to do this work to support his family and that this had been the reason for him not attending hearings on 21 December, 24 December and 2 January;

• That it was not safe for Mr Morley to stop his truck on a highway to call in or take telephone calls from the Commission;

• Mr Morley had not left Ms Wescott with any information about when he might be available to attend hearings on his unfair dismissal application;

• Ms Wescott anticipated speaking to Mr Morley and report back when he next made contact to speak to her and his sons but was unsure if he would be available for hearings, even procedural telephone hearings, in the following days or weeks; and

• Ms Wescott said that Mr Morley needed to give priority to doing his job and looking after his family.

[20] The employer pressed its application for dismissal of Mr Morley’s application under section 399A of the FW Act.

[21] At the conclusion of the hearing I reserved my decision on the employer’s section 399A application.

Consideration

[22] I have before me two applications: Mr Morley’s application seeking a remedy for an alleged unfair dismissal, and his former employer’s application seeing to have Mr Morley’s application dismissed for failure to attend hearings and failure to comply with directions of the Commission.

[23] Section 399A of the FW 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.

....

(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.”

Has there been a failure to attend hearing or comply with directions?

[24] The facts set out above clearly establish that Mr Morley has failed to attend two directions hearings on his application:

9.30am (ACDT) 21 December 2018; and

11.00am (ACDT) 24 December 2018.

[25] Mr Morley did not personally attend a directions hearing on his application on 2 January 2019 but I am satisfied that, via Ms Wescott, he did appear and, albeit with limited instructions, Ms Wescott presented an explanation for his non-attendance on prior days and on that day.

[26] Mr Morley also failed to attend a conciliation conference on his application that had been scheduled at 10.45am on 3 December 2018, and failed to notify the conciliator, as requested, whether he would be willing to participate in a rescheduled conciliation.

[27] Mr Morley has not however been an entirely non-responsive applicant:

• He did communicate with the Commission by email on the morning of 3 December 2018, prior to the conciliation conference, advising that he would be unavailable to attend;

• He did communicate by email to the Commission on 5 December 2018 that he had been unavailable on 3 December due to a new job driving “in the middle of nowhere”, that he did not know what time he would be available and that “I can respond to emails of the nights or when I’m on a break but at this stage that’s all”;

• He did answer my Associate’s telephone call on 21 December 2018 and indicate that he had not received the emailed Notice of Listing (a claim that I have not accepted) and that it was not convenient to participate in the hearing;

• He did communicate by email to the Commission on 24 December, after not appearing that day, to the effect that he was driving, couldn’t call and would not be available on 2 January; and

• He did ask Ms Wescott to call in on his behalf on 2 January 2019 (which she did).

Explanations for non-attendance and non-compliance

[28] Section 399A is predicated on the proposition that an applicant’s failure(s) need to have been “unreasonable” for a section 394 application to be dismissed. Even if unreasonable conduct is established, dismissing a matter remains discretionary; the section provides that “The Commission may” do so.

[29] Are Mr Morley’s explanations reasonable or unreasonable?

[30] Having regard to Commission records, I am satisfied that Mr Morley was given prior notice of the proceedings on 21 December, 24 December and 2 January and sufficient time in advance to arrange his affairs to participate in those hearings.

[31] I am also satisfied that Mr Morley has been given prior notice of the employer’s application under section 399A, of my directions that he provide an acceptable explanation for his non-participation, and of the prospect that his application may be dismissed in the absence of an acceptable explanation.

[32] In my directions of 21 December and 24 December 2018 I put Mr Morley on notice that:

“it is mandatory to comply with directions of the Commission, including these directions and that orders dismissing applications may be made in their absence where grounds for such orders exist”.

[33] My directions of 24 December 2018 specifically provided that:

“at the proceeding on 2 January 2019 I intend to hear the parties on why Mr Morley’s application should not be dismissed for want of prosecution and if necessary will do so of my own initiative. In the absence of Mr Morley attending that hearing and providing an acceptable explanation for his non-attendance on 21 and 24 December 2018 there is every prospect that his application will be dismissed at that time.”

[34] In relation to the hearing on 21 December 2018, I do not accept (in the absence of evidence establishing otherwise, which has thus far not been provided) Mr Morley’s claim made in his brief telephone conversation with my Associate on 21 December 2018 that he did not receive the emailed Notice of Listing for the 21 December proceedings. Commission records indicate that the Notice of Listing was sent by email from my chambers to both parties (including Mr Morley) to their notified email address at 10.08am on 12 December 2018.

[35] Nor am I satisfied (in the absence of evidence to the contrary, which has thus far not been provided) that Mr Morley acted reasonably on 21 December in not remaining on-line and explaining his situation to me. Ms Wescott said on 2 January that Mr Morley had told her that his phone connection to my Associate had fallen out just at that time. However, Mr Morley did not ring my Associate back despite messages being left for him to do so. Whilst it is theoretically possible that Mr Morley happened to move from within phone range to out of phone range at that very moment, I have no evidence this was so. I draw a reasonable inference that Mr Morley chose to make himself unavailable for the telephone hearing that commenced at 9.50am on 21 December despite my Associate speaking to him minutes earlier. It is more likely than not that he did so because it was inconvenient to take the call whilst he was driving and inconvenient to stop the truck to do so.

[36] By failing to attend the hearing on 24 December 2018 Mr Morley also failed to comply with Commission directions that he provide, at that hearing, an explanation of his prior non-attendance.

[37] I find, on the basis of the emails sent to the Commission by Mr Morley and, as put on his behalf by Ms Wescott on 2 January, that Mr Morley’s explanation for non-attendance on 21 and 24 December was his consciously determined unavailability based on his assessment that greater priority needed to be given to his new job and the income it provided for his family than participation in Commission proceedings on his application.

[38] It is a well-established principle that an applicant has an obligation to comply with directions of the Commission and to actively and attentively prosecute their application. There are certain minimum disciplines associated with invoking a statutory jurisdiction and litigating a claim against a private individual or business in a quasi-judicial tribunal such as the Commission. Invoking the Commission’s jurisdiction is neither cost nor consequence free; doing so utilises the services of publicly funded members and staff who collectively have statutory obligations to conduct the institution’s business fairly, efficiently and in a timely manner having regard to the interests of all applicants and respondents. One such discipline is to make one’s self available for hearings directly or via a representative, irrespective of the inconvenience to private or working life, and to comply with directions in advance of hearings. At the very minimum, forward notice of inability to attend hearings (including requests for adjournments with supporting evidence) and reasonable explanations for non-attendance or non-compliance need to be provided.

[39] In Peter Viavattene v Health Care Australia the Full Bench stated at [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. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).” 1

[40] It is a significant matter to dismiss an application that is otherwise within jurisdiction without a merits hearing having been conducted. However, the parliament has underscored the importance of the principle of actively and attentively prosecuting one’s application by empowering the Commission to dismiss applications of its own motion (section 587 of the FW Act) and to further empower the Commission to do so for specific non-compliance reasons in the unfair dismissal jurisdiction on application by a respondent employer (section 399A FW Act).

[41] Such an application has been made by Mr Morley’s former employer, Collins Transport Group Pty Ltd.

[42] I take into account the explanation that Mr Morley has apparently given priority to earning his income through new work. I give weight to this; it is not merely a natural human response but also consistent with the principle that a dismissed employee should take reasonable steps to mitigate their loss. I also take into account that Mr Morley’s pre-dismissal and post-dismissal work involves driving a truck, doing so in remote areas and that participating in hearings whilst truck driving, even hands-free, is likely to be unsafe if not unlawful. I further take into account that Mr Morley has not been non-responsive, did appear through Ms Wescott on 2 January 2019 and has, via email, expressed “frustration” at his non-availability.

[43] Against this, however, is the obvious fact that Mr Morley was given adequate prior notice of these hearings and of my directions. Also weighing against Mr Morley is the equally obvious point that these proceedings are his application and that he has still, after three hearings, failed to specify any specific availability. I also take into account the prejudice to the employer which has been put to lost time by representing itself in three interlocutory proceedings and one conciliation by officers in circumstances where its capacity to advance its defence has not progressed due to Mr Morley’s non-attendance and non-participation.

[44] I have concluded that Mr Morley’s explanations for non-attendance and non-compliance are unreasonable. As laudable as it is for a dismissed employee to secure and give priority to family and new employment, a dismissed employee who chooses to litigate their dismissal takes upon themselves the obligations of a litigant. In the context of an unfair dismissal application, this includes an obligation to marry competing priorities of their new employment with litigation concerning their former work. Nor can marrying such priorities be exclusively their domain; as a litigant, an applicant does not participate at times of their choosing but must do so in a manner consistent with fair and efficient processes of the tribunal whose jurisdiction they have invoked.

[45] Mr Morley could have, but chose not to, put himself in a position where he was either not driving a truck at the appointed times or was in a stationary location within reception range and able to participate in telephone hearings.

[46] Having found Mr Morley’s non-attendance on 21 and 24 December to have been unreasonable, and having found that he has not provided an acceptable explanation at the hearings on 24 December and 2 January for his prior non-attendance (as had been directed) the issue arises is whether I consider it appropriate to exercise the discretion vested in me by section 399A.

[47] I am not satisfied that I should so at this stage given the unique circumstances of Mr Morley’s post dismissal employment (truck driving in remote areas of Australia) and the fact that he has not been entirely non-responsive and appeared via Ms Wescott on 2 January.

[48] However, the status of this matter remains unacceptable with Mr Morley still being unable to commit to any specific availability.

[49] Accordingly, I will not dismiss the employer’s application under section 399A but adjourn it for further consideration after giving Mr Morley one final opportunity for personal attendance at an interlocutory hearing on his application and on the employer’s application. My directions are as follows:

1. Mr Morley’s application under section 394 of the FW Act and the employer’s application to dismiss under section 399A of the FW Act are relisted for hearing, by telephone, at 11.00am (ACDT) Friday 4 January 2019.

2. Mr Morley is directed to appear at that hearing in person.

3. Mr Morley is directed, at that hearing, to provide, on oath, evidence of:

a. his intention to prosecute his application consistent with the obligations of an applicant including evidence of his availability to attend specific hearing dates that may be set down by the Commission for future procedural hearings on his claim and / or hearings to determine the merits of his claim;

b. his availability to comply with other directions of the Commission that may be issued including directions to prepare and serve witness statements (including his own statement) in advance of a hearing of the merits of his claim and produce documents (if any) in support of his claim; and

c. specific dates in the months of January 2019, February 2019 and March 2019 when he will be available to meet each of the aforementioned obligations.

4. In the absence of Mr Morley appearing in person at the hearing on 4 January 2019 and providing evidence on oath consistent with these directions I will for the reasons set out in this decision and (subject to hearing anything further from Mr Morley, his representative or the employer) dismiss Mr Morley’s application under section 399A of the FW Act.

[50] The employer’s application under section 399A of the FW Act is adjourned. I issue further Directions consistent with and in conjunction with the publication of this decision.

DEPUTY PRESIDENT

Appearances:

A. Wescott, for the Applicant

E. Rorie and P. McPhee, for the Respondent

Hearing details:

2019.

Adelaide; by telephone.

21 December 2018, 24 December 2018 and 2 January 2019.

Printed by authority of the Commonwealth Government Printer

<PR703558>

 1   [2013] FWCFB 2532; see also Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [19] and Patel v The Tea Centre Pty Ltd[2018] FWC 7814

DIRECTIONS

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Mr Jason Morley
v
Collins Transport Adelaide
(U2018/11477)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 2 JANUARY 2019

Application for an unfair dismissal remedy

[1] Further to the decision issued on 2 January 2019 1, the FAIR WORK COMMISSION directs:

1. Mr Morley’s application under section 394 of the Fair Work Act 2009 (FW Act) and the employer’s application to dismiss under section 399A of the FW Act are relisted for hearing, by telephone, at 11.00am (ACDT) Friday 4 January 2019.

2. Mr Morley is directed to appear at that hearing in person.

3. Mr Morley is directed, at that hearing, to provide, on oath, evidence of:

a. his intention to prosecute his application consistent with the obligations of an applicant including evidence of his availability to attend specific hearing dates that may be set down by the Commission for future procedural hearings on his claim and / or hearings to determine the merits of his claim;

b. his availability to comply with other directions of the Commission that may be issued including directions to prepare and serve witness statements (including his own statement) in advance of a hearing of the merits of his claim and produce documents (if any) in support of his claim; and

c. specific dates in the months of January 2019, February 2019 and March 2019 when he will be available to meet each of the aforementioned obligations.

4. In the absence of Mr Morley appearing in person at the hearing on 4 January 2019 and providing evidence on oath consistent with these directions I will for the reasons set out in this decision and (subject to hearing anything further from Mr Morley, his representative or the employer) dismiss Mr Morley’s application under section 399A of the FW Act.

[2] A fresh notice of listing is issued in conjunction with these directions.

[3] The parties are to note that it is mandatory to comply with directions of the Commission, including these directions and that orders, including orders dismissing applications, may be made in their absence where grounds for such orders exist.

[4] I grant both parties liberty to apply should further or amended directions be sought, consistent with the efficient conduct of proceedings.

DEPUTY PRESIDENT

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 1   [2019] FWC 11