Mr Shannon Kepler v Invocare Australia Pty Ltd
[2022] FWC 2191
•18 AUGUST 2022
| [2022] FWC 2191 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Shannon Kepler
v
Invocare Australia Pty Ltd
(U2022/3277)
| DEPUTY PRESIDENT CROSS | SYDNEY, 18 AUGUST 2022 |
Application for an unfair dismissal remedy – whether Applicant unreasonably failed to comply with Commission directions and attendance – s.399A of the Act – application dismissed.
Mr Shannon Kelper (the Applicant / the s.399A Respondent, generally referred to in this Decision as the Applicant) was employed by Invocare Australia Pty Ltd (the Respondent / the s.399A Applicant, generally referred to in this Decision as the Respondent) as a Funeral Director Assistant (Grade 1) prior to the termination of his employment on 25 February 2022. The Applicant filed an application for an unfair dismissal remedy on 17 March 2022 (the Application).
Relevant Facts and Directions
On 6 June 2022, after several adjournments at the request of the parties, I held a conference and directions hearing in the matter. The Applicant did not attend this conference, and Mr Gething of the Respondent appeared for the Respondent.
Following the Applicant’s non-attendance, my Chambers wrote to the parties at 9:09AM on 6 June 2022, reattaching the Notice of Listing for the conference, and writing as follows:
“Dear Mr Kepler,
The above matter is listed for Member Assisted Conciliation and Directions Hearing at 9:00AM today.
Please join the conciliation using the link on the attached Notice of Listing or contact Chambers as soon as possible.”
Following the conclusion of the conference, my Chambers wrote to the parties at 9:34AM on 6 June 2022 as follows:
“Dear Parties,
I refer to the above matter.
This matter was listed for Member Assisted Conciliation and Directions Hearing at 9:00AM on 6 June 2022. Despite Chambers’ attempts to contact Mr Shannon Kepler, the Applicant, via telephone and email, the Applicant failed to attend.
The Applicant is now requested to provide reasons for his failure to attend by 4:00pm on 7 June 2022. Failure to provide adequate reasons for non-attendance may result in an application to dismiss under s.399A of the Fair Work Act 2009 (Cth) being made. Alternatively, should the Applicant wish to discontinue this matter, please complete and return the attached Form F50 Notice of Discontinuance.”
On 6 June 2022, at 10:14AM, the Applicant sent an email to Chambers as follows:
“I apologise sincerely for the no attendance this morning.
I have made the honest mistake of having my days/weeks mixed up in thinking this matter was to be heard next Monday.
I sincerely apologise to all parties involved for taking up your time this morning and seek a new date to have the matter heard.
Can you please move the hearing to another date that suits yourself and InvoCare where I will be sure to attend?
Once again my sincere apologies for this morning.
I am still struggling to stay on track since my termination at InvoCare and trying to maintain consistent income.”
On 6 June 2022, I relisted the matter for conference and directions hearing on 15 June 2022, and in addition to dispatching the Notice of Listing, an email from my Chambers was sent to the parties contemporaneously again attaching the Notice of Listing and advising the parties of the Listing time and date. After adjourning the matter to 21 June 2022 at the request of the parties, this conference and directions hearing was attended by both parties.
On 21 June 2022, I listed the matter for Hearing on 17 and 18 August 2022. In the Notice of Listing, I issued Directions programming the manner in which the parties where to file and serve their submissions and other documents in the matter (Directions). Those Directions were:
Mr Shannon Kepler (the Applicant) is directed to file with the Fair Work Commission, and serve on Invocare Australia Pty Ltd (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of the application in this matter by 4pm on 13 July 2022.
The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by 4pm on 27 July 2022.
The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 3 August 2022.
Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other
The Applicant did not file any documents in compliance with Direction 1, and on 20 July 2022, Chambers received, via email, an application from the Respondent to dismiss the Application (the s.399A Application). An email was sent from my Chambers to the parties at 11:35AM on 20 July 2022:
“Dear Parties,
I refer to the below correspondence.
…
I note that the Applicant’s materials were due to be filed on 13 July 2022 and that Chambers and the Respondent have not received any such materials from the Applicant. The Respondent has now lodged an Application for this matter to be dismissed.
The Applicant is requested to advise Chambers whether they wish to continue with their application and to file any materials as a matter of urgency. A response is requested by 4:00pm today, 20 July 2022.”
On 21 July 2022, at 3:19PM, the Applicant sent an email to Chambers with various comments. That email contained some reference to a prior Decision of the Commission,[1] and broadly outlined the Applicant’s general position in respect of vaccination, and the impacts of vaccination schemes on workers. On the same day, at 3:44PM, my Chambers wrote to the Applicant and requested confirmation as to whether the email of 3:19PM constituted the Applicant’s submissions, or whether they intended to file further submissions. This correspondence was not responded to.
On 27 July 2022, due to the s.399A Application made in this matter, I vacated the substantive Hearing listed in the matter for 17 and 18 August 2022, listed the matter for s.399A Hearing on 18 August 2022, and issued the following Directions (s.399A Directions):
Invocare Australia Pty Ltd (the s.399A Applicant) is directed to file with the Fair Work Commission, and serve on Shannon Kelper (the s. 399A Respondent), an outline of submissions, witness statements and other documentary material the s.399A Applicant intends to rely on in support of the application in this matter by 4pm on 3 August 2022.
The s.399A Respondent is directed to file with the Fair Work Commission, and serve on the s.399A Applicant, an outline of submissions, witness statements and other documentary material the s.399A Respondent intends to rely on in opposition to the application in this matter by 4pm on 10 August 2022.
The s.399A Applicant is directed to file with the Fair Work Commission, and serve on the s.399A Respondent, any reply material, that is, any witness statements and other documentary material in reply to the s.399A Respondent's witness statements and documents by 4pm on 17 August 2022.
Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4pm on 10 August 2022.
The Applicant did not comply with the s.399A Direction 2, and on 16 August 2022, my Chambers sent an email as follows:
“Dear Parties,
I note the 399A Respondent has not complied with Direction 2 of the Commission’s Directions issued on 27 July 2022 (Listing Directions). Please see below Direction:
2. The s.399A Respondent is directed to file with the Fair Work Commission, and serve on the s.399A Applicant, an outline of submissions, witness statements and other documentary material the s.399A Respondent intends to rely on in opposition to the application in this matter by 4pm on 10 August 2022.
The Applicant is required to email Chambers by 12:00pm on 17 August 2022 with their submissions and other materials, or otherwise advise the Commission of any request for extension, discontinuance, or other matter affecting submission.
I draw the parties’ attention to Note c) of the Listing Directions, reproduced below:
c) Any request for an extension of time for the filing of materials, or for an adjournment of the arbitration hearing, must be made as soon as practicable and must be based on substantial grounds. Noncompliance with directions will not otherwise be tolerated.
Please note that any materials must be filed with the Commission via email to this address, being [email address].
Mr Kepler, you are advised that, as your matter is listed for s.399A dismissal hearing, if you do not respond and/or attend the Hearing, your matter may be dismissed.”
I note that the Respondent filed submissions in accordance with s.399A Direction 1 and indicated that they did not wish to file any further submissions in reply pursuant to s.399A Direction 3.
On 18 August 2022, the s.399A Hearing was held, and the Respondent’s representative, Mr Gething, continued his appearance on behalf of the Respondent. The Applicant did not attend, and at 10:11AM, my Chambers wrote to the Applicant as follows:
“Dear Mr Kepler,
The above matter is listed for Hearing at 10:00AM Today.
You are required to attend this Hearing. The Hearing can be accessed by using the link on the Notice of Listing in this matter, which I have copied below for your reference. If you have difficulty joining the Microsoft Teams meeting, please contact Chambers urgently on [telephone number], or via email in reply.
Microsoft Teams details for Hearing:
[Microsoft Teams dial in details]
Please be advised that, should you fail to attend the s.399A Hearing listed for today, the s.399A application made by Invocare Australia Pty Ltd may be heard in your absence, and your matter may be dismissed.”
While my Associate contacted the Applicant via telephone at 10:01AM and 10:11AM, neither call was answered, and no response to the voicemail messages left was received from the Applicant.
At 10:15AM, the Hearing commenced, and the Respondent made short oral submissions in respect of their s.399A Application, and indicated they wished to rely upon their written submissions.
At 10:18AM, after the commencement of the Hearing, my Chambers received an email from the Applicant, being a forwarded email containing content identical to the email sent to my Chambers on 21 July 2022 at 3:19PM, which is described earlier in this Decision.
During the Hearing, I indicated that I would provide the Applicant an opportunity to submit an explanation for their non-attendance, and an email to that effect was sent to the parties following the adjournment of the Hearing at 10:31AM:
“Dear Mr Kepler,
I refer to the above matter, and to the correspondence sent to you below in respect of the s.399A Hearing listed for 10:00AM today.
I note that you did not attend the Hearing, and that you were contacted via telephone and email in respect of your non-attendance. The Hearing was held, and Invocare Australia Pty Ltd (the s.399A Applicant) attended. The matter was heard in your absence, and the matter has been adjourned.
In the course of the Hearing, the Deputy President indicated that you (the s.399A Respondent) would be provided with a further opportunity to explain your non-attendance at the Hearing. I advise that you may file a submission, via email to Chambers, by no later than 12:30PM AEST today, 18 August 2022 explaining your absence from the Hearing held this morning, with any relevant evidence. If you do not respond, or do not provide a sufficient explanation for your non-attendance, the Deputy President will reserve his decision at 12:30PM, and a decision will be issued in the matter in due course.
You are advised that a failure to provide a sufficient explanation for your non-attendance may result in your matter being dismissed.
I note that you have emailed Chambers this morning, at 10:18AM forwarding your prior correspondence to Chambers from 21 July 2022. This email did not copy the s.399A Applicant, and is attached for their reference. Please note that this email has not been considered as a submission in explanation of your absence, and you are required to provide a submission as outlined above.”
No submission was received in response to my Chambers’ email of 10:31AM. My Associate again attempted to contact the Applicant via telephone at 12:11PM, and the Applicant did not answer, or respond to the voicemail message left.
Relevant Legislation
Section 399A of the Act provides as follows:
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
The Commission has the discretion to dismiss an unfair dismissal application under s.399A of the Act on application by an employer, in circumstances where there has been an unreasonable failure to attend a conference or a hearing held by the Commission in relation to the application, or unreasonable non-compliance with directions of the Commission.
The Explanatory Memorandum to the Fair Work Amendment Bill 2012, which amended the Act to include the provision, said in relation to s. 399A applications, that the intention of the provision was “to address the small proportion of applicants who may pursue claims in an improper and unreasonable manner...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.”[2]
In Adrian Whittaker v Total Harvesting Pty Ltd T/A Total Harvesting,[3] (“Whittaker”) Deputy President Clancy summarised the relevant principles in considering s.399A, drawing on a decision of the Full Bench of the Australian Industrial Relations Commission in Ghalloub v Aon Risk Services Australia Limited, [4] (“Ghalloub”). The Deputy President summarised the relevant principles as follows:
“The role of case management was discussed by the Full Bench of the Australian Industrial Relations Commission in Ghalloub v Aon Risk Services Australia Limited (Ghalloub). In summary, that decision outlined the following principles:
1.the starting point of any consideration of an application to dismiss is that an applicant is entitled to have his or her case heard;
2.directions play an important role in case management;
3.accepting the importance of case management principles, only in extreme circumstances should a party be shut out from litigating an issue which is fairly arguable;
4.the circumstances of each case is central;
5.a history of non-compliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period of time is relevant;
6.continuing non-compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.”
The sixth principle outlined in Whittaker directs focus on the circumstances of the Respondent, which are undoubtedly a relevant consideration arising from the objects of the Act. As the Full Bench observed in Viavattene v Health Care Australia[5](“Viavattene”):
“... 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).”
Section 381 of the Act provides:
Object of this Part
(1) The object of this Part is:
(a)to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii)the needs of employees; and
(b)to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii)address the needs of employers and employees; and
(c)to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(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.
Note: The expression "fair go all round" was used by Sheldon J in in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.
In Lockyear v Cox,[6] Justice Ross outlined the steps that must be taken prior to consideration of an application made pursuant to s.399A of the Act:
“[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 [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 matter 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.”
(footnotes omitted)
The Applicant was aware, from the series of correspondence from my Chambers and the Respondent, of the s.399A application, was advised on multiple occasions that their matter may be dismissed, and was given significant opportunity to both respond to the s.399A application and explain any delay in filing such response after those timeframes had expired. The Applicant did not avail himself of the opportunity to respond to the s.399A Application, was contacted on several occasions to advise that compliance was required, and did not attend the conference or make any oral submissions in respect of the s.399A Application.
The Applicant was aware of the requirement for him to file and serve materials he intended to rely on in support of the Application. This requirement was set out in the Directions, and their amendments, and a further opportunity to explain the delay was offered in the s.399A Directions. The Applicant repeatedly and unreasonably failed to comply with any of the directions made by the Commission to file and serve materials in support of the Application without explanation.
The Applicant’s failures have occurred in circumstances where he was clearly informed about:
(a) the necessity to comply with the directions; and
(b) what could occur if he did not comply with the directions; and
(c) the resources available to assist him to prepare the requisite materials; and
(d) the Respondent’s objection to the issue of his non-compliance; and
(e)a s.399A application being the potential consequence of non-compliance with directions.
Those failures have been further compounded by the Applicant’s failure to comply with the s.399A Direction, or attend the hearing of the s.399A Application.
The Respondent has throughout appropriately sought to ensure the Applicant’s compliance with all directions issued. That has without doubt resulted in unnecessary expense to the Respondent. It would be unfair to the Respondent to allow these protracted proceedings to continue.
In the circumstances of this matter it is appropriate that I exercise my discretion to dismiss the Application pursuant to s.399A(1)(b) of the Act as sought by the Respondent.
The s.399A Application in this matter is granted, and the Application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr B Gething, of the Respondent.
Hearing details:
2022.
August 18.
Sydney (via videoconference).
[1] Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWCFB 6015.
[2] Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161]-[163].
[3] [2018] FWC 1583, at [24]; See also Ingui v MSS Security Pty Ltd [2018] FWC 2201, decision of Masson DP.
[4] Print PR956665, 21 March 2005, Giudice J, Hamilton DP and Larkin C.
[5] [2013] FWCFB 2532, at [39].
[6] [2021] FWCFB 875.
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