Mr Mathew Leighton v Dowdens Group T/A Dowdens Pumping

[2020] FWC 6977

[2020] FWC 6977

FAIR WORK COMMISSION

DECISION

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

Mr Mathew Leighton
v
Dowdens Group T/A Dowdens Pumping
(U2020/11762)

COMMISSIONER HUNT BRISBANE, 22 DECEMBER 2020

Application for an unfair dismissal remedy Application for an unfair dismissal remedy – s.399A application to dismiss – failure of applicant to comply with Commission directions – discretion exercised – unfair dismissal application dismissed.

Application

[1] On 31 August 2020, Mr Mathew Leighton made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act), alleging he was dismissed from his employment with Dowdens Group T/A Dowdens Pumping (the Respondent) and that the dismissal was harsh, unjust or unreasonable.

[2] On 25 September 2020, the Respondent filed a Form F3 Employer Response to the application, alleging Mr Leighton had engaged in serious misconduct to justify termination. The Respondent elected not to participate in a conciliation before a staff conciliator of the Commission, and the matter was allocated to my chambers to proceed to hearing.

[3] Following allocation to my chambers, I issued directions for the filing of materials in preparation for hearing.

[4] The matter was listed for telephone conference before me on 19 October 2020, with directions that Mr Leighton file his evidence and submissions by no later than 27 October 2020. The matter was set down for hearing on 2 December 2020.

Conference

[5] Mr Leighton participated in the telephone conference on 19 October 2020. However, before it concluded he dropped out of the call. My Associate attempted to dial Mr Leighton back into the conference call without success. Correspondence was subsequently sent from my chambers confirming the next steps of filing materials in accordance with the issued directions.

Failure to file materials

[6] Mr Leighton did not file any materials to my chambers by 27 October 2020. On 28 October 2020, my Associate wrote to the parties following up Mr Leighton as to the status of his materials. By 4 November 2020, after no materials were received by Mr Leighton, and he had not made any contact with my chambers, I listed the matter for a non-compliance hearing on 6 November 2020.

Non-compliance hearing

[7] Mr Leighton attended the non-compliance hearing. The Respondent was represented by Mr Richard Irelandes, Safety and Human Resource Manager. At the hearing, Mr Leighton gave evidence that he failed to file his materials due to hardship.

[8] Following the non-compliance hearing I determined that the application should continue, and I issued amended directions for hearing. Due the availability of hearing dates in 2021, Mr Leighton was granted a generous period until 17 December 2020 (approximately six weeks) to prepare his materials in preparation for a hearing on 28 January 2021.

Second failure to file materials

[9] Mr Leighton did not file any materials to my chambers by 17 December 2020.

Respondent’s s.399A application

[10] On 18 December 2020, Mr Irelandes on behalf of the Respondent filed a s.399A application seeking the Commission dismiss the proceedings on the basis that Mr Leighton had unreasonably failed to comply with a direction or order of the Commission relating to the application.

[11] I invited Mr Leighton to respond to the s.399A application by 21 December 2020. I did not receive any correspondence from Mr Leighton to my chambers by 21 December 2020, nor since.

Relevant legislation

[12] Section 399A of the Act is a specific provision in relation to unfair dismissal applications which also provides for the dismissal of applications in circumstances where an applicant has not acted to prosecute their case. Section 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.”

Consideration

[13] I note that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so. 1  Such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form of relief from a beneficial statutory provision.2

[14] The Commission’s obligations regarding the manner in which it must perform its functions and exercise its powers are set out in ss.577 and 578 of the Act. Relevantly, the Commission must act in a manner that:

•  is fair and just;

•  is quick, informal and avoids unnecessary technicalities;

•  is open and transparent; and

•  takes into account equity, good conscience and the substantial merits of the case.

[15] In considering the approach to be followed by the Commission where an applicant has failed to prosecute their case, the Full Bench in Viavattene v Health Care Australia 3 commented:

“[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…”

[16] In the Full Bench decision of Mihajlovic v Lifeline Macarthur (2014) 241 IR 142, the Full Bench said the following regarding the use of the word ‘may’:

“Section 33(2A) of the Acts Interpretation Act 1901 (Cth) provides:

‘(2A) Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word may is used, the act or thing may be done at the discretion of the person, court or body.’

Section 40A of the [FW] Act provides that the Acts Interpretation Act as in force on 25 June 2009 applies to the [FW] Act, but that amendments after that date do not. Section 33(2A) came into effect on 18 December 1987, and therefore applies to the [FW] Act. Under s 2 of the Acts Interpretation Act, that Act applies inter alia to all Commonwealth Acts unless an Act is subject to a contrary intention”

[17] This approach was adopted by the Full Bench in the context of s.399A of the Act in Granas v Berkley Challenge Pty Ltd[2015] FWCFB 1795. It follows that the power to dismiss an application pursuant to s.399A is discretionary.

[18] Recently, Deputy President Sams set out the approach to considering s.399A applications in Thomas v Highway NN Pty Ltd [2020] FWC 3911, where the Deputy President said at [14]:

“Accordingly, s 399A of the Act requires a two-step process; firstly, a finding that one or more of the grounds set out are satisfied and secondly, if so, the consideration as to whether it is appropriate to exercise a discretion to grant the s 399A application and dismiss the unfair dismissal application”

[19] In Allen v Army and Air Force Canteen Service [2013] FWC 9209, Senior Deputy President Richards said the following regarding the exercise of discretion under s.399A of the Act:

“[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 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."

[20] I note that the above decisions set out the relevant principles and considerations and I respectfully adopt them.

[21] In the present matter, Mr Leighton has been given a reasonable opportunity to participate in proceedings and prosecute his case, however he has not done so. He has not responded to the written correspondence from the Commission, and the last time he engaged with the Commission was during the non-compliance hearing on 6 November 2020. Mr Leighton has not attempted to provide any explanation as to why he could not comply with the amended directions.

[22] I am satisfied that Mr Leighton has unreasonably failed to comply with a direction of the Commission relating to his application. In these circumstances I consider it appropriate to exercise my discretion under s.399A(1)(b) to dismiss Mr Leighton’s application.

Conclusion

[23] Mr Leighton’s application is dismissed. An order [PR725774] giving effect to this decision will be issued separately.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1   General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

 2   Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].

 3    [2013] FWCFB 2532.