Mr Michael Stockdale v Lincoln Sentry Group Pty Ltd
[2023] FWC 1755
•25 JULY 2023
| [2023] FWC 1755 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Michael Stockdale
v
Lincoln Sentry Group Pty Ltd
(U2023/3980)
| COMMISSIONER JOHNS | MELBOURNE, 25 JULY 2023 |
Application for an unfair dismissal remedy - Section 399A - Failure to attend hearing held by the Commission - Failure to comply with a direction of the Commission - application granted
Background
This decision concerns an application made under s.399A of the Fair Work Act 2009 (Cth) (FW Act) by the Lincoln Sentry Group Pty Ltd (the Respondent) to dismiss an unfair dismissal application brought against it by Mr Michael Stockdale (the Applicant).
For the reasons that follow, the Respondent’s application under s.399A is granted and the Applicant’s application for an unfair dismissal remedy is dismissed.
Procedural Context
On 9 May 2023, the Applicant filed an application in the Fair Work Commission (Commission) for an unfair dismissal remedy under s.394 of the FW Act.
On 19 May 2023, the parties were emailed a Notice of Listing for the conciliation conference to be conducted on 19 June 2023.
On 26 May 2023, the Respondent filed its response. No jurisdictional objections were raised.
On 19 June 2023, the Commission attempted to conduct the conciliation conference, but the Applicant could not be reached despite calls from his representative. The Commission attempted to schedule a second conciliation conference, but the Applicant remained unresponsive.
On 23 June 2023, the application was allocated to my Chambers. On the same day, I listed the matter for a mention/directions hearing (hearing) on 29 June 2023. A Notice of Listing was sent to the nominated email addresses of the Applicant, his representative and the Respondent.
On 29 June 2023, the Applicant’s representative and the Respondent attended the hearing. However, the Applicant did not attend nor was reachable despite attempts by my Associate and his representative to his nominated phone number. In light of the same, I issued directions in furtherance of the matter requiring the Applicant to file his material first by 13 July 2023.
By 13 July 2023, neither the Applicant nor his representative had filed any material.
On 14 July 2023, the Respondent filed a form F1 seeking the dismissal of the application pursuant to s.399A(1)(a) and (b) of the FW Act. The Respondent simultaneously upon filing served the form F1 on the Applicant and his representative. The Respondent in item 2.2 of its form set out the grounds for the order or relief as follows:
“1. The order being sought by the [Respondent Employer] is the dismissal of the Commission matter U2023/3980 for failure to comply by the [Employee Applicant] under s399A of the Fair Work Act 2009 (Cth).
2. The [Employee Applicant] appears to have no intention to attend any meetings and/or hearings, including conciliation on 19 June 2023, the Case Management Hearing (Mentions/Directions) on 29 June 2023 and or to engage with and/or to respond to communications including the Directions issued by the Commission on 29 June 2023.
3. At no time over the approx. three and a half weeks since the initial failure to attend the conciliation meeting and respond to communication by the Commission (June 19 – 14 July), has the [Employee Applicant] made any effort to explain the circumstances as to why he had failed to attend and/or respond to the Commission.
4. The [Employee Applicant] however has made direct contact with the Company via email directly to our group payroll department on 5 July 2023 with the subject line,
‘Daphne thanks I won some look at my new $150;000 car best thing U guys sacking me I’m clean now I have a job close to home 31$per hr no discrimination’ (sic).
With no content in the email apart from a photo of a car. Additionally, Mr Stockdale has also made contact with other employees during this period via his listed mobile phone number.
5. The [Respondent Employer] believes that not only has the [Employee Applicant] failed to comply with the requirements set out by the Commission, but that it is clear he has access to emails and mobile phone and has elected to be deliberate in his choice not respond.
6. The [Respondent Employer] also reasonably believes that it appears that from his last communication on 5 July 2023 that the [Employee Applicant] has successfully gained employment with another Company and no longer appears to be interested in pursuing his application for Unfair Dismissal.
The [Respondent Employer] requests that the Respondents Unfair Dismissal matter is dismissed by the Commission as Mr Stockdale’s actions, or lack thereof, have been completely unreasonable in his failure to comply with the requirements of the Commission under the Fair Work Act.”
On 17 July 2023, my Chambers sent a letter to the nominated email addresses of the Applicant, his representative and the Respondent noting the filing of s.399A application. The Applicant was afforded until 5PM (Melbourne time) on 24 July 2023 to provide his reason/s for non-attendance and non-compliance. The letter expressly provided that if no material was filed by the deadline or the Applicant’s explanation being unreasonable, his unfair dismissal application will be dismissed.
On 18 July 2023, the Applicant’s representative filed a form F54 giving notice to all parties that it no longer acts for the Applicant.
The Applicant did not provide any reason/s by the deadline provided.
Legislative Framework
Section 399A of the FW Act 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.”
The Explanatory Memorandum to the Fair Work Act Amendment Bill 2012 (Cth) in respect of s.399A provided as follows:
“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.”
Consideration
The Full Bench of the Commission in Ian Kenneth Lockyear v Graeme Cox (Lockyear) relevantly provided as follows in relation to the operation of s.399A of the FW Act:[1]
“[30] We observe at the outset that the power to dismiss an application is to be exercised cautiously. As the Full Bench observed in John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station:
‘The Courts have long held that the power to dismiss a substantive application should only be exercised cautiously and sparingly; a fortiori where, as here, the appellant has sought orders for relief for his alleged unfair dismissal. This is so because it results in the complete extinguishment of an applicant’s right to have his/her application for relief orders under beneficial legislation, heard and determined according to law. In short, the application is dismissed before an applicant has had his/her ‘day in court’, or as the appellant pleaded, he just wanted his case heard.’
…
[57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:
1. An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.
2. The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.
3. The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.
4. In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.
5. A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.
[58] In most cases, it is not until these steps have been observed that the Commission is in a position to determine the s.399A application before it. It is worth reiterating that a cautious approach should be taken to dismissing a substantive application for relief.”
As set out in the procedural context section of my decision, the first three steps have been satisfied. Because no submissions were filed by the Applicant, steps four and five were not enlivened.
I must now determine the s.399A application before me.
Because there is no evidence to the contrary, I accept the Respondent’s submissions and find that the Applicant’s actions were not only unreasonable, but also discourteous to the Commission, his representative and the Respondent. The unchallenged submission of the Respondent, indicating that the Applicant has been actively using his emails and phone throughout the course of this matter, clearly demonstrates a lack of willingness by the Applicant to prosecute his case. Therefore, even a very cautious consideration of s.399A would incline me to grant the order sought by the Respondent.
I note the observations made by Deputy President Anderson in Madelyn Taylor v Northline Pty Ltd T/A Northline who stated as follows:[2]
“[20] It is well-established that an applicant has an obligation to comply with directions and actively and attentively prosecute their claim. There are minimum disciplines associated with invoking a statutory jurisdiction and litigating in a quasi-judicial tribunal. Invoking the Commission’s jurisdiction is neither cost nor consequence free; doing so puts a responding party (in this instance, the employer) to time and expense in defending its position. It also utilises the services of a publicly funded tribunal whose members and staff have statutory obligations to conduct the institution’s business fairly and efficiently having regard to the interests of multiple applicants and respondents. A minimum discipline is to attend hearings and comply with directions in advance of hearings or, at the very least, provide explanations and seek timely extensions should compliance not be possible.
[21] In Peter Viavattene v Health Care Australia, a full bench stated:
“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).”
[22] Leaving aside the jurisdictional objections in this matter, it is a significant step to
dismiss an application that is otherwise within jurisdiction without a merits hearing. However, parliament has underscored the importance of actively and attentively prosecuting one’s claim by empowering the Commission to dismiss applications of its own motion (section 587) or to do so for specific non-compliance on application by a respondent employer (section 399A).[23] I concur with the observations of Deputy President Colman in Diane Porteous v G. Kakafikas and A.G. Bek Partnership T/A Yarra Glen Pharmacy:
“[19] It is completely unacceptable that a person can institute a legal proceeding, fail to prosecute it, and waste the other party’s time and that of the Commission, all with impunity and at no cost to themselves other than a filing fee of $73.20. Although there is the possibility under the Act to bring an application for costs, there is a high bar for success and such applications are, understandably, rarely brought. Further, in many cases, particularly those involving small businesses, there are no costs such as legal fees that might be recouped through cost orders. What has been expended is valuable time that could have been put to productive use. In my view there should be more robust consequences under the Act for litigants who fail to make reasonable efforts to prosecute applications.”
[24] Ms Taylor has, for reasons unknown to the Commission, been non-responsive. If the reason is to be gleaned from her email of 9 September 2021 that she has secured alternate employment and does not wish to proceed with her application, it is disrespectful to the process Ms Taylor instituted to not file or inform the Commission of a discontinuance. If it is because Ms Taylor is occupied between the hours of 8.30am and 5pm weekdays it is equally discourteous not to respond to the Commission’s telephone calls and emails and seek rescheduling.
[25] Working in a new job after being dismissed does not displace an applicant’s obligation to actively and responsibly attend to litigation they have voluntarily initiated seeking a remedy concerning their former employment.”
I am satisfied that the requirements of s.399A have been met because there is no evidence to the contrary. I am therefore satisfied that the Applicant’s application for an unfair dismissal remedy should be dismissed.
Conclusion
The Respondent’s s.399A application is granted.
Pursuant to s.399A of the FW Act, the Commission, as presently constituted, dismisses the Applicant’s application for an unfair dismissal remedy on the basis that the Applicant has unreasonably failed to attend two listings and comply with the directions of the Commission.
An order giving effect to this decision will be issued simultaneously with this decision [PR764370].
COMMISSIONER
[1] [2021] FWCFB 875, [30] & [57] – [58].
[2] [2021] FWC 6213, [20] – [25].
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