Nicholas Jones v Oceaneering Australia Pty. Limited

[2025] FWC 656

[2025] FWC 656

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nicholas Jones
v

Oceaneering Australia Pty. Limited

(U2024/14948)

DEPUTY PRESIDENT CLANCY MELBOURNE, 5 MARCH 2025

Application for an unfair dismissal remedy - s.399A application not granted.

1. On 11 December 2024, Mr Nicholas Jones has made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). In his Form F2 – Unfair Dismissal Application (Form F2), Mr Jones outlined that his employment had been terminated by Oceaneering Australia Pty Limited (the Respondent) on 25 November 2024 and that the termination took effect on the same day. On 27 December 2024, the Respondent filed their Form F3 – Employer response to unfair dismissal application (Form F3).

1. The matter has been allocated to me for its ongoing management through to arbitration. I issued directions on 31 January 2025 which outlined that Mr Jones was to file and serve his material for an arbitration by no later than 3.00pm on Monday 24 February 2025 and the Respondent was to file and serve its material in response by no later than 3.00pm on Monday 17 March 2025. I also conducted a Mention on 3 February 2025, at which Mr Jones and his representative from the AMWU were in attendance. In my discussion with the parties at the Mention, I highlighted the importance of compliance with the directions and the possible consequences that could flow if there was non-compliance. Amended directions dated 3 February 2025 were issued following the Mention and they provided for a third day for the arbitration (the Amended Directions). They otherwise left the dates for the filing and service of material unchanged.

1. No material was received from Mr Jones by 3.00pm on 24 February 2025 however this deadline had been preceded by an email from Mr Jones’ representative sent at 12.44pm that day. The email from Mr Jones’ representative stated:

“…We apologise for the delay in filing and serving the Applicant's material timeously today.

The Applicant is still waiting for material from the Applicant's doctor, Dr Kemp, and unfortunately, we are not in a position to file and serve all of the material within time today.

Dr Kemp's office has indicated that it will be able to get back to me in a few days. The Applicant considers that Dr Kemp's evidence is likely to be particularly relevant to the issues in dispute in this matter. And we expect to call Dr Kemp to give evidence at the hearing.

We are of the view that the Commission will be assisted by Dr Kemp's evidence.

So that the Applicant might be in a position to provide all of his evidence, and to allow the Respondent time to consider the material, we respectfully request a short variation to the directions.

We propose the following varied dates:

·     The Applicant's material to be due no later than 3pm (AEDT), Friday, 28 February 2025;

·     The Respondent's material to be due no later than 3pm (AEDT), Friday, 21 March 2025; and

·     The Applicant's material in reply to be due no later than 3pm (AEDT), Monday, 31 March 2025.

·     We do not propose moving the hearing dates.

The Respondent's representative (copied) was contacted a short time ago by email to seek its agreement to the above request. No response has been received.”

1. Having considered this correspondence, I caused an email in response to be sent to the parties at 4.36pm on Monday 24 February 2025, in which I advised that the Amended Directions had been varied in the terms requested and that the hearing dates remained unchanged.

1. Approximately 20 minutes later, my Chambers received an email from the Respondent requesting that the matter be dismissed pursuant to s.399A of the Act for the following reasons:

1. During the Mention, I had made it clear that timelines had to be met.

2. Given the Respondent’s prior advice regarding the matter, there was no reason to further extend the timeline.

1. In light of the opinion Dr Iain Nicolson had given to the Respondent, the opinion of Dr Kemp did not hold significant relevance.

1. At 8.26pm on Monday 24 February 2025, Mr Jones’ representative filed with the Commission and served on the Respondent, an outline of submissions, a witness statement and document list. In addition, advice was provided that Mr Jones was awaiting further evidence from Dr Kemp which would be filed and served when received, together with any necessary, amended submissions.

1. In an email sent to the parties from my Chambers at 5.40pm on Wednesday 25 February 2025, I advised that Mr Jones had until 3.00pm on Friday 28 February 2025 to respond to the s.399A application. In written submissions dated 28 February 2025, the representative of Mr Jones submitted that the discretion to dismiss Mr Jones’ unfair dismissal application under s.399A of the Act is not enlivened because the Commission cannot be satisfied that Mr Jones has unreasonably failed to comply with a direction or order of the Commission relating to his application. Mr Jones submitted that because the Amended Directions were varied at 4.36pm on 24 February 2024 so as to extend the deadline for compliance to 28 February 2025, the conditions precedent for the exercise of the discretionary power under s.399A do not exist. Mr Jones submitted the variation of the Amended Directions nullified any actual non-compliance, which in all the circumstances was “nominal” and insufficient to ground the requisite satisfaction for an exercise of the s.399A power to dismiss his application.

1. In the alternative, Mr Jones submitted the “nominal” failure to comply was not unreasonable within the meaning of s.399A. Mr Jones argued that his “nominal” failure to comply with the Amended Directions was his first and only instance of non-compliance, that there could be no suggestion of an unwillingness to pursue the case, that the delay has not resulted in prejudice to the Respondent, and that there will be no delay to the hearing. Mr Jones also detailed the attempts made by his representative to procure evidence from Dr Kemp and submitted they constituted reasonable attempts to comply with the Amended Directions. He submitted the failure to comply had not been within his control. Mr Jones also submitted that the fact that the bulk of his material was filed and served approximately 7.5 hours after the initial compliance requirement points to a lack of prejudice to the Respondent, particularly because my variation of the Amended Directions at 4.36pm on 24 February 2025 had the effect of affording the Respondent more time to file and serve response material.

Consideration – s.399A

1. 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.

....

(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.

1. As such, on application by an employer under s.399A of the Act, the Commission has the discretionary power to dismiss an unfair dismissal application on the basis that there has been unreasonable non-compliance with directions of the Commission. The relevant Explanatory Memorandum said of the then proposed s.399A that the underlying intention 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.”[1]

1. Mr Jones failed to comply with the Amended Directions, which had confirmed the requirement that he file and serve material by 3.00pm on 24 February 2025. The Commission had imposed this requirement so that Mr Jones’ unfair dismissal application could be heard and determined in a timely manner, having regard to its obligations in s.577 of the Act. 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).[2] In summary, the Full Bench 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; and

6. continuing non-compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.

1. While not an exhaustive list of matters that may be considered, I will consider these principles when deciding the s.399A application that has been made by the Respondent.

1. As a general rule, parties must comply with directions of the Commission to ensure an application is progressed and finality can be achieved. If an extension of time is required for the filing of material, or an adjournment is necessary, it is preferable and more compelling if application is made to the Commission prior to the applicable date and time.

1. In this instance, I am not satisfied that Mr Jones unreasonably failed to comply with the Amended Directions. While Mr Jones missed the 3.00pm deadline on 24 February 2025, he had sought an extension of time to do so shortly beforehand. Even after I had granted a 4-day extension, only 4 hours passed before Mr Jones substantially complied with the requirements.  I have also taken note of the repeated attempts by the representative of Mr Jones to procure evidence from Dr Kemp and observe that the arbitration dates have remained unchanged. I am not satisfied Mr Jones has evinced an unwillingness to pursue his case.

1. Further, I am not persuaded that Mr Jones’ delay in filing has resulted in prejudice to the Respondent, or that the circumstances of this matter are such that Mr Jones should at this time be denied his entitlement to be heard. Having regard to all the circumstances underlying this s.399A application, I am not persuaded that I should exercise the discretionary power to dismiss the unfair dismissal application that has been made by Mr Jones.

1. The s.399A application made by the Respondent is dismissed and the parties are reminded of their obligations in relation to the following:

·     The Respondent's material is due no later than 3pm (AEDT), Friday, 21 March 2025.

·     Mr Jones’ material in reply is due no later than 3pm (AEDT), Friday,  28 March 2025.

·     The hearing remains listed for 10:00AM AEST (Victorian time) on each of 7, 8 and 9 April 2025.

DEPUTY PRESIDENT

[1] Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161-163].

[2] Print PR956665, 21 March 2005, Giudice J, Hamilton DP and Larkin C.

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