Nicholas Irvine v OzCrete Pools Pty Ltd
[2022] FWC 1780
•8 JULY 2022
| [2022] FWC 1780 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nicholas Irvine
v
OzCrete Pools Pty Ltd
(U2022/1807)
| COMMISSIONER HUNT | BRISBANE, 8 JULY 2022 |
Application for an unfair dismissal remedy – s.399A application to dismiss – failure of applicant to comply with Commission directions – discretion exercised – unfair dismissal application dismissed
On 10 February 2022, Mr Nicholas Irvine made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act), alleging he was dismissed from his employment with OzCrete Pools Pty Ltd (the Respondent) and that the dismissal was harsh, unjust or unreasonable.
On 24 February 2022, the Respondent filed a Form F3 Employer Response to the application, citing a jurisdictional objection to the application, that being compliance with the Small Business Fair Dismissal Code.
Following allocation to my chambers, I issued directions for the filing of materials in preparation for hearing.
The matter was listed for telephone conference before me on 18 May 2022. Mr Irvine participated in the telephone conference together with his representative.
In compliance with the directions issued, the Respondent filed its material to support its jurisdictional argument on 31 May 2022. On 10 June 2022, the representative for Mr Irvine filed a Form F54 notifying the representative was ceasing to act for Mr Irvine.
Failure to file materials and attend non-compliance hearing
Mr Irvine was due to file material in this matter on 21 June 2022. He failed to do so. Correspondence was sent from my chambers on 23 June 2022 seeking an explanation from Mr Irvine. No correspondence was received from Mr Irvine. No “bounce backs” from his email account has been received.
On 29 June 2022, I granted an extension for Mr Irvine to file his material by 30 June 2022 and advised that failure to do so may result in the Commission dismissing his application pursuant to s.587 of the Act, or the Respondent making an application to dismiss pursuant to s.399A of the Act.
Numerous telephone calls were made by my associate on 1 July 2022 to Mr Irvine, without success.
On 1 July 2022, the parties were notified of a non-compliance hearing listed for 6 July 2022.
On 6 July 2022, the Respondent made an application pursuant to s.399A of the Act that the application be dismissed having regard to the following:
(a) Mr Irvine failed to comply with the Directions issued on 10 May 2022; and
(b) Mr Irvine failed to comply with further Directions issued to the parties on 23 June 2022 and 26 June 2022.
On 6 July 2022, Mr Irvine failed to attend the non-compliance hearing despite numerous attempts by my associate to contact him. The Respondent was represented by Ms Victoria Mitchell of HR Law. Ms Mitchell urged the Commission to dismiss the application pursuant to s.399A of the Act.
Relevant legislation
Section 399A of the Act is a specific provision in relation to unfair dismissal applications which also provides for the dismissal of applications in circumstances where an applicant has not acted to prosecute their case. Section 399A of the Act provides as follows:
“399A Dismissing applications
(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:
(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(b) failed to comply with a direction or order of the FWC relating to the application; or
(c) failed to discontinue the application after a settlement agreement has been concluded.
Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).
(2) The FWC may exercise its power under subsection (1) on application by the employer.
(3) This section does not limit when the FWC may dismiss an application.”
Consideration
I note that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so.[1] Such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form of relief from a beneficial statutory provision.[2]
The Commission’s obligations regarding the manner in which it must perform its functions and exercise its powers are set out in ss.577 and 578 of the Act. Relevantly, the Commission must act in a manner that:
· is fair and just;
· is quick, informal and avoids unnecessary technicalities;
· is open and transparent; and
· takes into account equity, good conscience and the substantial merits of the case.
In considering the approach to be followed by the Commission where an applicant has failed to prosecute their case, the Full Bench in Viavattene v Health Care Australia[3] commented:
“[39] … There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative…”
In the Full Bench decision of Mihajlovic v Lifeline Macarthur (2014) 241 IR 142, the Full Bench said the following regarding the use of the word ‘may’:
“Section 33(2A) of the Acts Interpretation Act 1901 (Cth) provides:
‘(2A) Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word may is used, the act or thing may be done at the discretion of the person, court or body.’
Section 40A of the [FW] Act provides that the Acts Interpretation Act as in force on 25 June 2009 applies to the [FW] Act, but that amendments after that date do not. Section 33(2A) came into effect on 18 December 1987, and therefore applies to the [FW] Act. Under s 2 of the Acts Interpretation Act, that Act applies inter alia to all Commonwealth Acts unless an Act is subject to a contrary intention”
This approach was adopted by the Full Bench in the context of s.399A of the Act in Granas v Berkley Challenge Pty Ltd[2015] FWCFB 1795. It follows that the power to dismiss an application pursuant to s.399A is discretionary.
Recently, Deputy President Sams set out the approach to considering s.399A applications in Thomas v Highway NN Pty Ltd [2020] FWC 3911, where the Deputy President said at [14]:
“Accordingly, s 399A of the Act requires a two-step process; firstly, a finding that one
or more of the grounds set out are satisfied and secondly, if so, the consideration as to whether it is appropriate to exercise a discretion to grant the s 399A application and dismiss the unfair dismissal application”
In Allen v Army and Air Force Canteen Service [2013] FWC 9209, Senior Deputy President Richards said the following regarding the exercise of discretion under s.399A of the Act:
“[36] The discretion vested in the Commission by way of s.399A of the Act is fettered only in so far as it must be exercised on the basis of a judgement as to whether an Applicant had, in the circumstances before the Commission, ‘unreasonably [...] failed to comply with [a Commission] direction [...] relating to the application.’
[37] Section 399A(1) of the Act focuses the Commission on the circumstances of the Applicant's conduct for the purposes of the exercise of discretion. The Explanatory Memorandum is consistent with the statutory focus in that it indicates that:
the amendment is intended to address the small proportion of applicants who may pursue claims in an improper or unreasonable manner.
[38] The Explanatory Memorandum further states that:
the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant.
[39] The discretion is not one that should be read as being subject to the scope of considerations as might arise in Brodie Hanns (Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR see pages 299-300) or as are otherwise applicable by statutory direction under s.366 of the Act or s.394(3) of the Act.
[40] Further, it is not to be read into the jurisdiction, for example, that the Commission must establish that the Respondent has been exposed to a prejudice, or in some way disadvantaged or put to cost (though understandably such circumstances may well arise consequentially).
[41] Nor does the Respondent need to possess a defence against the claims as made in the originating application (as is said by the Full Bench in Re: Sayers to be required in relation to a dismissal of an application under s.587(1) of the Act, at the Commission's initiative).
[42] The discretion, therefore, to dismiss an application under s.399A(1) of the Act is exercised subject only to an objective evaluation of the Applicant's conduct, and more particularly, whether or not that conduct was unreasonable in the circumstances."
I note that the above decisions set out the relevant principles and considerations and I respectfully adopt them.
In the present matter, Mr Irvine has been given a reasonable opportunity to participate in proceedings and prosecute his case, however he has not done so. He has not responded to the written correspondence from the Commission, and the last time he engaged with the Commission was during the initial conference on 18 May 2022. Mr Irvine has not attempted to provide any explanation as to why he cannot comply with the directions.
I am satisfied that Mr Irvine has unreasonably failed to comply with a direction of the Commission relating to his application. In these circumstances I consider it appropriate to exercise my discretion under s.399A(1)(b) to dismiss Mr Irvine’s application.
Conclusion
Mr Irvine’s application is dismissed. An Order [PR743608] giving effect to this decision will be issued separately.
COMMISSIONER
[1] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].
[2] Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].
[3] [2013] FWCFB 2532.
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