Mr Thomas Rosier v Mackay Sugar Limited

[2013] FWC 9269

[2013] FWC 9269

FAIR WORK COMMISSION

DECISION

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

Mr Thomas Rosier
v
Mackay Sugar Limited
(U2013/2592)

COMMISSIONER SPENCER BRISBANE, 10 DECEMBER 2013

Application for relief from unfair dismissal - s.399A application to dismiss - unreasonable failure to comply with Direction in a matter.

[1] This decision relates to an application, filed on 4 August 2013, by Mr Thomas Rosier (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) alleging that the termination of his employment from Mackay Sugar Ltd (the Respondent) was harsh, unjust or unreasonable (the application).

[2] The Respondent filed a Form F3 Employer’s Response to Application for Unfair Dismissal Remedy in response to the application, on 9 September 2013.

[3] The application was listed for conciliation before a Fair Work Conciliator, on 12 September 2013; the matter was not resolved.

[4] The matter came before the Commission, as presently constituted, for arbitration.

Background

[5] The Applicant was employed by the Respondent as a Financial Accountant, and had been so since April 2007.

[6] The Respondent submitted, by way of its Form F3 Employer’s Response, that the Respondent had various performance concerns regarding the Applicant’s performance. It is unnecessary to consider these matters in the context of this decision.

[7] The Applicant submitted, in his originating application, that he was constructively dismissed from his employment on 16 July 2013 (there is some dispute between the parties as to the exact date of the dismissal which is not relevant to this decision). The Applicant stated that the Respondent but the option to him to resign, or be terminated. The Applicant stated that he reluctantly resigned.

[8] The matter was listed for Mention/Conciliation before the Commission on 17 October 2013, by telephone. The Applicant appeared on his own behalf. The Respondent appeared, with permission, by Ms Hedy Cray, Partner, Clayton Utz.

[9] The matter did not resolve so Directions were issued to both parties for the filing of material and submissions in the matter. By consent, the matter was listed for a two day Hearing in Mackay.

[10] Importantly the Directions issued to the Applicant directed the Applicant to:

“The Applicant is to serve on the Respondent and file with the Fair Work Commission (the Commission) a list of materials he requires from the Respondent by 4.00pm Thursday, 7 November 2013.”

[11] And further:

“The Applicant is required to file the following material with the Commission, and serve a copy on the Respondent, by no later than 4.00pm Thursday, 7 November 2013:

(a) Opening submissions outlining the application and the grounds on which it is made; and

(b) Affidavits for each of the witnesses the Applicant intends to call at the hearing.”

[12] The parties were strictly directed in relation to submissions and affidavits as follows:

“The Submissions must include all relevant facts, dates and incidents to support all claims made. The Submissions are specifically required to address the elements of s.387 of the Fair Work Act 2009 (Cth), namely:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

The signed Affidavits are required to outline the evidence-in-chief of each witness that the party intends to call at the hearing. All documents referred to in the Affidavit are required to be attached as an Annexure to that Affidavit, and numbered accordingly.

Please note that Affidavits are designed to take the place of evidence-in-chief and accordingly leave must be sought prior to advancing any further evidence-in-chief.” (emphasis in original)

[13] The parties were also advised that late submissions would not be accepted, as follows:

“The Commission will not accept material that is filed after the expiry of a timeframe unless an extension has been sought from and granted by the Commission prior to the expiry of that timeframe.

Requests for an extension of time must be made to the Commission in writing in a timely manner and specify substantial grounds. Parties must not assume an extension will be granted.”

[14] The Directions were issued, by email, on 23 October 2013. The email address used by the Commission, for the purposes of sending the Directions to the Applicant, was the email address provided by the Applicant on his originating application. This email address was also used for previous correspondence and listings issued by the Commission, to which the Applicant had responded. The Commission’s file also includes an email from the Applicant, specifically from this email address, prior to the Directions being issued.

[15] On Monday, 11 November 2013, the Commission received correspondence from the Respondent’s representative, querying whether the Commission had received any materials from the Applicant, in accordance with the Directions of 23 October 2013. This correspondence was copied to the Applicant’s email address. The Commission confirmed to the parties that no material had been received from the Applicant; electronically or otherwise.

[16] Also on 11 November 2013, the Respondent filed the present application. Relevantly the correspondence stated:

“Accordingly we ask that the Commission exercise its powers under section 399A of the Fair Work Act 2009(Cth) and dismiss Mr Rosier’s Application (sic) for an unfair dismissal remedy by reason of his failure to comply with the Directions, specifically paragraph 12.”

[17] This application was copied to the Applicant by email and post.

[18] On 11 November 2013 the Commission caused correspondence to be sent to the Applicant, in hardcopy and by email, which stated:

“I refer to the Directions issued on 23 October 2013 and the correspondence of Ms Cray, of Clayton Utz, dated 11 November 2013 (enclosed).

The Respondent has applied for the Commission to dismiss your application for an unreasonable failure to comply with Directions of the Commission relating to the application.

The Commission refers you to s.399A of the Act as follows:

[s.399A of the Act was extracted]

In considering whether to dismiss your application the Commissioner seeks any submissions you wish to make in relation to your non-compliance with the Directions. Such submissions must be provided, in writing, by no later than close of business on Friday, 15 November 2013. If no submissions are received by this time the Commission will consider that you do not wish to be heard in relation to the Respondent’s s.399A application.”

[19] On 12 November 2013, the Applicant replied, by email, to the Commission’s email of 11 November 2013 referred to above. The Applicant stated:

“Please confirm what directions I have and I will attend too”

[20] This was the entire response received from the Applicant..

[21] The Commission replied by email, also on 12 November 2013, as follows:

“I refer you to the Directions issued, by email, on 23 October 2013 (attached), and Directions [1] and [3] that required the Applicant to file submissions and materials in the matter by no later than Thursday, 7 November 2013.

The Commission further refers you to the correspondence of 11 November 2013 enclosing an application, made by the Respondent, to dismiss your application for unreasonably failing to comply with those Directions. I confirm that in considering whether to dismiss your application the Commission has directed you to provide any reasons for such failure by no later than close of business on Friday, 15 November 2013.”

[22] The Commission attached to this email, the original email, of 23 October 2013, which issued the Directions in the substantive matter.

[23] The Applicant replied, by email, on 13 November 2013 as follows:

“I have been ill will attend to, please note my mailing address is (address removed)”

[24] This was the entire response received from the Applicant. This correspondence was copied to the Respondent.

[25] The Commission clarified, by email, on 14 November 2013, as follows:

“The Commissioner refers you to the email from Chambers of 11 November 2013.

To confirm the Commissioner has directed you to file any reasons for your failure to comply with the Directions by Friday, 15 November 2013. The Commissioner has otherwise vacated the Directions in this matter until such time as she has considered the s.399A application to dismiss the matter.

I note that you refer to your recent illness. If you wish to submit that this is the reason for your failure to comply with the Directions, you may do so, but must also include relevant evidence of such illness (eg hospital admission forms, medical certificates specifying the nature of the illness). You should also include a submission as to why no application was made, by you, or on your behalf, for an extension of time in relation to the filing of your materials.”

[26] The Applicant responded, by email, on 18 November 2013, as follows:

“I am still unwell, being treated for depressive disorder and well as a very bad back. I will supply medical forms ASAP”

[27] This was the entire response received from the Applicant.

[28] On 19 November 2013, the Commission responded, as follows:

“The Commissioner set Directions that required compliance by the Applicant for the filing of materials in this matter. These Directions were not complied with and a subsequent application to dismiss the application was filed by the Respondent.

The Directions were vacated and the Applicant was directed to respond to the application to dismiss by no later than close of business on Friday, 15 November 2013. Further email exchanges occurred between the Applicant and the Commission regarding this Direction.

The Applicant has not complied with this additional direction. The Commission provides a final opportunity to the Applicant to respond to the application to dismiss, filed by the Respondent, and directs the Applicant that any reasons, including any medical evidence, must be filed, and served upon the Respondent, by no later than close of business on Thursday, 21 November 2013. After this time the Commission may consider the application to dismiss on the material presently before the Commission.”

[29] The Applicant responded, by email, as follows:

“Please find below my response to Commission. I apologise for the delay as I have been unwell.

List of details required from Mackay Sugar

(1) copies of all PMDS reviews over the past 6 years

(2) copy of letter of termination

(3) comprehensive list of dates and times unauthroised absence from work

(4) copy of cash forecast KPI's outcomes

(5) copy of Executive Committee minutes discusing my termination 

(6) detailed forensic report on the $500,000 Excel error incudling who could of accesssed file, security of file

(7) copy of so called "secret error log" made by Mackay Sugar

(8) details as to who replaced me at Mackay Sugar and copy of employment contract

(9) copy of DP1 and DP2 notices back and front

(10) copy of possible bonus details and copy of bonus calculations

(11) copy of my Position Description

(12) copies of all training records for the applicant

(13) copy of employment contract

Reason for Application

Unfairly dismissed for no valid reason given in writing

Witness to be called

(names removed)” (errors in original)

[30] This was the entirety, minus the names of witnesses which have been removed, of the correspondence. No documents were attached to the email. No correspondence or further documents have been received by the Commission in hardcopy.

[31] Also on 19 November 2013, the Respondent replied, by email, to the Applicant, with a copy to the Commission, in part, as follows:

“The Directions you have purported to partially comply with have been vacated.

You are required to comply with the Further Directions as outlined above.

Mackay Sugar has made an application under s399A Fair Work Act 2009 to have your unfair dismissal application dismissed.

Mackay Sugar puts you on notice that the emails provided to date do not satisfy the Further Directions.

You have been provided until 21 November 2013 to provide further information.”

[32] On 20 November 2013 the Applicant replied, by email, directing his correspondence to the Respondent’s representative as follows:

“Please confirm by COB today what further details you require.”

[33] Ms Cray, the Respondent’s representative, responded on 20 November 2013, as follows:

“It is not for me to advise you on these matters.

You are required to comply with the Commission's directions.

You have a copy of the further communication from the Commission dated 19 November 2013, providing a further opportunity for you to comply with the directions. An additional copy is attached. This email addresses the Commission's emails and directions of 12 and 13 November as well as 19 November 2013.

If you require assistance to understand what is required of you, we encourage you to take your own legal advice in relation to compliance with the Commission's directions.

We have otherwise outlined to you that our client does not consider your emails to date as compliance with the Commission's directions and that it will maintain its application for your unfair dismissal application to be dismissed as outlined in our letter yesterday under section 399A of the Fair Work Act.”

[34] On Monday, 25 November 2013, the Respondent’s representative corresponded with the Commission, with a copy to the Applicant as follows:

“Failure to comply with Directions

We refer to the Commissions directions issued on 23 October and confirmed in emails dated 12 and 19 November 2013 giving Mr Rosier further time to respond to Directions until 21 November 2013.

We understand that the Commission has not received anything further from Mr Rosier as at Friday 22 November 2013.

We confirm that neither our office, nor our client, has received anything from Mr Rosier.

We ask that the Commission deal with the matter on the papers, to dismiss Mr Rosier's Application for unreasonable failure to comply with the Commission's Directions issued on 23 October 2013, pursuant to section 399A Fair Work Act 2009 (Cth).”

[35] The Applicant responded on 25 November 2013, saying “I sent an email 20 Nov”. This is understood to be a reference to the Applicant’s purported compliance with the original Directions by way of his email 20 November 2013 (extracted above).

[36] The Commission confirmed that, consistent with the previous correspondence, the Commission reserved its decision in relation to the s.399A application to dismiss, and would consider such on the basis of the material presently before the Commission.

[37] On Tuesday, 26 November 2013, the Applicant responded, by email, asking “please advise what additional information the commission (sic) requires”. This email signed off “sent from Huawei Mobile”.

[38] The Commission again confirmed that Directions had already been issued and that the Commission reserved its decision in relation to the s.399A application to dismiss.

Legislation

[39] Section 399A of the 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.

[40] 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.

Consideration

[41] The Respondent has applied for the Commission to dismiss the Applicant’s application.

[42] There can be no doubt that the Applicant has failed to comply with the Directions of 23 October 2013. The Applicant was directed to specify the list of materials he sought from the Respondent, by no later than 4.00pm on Thursday, 7 November 2013. He did not do so. The Applicant was also directed to file submissions and affidavits of witnesses by this time also. He did not do so.

[43] The question for consideration then becomes, was the Applicant’s failure, to comply with the Directions of 23 October 2013, unreasonable?

[44] The Commission provided opportunities for the Applicant, on two occasions, to explain his failure to comply, being the correspondence of 11 November 2013 and the further correspondence of 12 November 2013. The Applicant replied, also on 12 November 2013, to which the Commission further clarified, that the Commission was considering dismissing his application, in response to the application of the Respondent, and that he was to provide any reasons for his failure to comply. The Commission also clarified with the Applicant that he should provide medical evidence if he intended to rely upon his stated medical difficulties. The Applicant confirmed that he would do so by his correspondence of 18 November 2013. The Applicant did not do so.

[45] The Commission provided a further opportunity to the Applicant to provide reasons for his failure to comply, and appropriate evidence of such.

[46] In response, the Applicant has purportedly complied with the Directions by filing a short email listing those documents he sought to be produced by the Employer. This list was the initial matter that was to be complied with (a number of weeks earlier) in relation to the Directions for disclosure. Further he provided a nine word sentence, as to the alleged unfairness of his dismissal, and a brief list of witnesses. Even if this correspondence was accepted, which it is not, the Applicant was advised by the Directions of 23 October 2013, that late submissions would not be accepted and that any request for an extension on the dates for filing material, must be made prior to the timeframe expiring. The Applicant was given specific instructions on the purpose and content of submissions and witness affidavits. None of these directions and instructions has been complied with by the Applicant. His purported compliance of 19 November 2013 does not discharge the requirements of the directions and therefore, does not cure his non-compliance.

[47] Following the Applicant’s purported compliance, the Respondent confirmed it’s view that the Applicant had still not complied with Directions and that in any event the Directions had been vacated by the Commission, and further Directions issued in relation to the s.399A application to dismiss.

[48] The Commission is satisfied that the Applicant has had a sufficient opportunity to provide any reasons, and evidence, for his failure to comply with Directions. The Commission is further satisfied that the Applicant has not provided sufficient evidence to substantiate his claim as to his medical difficulties, despite being directed to do so. The Commission is satisfied that the Applicant’s failure to comply with the Directions of 23 October 2013 was unreasonable.

[49] It is noted that at no stage throughout the correspondence, extracted above, has the Applicant claimed that he did not receive the Directions, was unaware of their existence, or justified any incapacitation so as to prevent his compliance or applying for an extension of time. Some of the Applicant’s correspondence has been received from a mobile device which indicates the Applicant has ready access to his personal emails.

Conclusion

[50] The Applicant has failed to comply with Directions of the Commission relating to this application.

[51] The Applicant has provided unsatisfactory reasons for such continued failure to respond, and further has failed to establish, by any evidence, any reasons for non-compliance, despite being advised to do so by the Commission and confirming that he would do so. The Applicant’s failure is unreasonable.

[52] The application, filed pursuant to s.394 of the Act, is dismissed pursuant to s.399A(1)(b) of the Act.

[53] I Order accordingly.

COMMISSIONER

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