Mr LD v Marine Parade Pty Ltd T/A Auscut Gippsland Concrete Sawing

[2014] FWC 6566

[2014] FWC 6566

FAIR WORK COMMISSION

DECISION

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

Mr LD
v
Marine Parade Pty Ltd T/A Auscut Gippsland Concrete Sawing
(U2013/13211)

DEPUTY PRESIDENT ASBURY BRISBANE, 25 SEPTEMBER 2014

Application for unfair dismissal remedy - Application under s.399A for the Commission to dismiss for failure to comply with directions.

[1] This decision concerns an application by Mr LD (the Applicant) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by Marine Parade Pty Ltd T/A Auscut Gippsland Concrete Sawing (the Respondent). The application was made on 4 September 2013.

[2] The application was listed for conciliation on 22 October 2013 however the Applicant was unable to be contacted to participate in the conciliation. The matter was allocated to me and a Directions Hearing was held on 28 February 2014.

[3] At the Directions Hearing the Respondent made submissions and provided material to the Commission (including a Police Report) upon which it intended to rely in support of a contention that the Applicant’s dismissal was consistent with the Small Business Fair Dismissal Code. The Applicant responded to that material. His response was essentially to concede that the facts put before the Commission by the Respondent were correct, and to provide an explanation that was patently implausible.

[4] In short, the Applicant stated that property of the Respondent found at his residence during a Police raid - for an unrelated reason - must have been removed from the Respondent’s premises by him and placed at his residence, while he was sleep walking because of the effects of medication. At the time of the dismissal the Applicant’s residence was adjacent to the Respondent’s business premises. The Applicant also stated that he was taking medication because of an injury sustained at work.

[5] When the Applicant indicated that notwithstanding the obvious difficulty with his claim - particularly given that the Small Business Fair Dismissal Code applies - that he intended to proceed with it, the Respondent made an application under s.404 of the Act for security for the payment of costs.

[6] Directions were issued requiring the Respondent to file and serve submissions and supporting material in relation to the application for security for costs, and for the Applicant to respond. The Respondent complied with the Directions and the Applicant did not.

[7] The Respondent then applied under s.399A(1)(b) of the Act for the application to be dismissed on the ground that the Applicant had unreasonably failed to comply with a Direction of the Commission relating to his application. Further Directions were issued, and again, the Applicant failed to comply with them.

[8] A follow up email containing further directions was sent to the Applicant giving him an additional opportunity to provide reasons why his application should not be dismissed under s.399A(1) of the Act. The terms of that section were also advised to the Applicant. This additional opportunity was provided on the basis that the Respondent had assistance from Counsel to make its applications, and to ensure that the Applicant understood the terms of s.399A of the Act. I was also conscious that the Applicant claimed to have been suffering the effects of a workplace injury and wanted to ensure that he had a reasonable opportunity to respond to the s.399A application.

[9] In support of the application under s.399A the Respondent submits that the Applicant has failed to comply with Directions on a number of occasions. Material that has been provided by the Applicant has been non-compliant with the Commission’s Rules and has failed to address relevant considerations.

[10] The Applicant’s response was as follows:

“I find this very unfair as I was sacked unfairly and left with injuries and the infection golden staf to deal with an not only am I having to deal with this infection my family have the infection as well as myself. When I received emails about the security cost it does not state what I am suppose to do therefore I rang and I was told I was to sit and wait for other parties to put forward what security costs they wanted so please explain why this is being dismissed for?”

Legislation

[11] The Respondent has applied for the application to be dismissed pursuant to s.399A of the Act, which provides:

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.

[12] The Commission also has general powers to dismiss an application pursuant to s.587 of the Act which 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.

Conclusions

[13] I am satisfied that the Applicant has failed to comply with Directions of the Commission relating to this application.

[14] The Applicant has provided no reasons for such continued failure to respond, and further has failed to establish, by any evidence, any reasons for non-compliance, despite being given every opportunity to do so by the Commission.

[15] The Applicant’s failure to comply with the Directions is unreasonable, taking into account the opportunities provided to the Applicant. In addition, the Applicant’s lack of reasons for such non-compliance supports the exercise of the discretion to dismiss the application.

[16] I am also of the view that this application should also be dismissed under s.587(1)(c) of the Act. The Respondent is a small business and pursuant to the Small Business Fair Dismissal Code need only establish that it believed on reasonable grounds that the Applicant was guilty of serious misconduct. In circumstances where the Respondent’s property was found by the Police at the Applicant’s residence, and he agrees that the property was at his residence and has an implausible explanation for how it came to be there, it is more probable than not that his dismissal will be found to be consistent with the Small Business Fair Dismissal Code.

[17] In all of the circumstances the Respondent’s application under s.399A(1) is granted. The application in U2013/13211 is dismissed. An Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

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