Mr John Steele v DuluxGroup (Australia) Pty Ltd t/a Selleys

[2017] FWC 3151

[2017] FWC 3151

FAIR WORK COMMISSION

DECISION

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

Mr John Steele
v
DuluxGroup (Australia) Pty Ltd t/a Selleys
(U2017/2306)

DEPUTY PRESIDENT SAMS SYDNEY, 8 JUNE 2017

Application for unfair dismissal remedy - failure of applicant to attend proceedings or comply with directions of Fair Work Commission - want of prosecution - application dismissed.

[1] Mr John Steele (‘the applicant’) alleges that he was dismissed from his employment as a Mixer with DuluxGroup (Australia) Pty Ltd t/a Selleys (‘the respondent’) on 10 February 2017. He filed a claim for an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act, 2009 (‘the Act’) on 2 March 2017. The circumstances surrounding the applicant’s termination of employment are not materially relevant for the purposes of this decision.

[2] To demonstrate the basis upon which I am satisfied that this application should be dismissed, it will be necessary to sketch a brief chronology of events.

[3] On 30 March 2017, the matter was listed for a conciliation before a Fair Work Commission Conciliator, but was unsuccessful. On 4 April 2017, the applicant’s then representative, Ms N D’Souza, of United Voice NSW (the ‘Union’) advised the Commission that the applicant wished the matter be referred to a member for arbitration.

[4] On 10 April 2017, I issued directions to the parties for the filing of evidence and documentary evidence on which they rely (the applicant was to have submitted his material by 4pm 23 May 2017). I also listed the matter for a conference for 27 April 2017 and hearing for 7 June 2017. Two days later, on 12 April 2017, the Commission received an F54 - Notice of Representative Ceasing to Act from the Union.

[5] On 27 April 2017, the respondent attended the Commission for the conference, however, the applicant failed to appear. Later that day, my Chambers sent the applicant the following email:

‘Dear Mr Steele,

Your unfair dismissal application was listed for conference before Deputy President Sams at 11:30 am today. You failed to attend this conference.

Failure to attend a conference can be grounds for dismissing an application under s 399A of the Fair Work Act 2009. Please advise chambers within the next 7 days (that is, by close of business on Thursday 4 May 2017) whether you wish to pursue your unfair dismissal application. If yes, please explain why you failed to attend the conference.

If we do not receive a response by close of business on Thursday 4 May 2017, or if the Deputy President considers that you unreasonably failed to attend, he may dismiss the application without further notice to you.’

To date, no response has been received.

[6] On 5 May 2017, I received the following email from the respondent requesting the Commission dismiss the application:

‘On behalf of the Respondent, we respectfully request that this application should be dismissed by the Commission without further notice, including on the basis that the Applicant:

- has unreasonably failed to attend the Conference in this matter, which was scheduled on 27 April 2017;

- failed to provide any reasons as to his non-attendance prior to or after this Conference, including in response to the email below and as specifically requested by the Commission; and

- caused considerable inconvenience and cost to the Respondent in this matter by his actions and/or failures.’

[7] I have decided the grant the respondent’s request. I now provide my reasons for doing so.

Powers of the Commission

[8] Section 399A empowers the Commission to dismiss unfair dismissal applications if the applicant fails to attend a conference conducted by the Commission, or for fails to comply with a direction or order in relation to the application. That section is expressed is as follows:

‘SECT 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.’

[9] In Carter v The Hanna Group Pty Ltd[2011] FWA 31 - I dealt with the relevant authorities in matters such as this and the principles to be distilled from those authorities. At paras [3] to [6] I said:

‘[3] At this juncture, it is trite to observe that Courts and Tribunals must always adopt a cautious and careful examination of the facts and circumstances of a particular case when considering whether to dismiss a substantive application for want of prosecution by a defaulting party. In General Steel Industries Inc v Commissioner for Railways (NSW) and others (1964) 112 CLR 125, Barwick CJ held that the jurisdiction to terminate an action summarily, for want of a cause of action by the plaintiff, was to be sparingly employed and ought not to be used, save where the lack of the cause of action was clearly demonstrated. At pages 128 and 129 his Honour said:

“The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to Order 26, r. 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “be manifest that to allow them” (the pleadings) “to stand would involve useless expense”.

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or “so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument”; “so to speak apparent at a glance”.

As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same.”

[4] Mason J said in Kioa v West (1985) 49 CLR 550 at 582:

“It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.”

[5] In Australian Railways Union; Ex parte Public Transport Corporation (1993) 117 ALR 17, the High Court, in observing the powers conferred on the Australian Industrial Relations Commission, said at pages 23 and 24:

“But the wide scope given to the Commission in determining the relief which it will give does not absolve it from an obligation to observe the rules of procedural fairness in exercising its arbitral function. In Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd ((1989) 167 CLR 513 at p519) this Court pointed out that it was well settled that the Conciliation and Arbitration Commission was bound to act judicially and that the Commission, as its successor, is bound to do likewise. The Court went on to point out that one aspect of the duty to act judicially is the duty to hear a party and to allow him or her a reasonable opportunity to present his or her case and, coupled with that duty, is the duty to consider the case put. And in Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty. Ltd ((1993) 67 ALJR 389, at p390; 112 ALR 193, at p194) the Court said that the Commission has a duty in considering an application to afford a party a reasonable opportunity to allow his or her case to be put.”

[6] I glean from these judgements that the principles to be considered by Fair Work Australia (FWA) in circumstances where a defaulting party, whose application is being considered for peremptory dismissal as a result of a failure to attend proceedings may be summarised as follows:

(a) the defaulting party must be given an opportunity to explain the reasons why the Tribunal should not dismiss his/her claim for a failure to attend the proceedings;

(b) the reasons (if any are given) must be considered in the context of ensuring the proper administration of justice and fairness to both parties. In my view, this is particularly so in a s 394 unfair dismissal application, given the emphasis in the Act of ensuring ‘a fair go all round’ as referred to in s 381(2) of the Act. That section is expressed as follows:

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

(c) the defaulting party should be made aware that an application to dismiss his/her substantive application is to be considered by the Tribunal;

(d) the defaulting party should be warned that a failure to attend the hearing of such an application, without a reasonable explanation, may result in the substantive application being dismissed; and

(e) the Tribunal should ensure that all reasonable steps are taken to give an absent party every opportunity to present themselves for hearing: See Grimshaw v Dunbar (1953) 1 All ER 350 at 355.’

[10] For completeness, I also refer to the decision of the Full Bench in Sayer v Melsteel Pty Ltd, supra above, in an appeal where an applicant claimed he had been denied natural justice by not being given an opportunity to be heard. At paragraphs 8 - 9, the Full Bench said:

‘[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.’ (my emphasis)

[11] Applying the appropriate principles to this matter, I am satisfied that the applicant has been given an opportunity to be heard and he has failed to do so. Unfortunately, his lack of diligence in this respect is compounded by his failure to comply with directions on two occasions and a failure to attend the Commission for a listed conference. He was aware of the possible consequences of not doing so.

[12] In addition, given his failure to make any contact with the Commission explaining his non-attendance and his apparent indifference and non-compliance with the Commission’s directions, I do not consider the interests of justice would be served by taking any further steps to encourage him to pursue his application. The respondent has been put to considerable cost in being legally represented, but its costs have now been thrown away and it is entitled to feel aggrieved.

[13] In conclusion, the Act’s unfair dismissal regime in Part 3-4 is underpinned by the principle set out in s 381(2) of a ‘fair go all round’. Applying that principle, compels only one conclusion in this matter; that it must be dismissed. An order to that effect will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

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