Newbond v GM Holden Ltd

[2015] FWC 6024

[2015] FWC 6024 [Note: An appeal pursuant to s.604 (C2015/6748) was lodged against this decision - refer to Full Bench decision dated 6 November 2015 [[2015] FWCFB 7622] for result of appeal.] [Note: A further appeal pursuant to s.604 (C2015/6748) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

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

Mr Bradford Newbond
v
GM Holden Ltd
(U2014/16617)

COMMISSIONER WILSON MELBOURNE, 2 SEPTEMBER 2015

Application for relief from unfair dismissal - s.399A application for non compliance with an order - application granted.

[1] Mr Newbond was employed by GM Holden Ltd at its Holden Service Parts Operation (HSPO) at Dandenong between 11 February 2002 and 10 December 2014. He was employed as a Storeworker and at the time of dismissal worked on an afternoon shift in the Respondent’s National Distribution Centre.

[2] On 10 December 2014, Mr Newbond was dismissed for misconduct and in particular for what are said to be threatening and intimidatory comments made by him to his supervisor. The conduct is alleged to have occurred during November 2014, with the conduct then being investigated by GM Holden.

[3] Having been dismissed on 10 December 2014, Mr Newbond made an application for unfair dismissal that was received in the Fair Work Commission on 22 December 2014.

[4] After the matter failed to settle at conciliation, the matter was listed for hearing in the usual manner, initially in May 2015 and directions were issued for the filing of material by each party, in the form of outlines of submission and witness statements upon which the parties relied.

[5] In response to those directions, the Applicant’s then representative filed material on 7 April 2015, which consisted of an outline of submission and one witness statement, being that of Mr Newbond.

[6] The Respondent filed its material on 1 May 2015, which consisted of an outline of submission and witness statements of six people, namely;

• Wayne Sutcliff – Export Supervisor, National Distribution Centre;



• Luke Maunsell – Operations Manager, National Distribution Centre



• Phillip Wallace – Supervisor, National Distribution Centre



• Valerie Carver – Storeworker, National Distribution Centre



• Zacharias Skaftouros – Storeperson, National Distribution Centre



• Ingrid Harvey, a former employee of GM Holden, formally holding the position of HR business partner

[7] At around the same time as the Respondent filed its material, the Applicant advised the Commission that his representation had changed and that he sought an adjournment of the hearing dates in order for his new representative to become familiar with the matter. That request was refused by Deputy President Gooley on 8 May 2015.

[8] An application pursuant to s.590 of the Fair Work Act 2009 (the Act) for an Order for the Production of Documents was also sought by the Respondent during May, near to the time the matter was allocated to Commissioner Blair for hearing. Also around the same period the Applicant advised Commissioner Blair’s Chambers that he had changed his representative and made a renewed request for an adjournment.

[9] After further consideration of these requests, both applications were granted by the Commission. The Order for Production of Documents was granted on 13 May 2015, and the adjournment request on 14 May 2015.

[10] The order made by the Commission at the request of the Respondent for the production of documents by the Applicant was issued by the Commission on 13 May 2015, with the order requiring production of documents to the Fair Work Commission by 4:00 PM on the same day. The correspondence attaching the order from the Commission to the Respondent for it to serve on the Applicant was sent at 3:18 PM on 13 May 2015. The Respondent confirmed to the Fair Work Commission at 9:37 PM on that day that it had served the order on the Applicant.

[11] Also on 13 May 2015, at 5:20 PM, the Applicant’s new representative, A Whole New Approach, filed its Form F53 Notice of Representative Commencing to Act, along with a reiterated adjournment request.

[12] The return date and time for the order for the production of documents was never amended, and at all times, has remained 4:00 PM on 13 May 2015. The practical effect of the time at which the order was issued by the Commission is that the Applicant was, in all probability, already in breach of the order by the time it was served upon him.

[13] The order made by the Commission was largely upon terms proposed by the Respondent appearing to have been issued without substantive alteration. The order made by the Commission required production of “the documents, records and other information specified in the Schedule to this order” with the schedule itself comprising the following;

“SCHEDULE

1. The Applicant appears to quote a number of persons in his witness statement. The Applicant is required to disclose on what evidence he is relying to support these quotes and if he is relying on taped conversations, the Applicant is required to provide the Respondent with access to those tapes.

2. The Applicant attaches what appear to be excerpts from a diary to his witness statement. The Applicant is required to disclose whether he has been keeping a diary of his interactions at GM Holden. If he has been keeping such a diary, the Applicant is required to provide the Respondent with access to that diary.

3. The Applicant seeks compensation as an alternative to reinstatement. The Applicant is required to disclose what income he has received since the termination of his employment on 10 December 2014 and is also required to provide the Respondent with access to copies of his bank account statements for the period December 2014 to date.”

[14] Consistent with usual practice, the order indicated on its front to the Applicant that “you can apply to have this order set aside or varied”.

[15] In practical effect, and viewed within the context of the matters disclosed in the parties’ respective submissions and witness statements, the order required the production by the Applicant of four things to the extent that those things were in his possession, namely;

• Any voice recordings in the Applicant’s possession of conversations upon which he relied in his evidence;



• The diary, if one existed, comprising the contemporaneous record of conversations upon which the Applicant relied in his evidence;



• Any document disclosing income received since the termination of his employment; and



• The Applicant’s bank account statements for the period between December 2014 (presumably 1 December 2014) and the date upon which the order was issued, 13 May 2015.

[16] On Thursday, 14 May 2015 at 1:28 PM the Applicant’s representative, Ms Skilbeck of A Whole New Approach, wrote to the Associate to Commissioner Blair in relation to the order that had been served upon the Applicant on 13 May 2015. 1

[17] That correspondence took issue with the content of the order and made a number of objections.

[18] Shortly after receiving the correspondence from the Applicant’s representative, on 14 May 2015 the Associate to Commissioner Blair responded by indicating that the Commissioner had considered the views of the parties in relation to the granting of an adjournment and that he would grant that to them, as well as to encourage their discussions with a view to settlement of the matter.

[19] On 18 May 2015, Ms Anderson, GM Holden’s National ER/IR Lawyer, communicated with the Applicant’s representatives indicating a number of things, including that she regarded the Applicant as having failed to comply with the order requiring production of documents, and requesting confirmation of when the Applicant intended to comply with the order. The correspondence does not appear to have been dealt with by the representative until late in July 2015.

[20] There is nothing on the file that would indicate that the order given by the Commission on 13 May 2015 was ever varied or set aside.

[21] On 14 July 2015, Ms Anderson wrote to the Applicant’s representatives again drawing their attention to a failure on the part of the Applicant to have complied with the order granted in May. 2 In the course of the correspondence, Ms Anderson set out in detail to the Applicant’s representative what she would regard as compliance with the order.

[22] Correspondence from Ms Skilbeck, the Applicant’s representative, to Ms Anderson on 27 July 2015 advised the Respondent she had written to Commissioner Blair’s Chambers in May 2015 objecting to the order after it was made and proposing certain amendments to the order. 3 She notes that no outcome was reached regarding her correspondence. Further she notes that the Applicant maintains his strong objection to the order. In addition to making those points, Ms Skilbeck provided Ms Anderson with the following additional information;

“The Applicant maintains his strong objection to the Order, however in the spirit of dealing with this matter expeditiously, he has instructed us to provide you with the following information:

1. The Applicant has already submitted the evidence he wishes to rely upon in his case. He does not possess tapes of relevant conversations, and, quite clearly, is not relying on taped conversations.

2. The Applicant took notes of workplace events from time to time, however this does not constitute a diary. You have already received the witness statement of the Applicant. I have attached some of his additional notes.

The Applicant confirms that he has not received any income from any other employers since his dismissal. The Applicant reasserts his objection to the Respondent seeking copies of his bank account since this is an unreasonable and unnecessary intrusion into his personal affairs. He has not sought work and is involved in worker's compensation litigation. He seeks reinstatement and is not seeking compensation via his unfair dismissal claim. It is therefore unnecessary for him to provide bank details.” 4

[23] Later the same day, just four minutes after Ms Skilbeck’s correspondence was sent, Ms Anderson responded to the Applicant that she was not satisfied with the response and informed the Applicant and his representative that the Respondent viewed it as not constituting satisfactory compliance with the Commission’s Order to Produce. She noted that GM Holden Ltd had already applied at that time for Mr Newbond’s case to be dismissed for reason of his failure to comply with the Order to Produce. 5

[24] The file records that GM Holden Ltd made an application to the Commission for dismissal of Mr Newbond’s application pursuant to s.399A of the Act on 27 July 2015 at 3:19 PM for reason of his failure to comply with the Commission’s Order for the Production of Documents.

[25] The matter proceeded to me, with my initial view being that it was not, in all the circumstances, appropriate to grant the application at that time, and on the basis of the material then before me in summary form, with the Respondent being given liberty to apply to be heard in detail about its reasons for the application if it wished to press the application. It has now done that, providing detailed written submissions about the circumstances of the matter. The Applicant was provided with an opportunity to provide similar further material to the Commission for its consideration and the hearing was conducted on 27 August 2015.

[26] The provisions of s.399A are to allow dismissal of unfair dismissal applications for the unreasonable failure by an applicant to do certain things, with the section providing the following;

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.”

[27] The Commission has held that applications for dismissal of this type involving non-compliance under s.399A require an examination only of the circumstances in which the failure has come about. In the matter of Allen v Army and Air Force Canteen Service, Senior Deputy President Richards held the following about the operation of s.399A;

“[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.” 6 (reference omitted)

[28] That decision was concerned with the failure by an applicant to comply with directions for filing of materials relevant to the hearing and determination of the matter. In holding, as set out above, that an evaluation of the merits of the originating application or the prejudice that may accrue to the Respondent from non-compliance was not required, the Senior Deputy President viewed the provisions of s.399A as requiring only an objective evaluation of the reasonableness of the applicant’s actions and the consequential non-compliance with the Commission’s requirements, which in that case were directions for the orderly hearing of the matter.

[29] He distinguished the matter before him from that referred to by the Full Bench in Re: Sayer, 7 decided under legislation applying before the commencement of s.399A. In that case, involving a question of dismissal for want of prosecution, the Full Bench had held that where a matter is determined in the absence of an applicant, it may be prudent for there to be an examination of whether the respondent had some defence to the claim.8 The Full Bench also held, in that case, a taking into account of the criteria within s.387 of the Act was necessary.9

[30] In Lunt v Qube Ports, 10 Commissioner Bissett dismissed an unfair dismissal application for the failure of an applicant to comply with an order of the Commission, holding there had been an unreasonable failure to comply with the direction or order of the Commission.11 In Lunt, the Commissioner was satisfied that the Applicant had been suitably served with all relevant documents and dismissed the matter in the absence of any contact or explanation from the Applicant. She undertook no evident evaluation of the merits of the originating application or the prejudice that would accrue to the Respondent through the failure of the Applicant to comply with the order.

[31] The approach taken in Allen and Lunt is distinguishable from that articulated in Ghalloub v AON Risk Services Australia Ltd, 12 a Full Bench matter within the earlier statutory context of the Workplace Relations Act 1996 and involving the failure of the applicant to comply with directions for the filing of materials for hearing. In that matter, the Full Bench took the approach that;

“[22] While we have traced the procedural history in some detail, when that history is examined the issues are relatively easy to summarise. The Senior Deputy President issued directions for a hearing on 23 September 2004. It is not in dispute that neither the appellant nor the respondent fully complied with those directions. Fresh directions, in a different form, were made on 23 September for a hearing to be held on 7 December 2004. It is not in dispute that neither the appellant nor the respondent fully complied with those directions either. When the Senior Deputy President raised the question of whether the application should be dismissed, the respondent neither supported nor opposed that course of action. The appellant opposed it. The Senior Deputy President then dismissed the matter for want of prosecution.

[23] We take as the starting point the proposition that an applicant pursuant to s.170CE is entitled to have his or her case heard and that there is a corresponding duty upon a member of the Commission to whom an application has been allocated to hear the application.8 The right to a hearing is qualified by the terms of the Act, e.g. ss.170CEA and 170CIB, and by the operation of principles relating to the summary dismissal of an application in response to a submission by the respondent that there is no case to answer.9 In this case the Senior Deputy President dismissed the appellant’s case for want of prosecution. It is clear from the terms of the decision that in the Senior Deputy President’s opinion the appellant’s failure to comply fully with the Commission’s directions required that the proceedings be dismissed. This appeal therefore raises for consideration a further possible qualification upon the right of an appellant to have his or her case heard and upon the duty of the Commission to hear the case, a qualification arising from a failure to comply with procedural directions.”

[32] Ghalloub was concerned with an appeal under the legislation then applying, requiring attention not to whether the Commission’s orders had been the subject of an unreasonable failure to comply, but to an examination, in the whole context of the case, including its merits and prejudice to the other side. 13

[33] In this matter, I concur with the approach taken by Senior Deputy President Richards in Allen, for the reason that the decision properly articulates the approach to the current legislation, which is featured by the specific dismissal provisions of s.399A.

[34] The Applicant submits that there is no jurisdiction for the Commission to dismiss Mr Newbond’s unfair dismissal application for a failure to comply with an order. It is argued that enforcement action could only be undertaken by a Court, and that it would be anomalous for the Commission to dismiss an unfair dismissal application for reason of failure to comply with an order, in circumstances where ordinarily the Commission lacks power to enforce the order.

[35] I reject that submission. The Commission’s jurisdiction on the matter is to be found within s.399A. Jurisdiction exists to proceed as has been applied for by the Respondent, with determination of the matter to be in accordance with the tests within the section.

[36] Has then, the conduct of the Applicant, Mr Newbond, been to unreasonably fail to comply with an order of the Commission?

[37] Firstly, I am satisfied that Mr Newbond has failed to comply with the Order made by the Commission. The order comprises four essential elements, and I make the following findings about the Applicant’s compliance with those elements;

Access to recorded conversations

[38] The Applicant answered on 24 July 2015 and in the hearing, through his representative, that no such recordings are in the Applicant’s possession. While the response was made late, more than two months after the order was issued, it effectively answers item 1 of the Schedule to the order.

Diary of interactions at GM Holden

[39] In relation to the existence of a diary, I view the response from the Applicant’s representative as indicating that there was no such diary but that the Applicant took notes of certain events. The extent of those events and the notes kept by the Applicant has not been made clear. The choice of words within Ms Skilbeck’s response to Ms Anderson in July 2015 is interesting and appears carefully chosen, in as much as it says that “I have attached some of his additional notes” (emphasis added). A reasonable person reading that sentence would take the view that Ms Skilbeck has attached some but not all of any additional notes that might be held by the Applicant.

[40] The Applicant’s representative advised, in response to questions from me, that there were notes taken by the Applicant of his interactions at GM Holden pertinent to this matter that have yet to be disclosed to the Respondent. A reasonable person participating in proceedings before the Fair Work Commission, and represented by a frequently appearing representative in particular, would view the order for production of the “diary of his interactions at GM Holden” as being sufficiently broad as to encompass the notes of events that have yet to be disclosed.

[41] If such further diary notes exist and those notes relate to “his interactions at GM Holden” and they have not yet been provided to the Respondent, I view their withholding as being a failure to comply with the Commission’s order.

[42] In the absence of an unequivocal statement that all such diary notes have been provided to the Commission, I find the Applicant has not complied with item 2 of the Schedule to the order.

Evidence of income received since termination of employment

[43] On 24 July 2015, the Applicant’s representative, Ms Skilbeck, advised the Respondent that the Applicant had not received “any income from any other employers since his dismissal”.

[44] The Respondent argues this does not directly answer the order, since income could have been derived by the Applicant from other sources, including the operation of abusiness or investments.

[45] I agree with the Respondent that this aspect of the order is yet to be complied with. In providing the answer that he has not received income from employment and choosing his words carefully, the Applicant has not answered whether income may have been received from other sources and if it has, has failed to provide documents pertaining to that income.

[46] Having disclosed in the hearing, through his representative, that the Applicant has an investment property, it is likely income was received by him in the relevant period since termination of his employment on 10 December 2014 and that he has also likely failed to provide the documents pertaining to such income ordered for production by the Commission.

[47] Accordingly, I find the Applicant has not complied with the first sentence of item 3 of the Schedule to the order, dealing with his income received since termination.

Copies of bank account statements

[48] The Applicant concedes he has bank accounts and that he has not provided to the Commission any statements pertaining to those accounts. He submits that he has not done so for the reason that such is “an unreasonable and unnecessary intrusion into his personal affairs” as well as it being unnecessary because he seeks reinstatement and not compensation.

[49] I find that the Applicant has not complied with the second sentence of item 3 of the Schedule to the order, dealing with his bank account statements.

[50] The next matter for consideration is whether the Applicant has unreasonably failed to comply with the order made by the Commission on 13 May 2015.

[51] While the order made on 13 May contained a return time and date of the same date it was issued, the Applicant does not rely upon that matter as a defence to the Respondent’s claim that he has unreasonably failed to comply with the Commission’s order.

[52] On 14 May 2015, the Applicant’s representative, A Whole New Approach, wrote to Commissioner Blair objecting to aspects of the order that had already been made. Such objection was not an application to vary or set aside the order and the Commission did not treat it as such. On 24 July 2015 when the Applicant wrote to the Respondent on the matter, defending its inattention to the order, the Applicant’s representative, Ms Skilbeck, contended she had “sought amendments” to the order from the Commission which had not been responded to.

[53] While the correspondence from the Applicant’s representative to the Commission on 14 May 2015 could reasonably be construed as objecting to the terms of the order, it did not positively seek the order be varied or set aside. A paid agent with expertise in the Fair Work Commission would reasonably have understood that such application to vary or set aside an order would need to be made and would reasonably have understood that in the absence of variation or setting aside, the order remained extant and that it must be complied with.

[54] A representative, acting reasonably, would have advised their client accordingly and would have ensured compliance.

[55] A reasonable representative, faced with the circumstances of an order not complied with because of the timing matters referred to above would have sought, in the face of the risk of criticism from the Commission for non-compliance, another compliance date for the order.

[56] The file of this matter records settlement discussions were taking place in the period immediately after the date of the order being issued. No particular criticism is advanced of the Applicant or his representatives for waiting to see the product of those discussions, however, again, a reasonable representative would have sought another compliance date for the order if it proposed not to comply with the order until the completion of those discussions. In all the circumstances, it could be foreseen that many respondents would not object to an amendment to the return date for the reason of ongoing settlement discussions, as indeed would the Commission in circumstances in which a changed compliance date would not likely impede the orderly and timely hearing of the matter if the settlement discussions were not fruitful.

[57] None of these steps on the part of the Applicant’s representatives were evidently taken and so the representative’s conduct is open to a finding that it acted unreasonably. I make that finding.

[58] For his part, the Applicant attended the hearing of this matter, but did not give evidence. I draw the inference, and it being consistent with the inferences I may draw from other material before me, that his evidence on these matters would not have assisted his case.

[59] The Applicant’s representative’s correspondence to the Respondent on 24 July 2015 on the subject of notes held but not provided, indicated she attached “some of his additional notes”. In the hearing of this matter, it was submitted on behalf of the Applicant, that in relation to the notes of his interactions at GM Holden, that not all such notes had been provided to the Respondent, but that he had provided those upon which he relied. There was no endeavour to assist the Commission with information about the nature, scope or number of notes not yet provided to the Respondent.

[60] I formed the impression from the material before me that the Applicant was not embarrassed he had not provided to the Commission all the relevant notes in his possession and was not about to volunteer them either to the Commission or to the Respondent.

[61] In relation to the question of documentation being provided to the Respondent regarding the income earned by the Applicant since termination, the Applicant’s position appears to be that he does not need to provide information relating to earnings other than income as an employee. There does not appear to be an understanding or concession on his part or that of his representatives, that such documents may have relevance to the Commission’s proceedings. Both in respect of the income earned since termination and also the documentation relating to his bank statements, the sum total of the Applicant’s position appears to be that set out in his representative’s correspondence to the Respondent on 24 July, to the effect that he considers the requirement as an unreasonable and unnecessary intrusion into his personal affairs, and furthermore that it is simply unnecessary for him to provide the documents. Both within the correspondence from the Applicant’s representative and also within the hearing, there appeared to be no preparedness to submit to the order that had already been made by the Commission.

[62] In three important respects, the Applicant and his representatives have failed to provide documents to the Commission in the manner ordered; namely the provision of all diary or other notes pertaining to “his interactions at GM Holden”; the provision of information about and documentation pertaining to income from all sources earned since termination; and bank account statements for the period since December 2014. In each of those respects, I am satisfied that the Applicant and his representatives have unreasonably failed to provide such documents. I am satisfied that even with the chance to reflect upon the matter since the time the Respondent put the Applicant on notice that it regarded him as being in breach of the Commission’s order, and even with the prospect of the Applicant’s substantive unfair dismissal application being dismissed as a consequence, there have been no steps taken by either the Applicant or his representatives to ensure full compliance with the order, even at this late time.

[63] This is not a circumstance in which the Applicant or his representative have put to the Commission in the course of the hearing on the matter either that there is no information or documents to be provided in any of the three outstanding classes or, in the alternative, that they have all remaining documents ready to be tabled to the Commission.

[64] As a result, I am satisfied that the Applicant has unreasonably failed to comply with an order of the Commission relating to his application.

[65] As a consequence, Mr Newbond’s application for unfair dismissal remedy is dismissed pursuant to s.399A of the Act.

[66] An order to that effect will be issued separately to this decision.

COMMISSIONER

Appearances:

Mr G Pinchen (paid agent) for the Applicant

Ms F Anderson for the Respondent

Hearing details:

2015:

Melbourne

27 August.

 1   Applicant’s Outline of Submissions in Response to Application to Dismiss, Exhibit B

 2   Ibid, Exhibit F

 3   Ibid, Exhibit G

 4   Ibid

 5   Exhibit GM1, attachment GMH 10

 6   [2013] FWC 9209, at [36] – [42]

 7   Sayer v Melsteel [2011] FWAFB 7498

 8   Ibid, at [17]

 9   Ibid, at [18]

 10   [2013] FWC 9315

 11   Ibid, at [34]

 12   AIRCFB, unreported, (2005) PR956665

 13   Ibid, see [31] and [32]

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