Nick Petz v Jamieson Sales and Service Pty Ltd

[2020] FWC 4293

[2020] FWC 4293

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Nick Petz
v
Jamieson Sales and Service Pty Ltd
(U2020/6638)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 14 AUGUST 2020

Application for an unfair dismissal remedy – section 399A FW Act – non-complaint but not non-responsive - implausible explanations - discretionary considerations - discretion not exercised

[1] This decision concerns an application by Jamieson Sales and Service Pty Ltd (Jamieson) under section 399A of the Fair Work Act 2009 (FW Act) to strike-out an unfair dismissal application made by a former employee Nick Petz (Mr Petz) on the ground of alleged failure to comply with pre-hearing directions.

[2] Jamieson’s application was made on 5 August 2020 (by email).

[3] I conducted a hearing of the 399A application by phone on 13 August 2020. Representatives of the employer and Mr Petz attended.

[4] At the hearing I granted the employer permission to proceed with its application in the email form received in lieu of the form F1 that would otherwise be required to have been completed under the Fair Work Commission Rules 2013. On 7 August 2020 the email application had been served on Mr Petz together with directions and a Notice of Listing.

Facts

[5] On 14 May 2020 Mr Petz filed an unfair dismissal claim concerning a dismissal on 22 April 2020.

[6] On 2 June 2020 Jamieson filed a response. It took no jurisdictional objection but opposed the claim on merit.

[7] Conciliation scheduled for 18 June 2020 was cancelled but proceeded on 29 June 2020 with Mr Petz and employer representatives in attendance. The matter did not resolve.

[8] Both parties are self-represented.

[9] By Notice sent on 30 June, I listed the matter for a directions hearing on 8 July.

[10] There was no appearance by Mr Petz at the directions hearing. The employer appeared. The directions hearing did not proceed.

[11] Following calls left on his telephone, Mr Petz contacted my chambers on 8 July. He indicated that he had not received the Notice of Listing for the directions hearing. My chambers confirmed that it had been sent to the email address provided by Mr Petz and to which information about the earlier conciliation had been sent.

[12] By notice of 8 July, I relisted the directions hearing for 10 July 2020. I also directed that Mr Petz provide a written explanation in advance of the relisted directions hearing as to why he had not attended on 8 July.

[13] Mr Petz did not provide a written explanation prior to the directions hearing, as directed.

[14] The rescheduled directions hearing proceeded on 10 July 2020 (Mr Petz did not dial in to the hearing as requested in the Notice of Listing; at the appointed time my chambers called Mr Petz). Mr Petz attended, as did representatives of the employer. At my request, Mr Petz provided an oral explanation for his earlier non-attendance. He suggested that the Notice of Listing had gone to his spam in-box.

[15] On 10 July 2020 I listed the matter for a merits hearing on 20 August 2020. I issued directions. I directed that Mr Petz file written materials in advance of the merits hearing by close of business 4 August 2020.

[16] No materials from Mr Petz were received by the Commission by that date.

[17] On 5 August 2020 Jamieson made this section 399A application.

[18] On 5 August I directed that Mr Petz file by close of business 6 August:

•  a written explanation for the non lodgement of his materials by 4 August;

•  a written indication whether he intends to lodge his materials and whether he intends to prosecute his claim; and

•  a written response to the employer’s 399A application.

[19] My directions of 5 August provided:

“The parties are reminded that a failure to comply with directions is likely to disadvantage the party concerned. The Commission has powers to dismiss applications, on its own initiative under section 587, and upon the application of an employer under section 399A of the Fair Work Act 2009. Nick Petz should be aware that a failure to comply with directions, and/or non-attendance at hearings, are factors capable of enlivening the Commission’s powers to dismiss. “

[20] On 6 August Mr Petz telephoned my chambers. He claimed that he had lodged materials in accordance with the 10 July directions. He suggested that his email account indicates they were sent. Mr Petz was advised that nothing had been received by the Commission.

[21] On 7 August, by telephone, the employer advised the Commission that it intended to proceed with its 399A application.

[22] On 7 August my chambers left a message on Mr Petz’s phone indicating that nothing had been received from him in response to the 5 August 2020 directions and that the employer’s 399A application would be listed for hearing.

[23] By email 1135am 7 August 2020 I extended the time for Mr Petz to provide his explanations and materials on the 399A application from 6 August to 10 August.

[24] By notice sent at 1137am 7 August 2020 the 399A application was listed for hearing.

[25] On 7 August (Friday) at 1243pm Mr Petz phoned my chambers. He said that he had tried to send material on 6 August 2020. My chambers indicated that nothing had been received. Mr Petz indicated that he would deliver written material to the Commission’s registry counter in person on 10 August.

[26] On 10 August 2020 Mr Petz lodged written documents in person being:

•  A handwritten letter from Mr Petz as follows:

“To Mr Anderson

I am very sorry that none of my emails had made it through to you. I hope you can see it in yourself to keep my case open. I have printed out copies of my statement and some of the dates I sent the emails to you. I really need you to have a look at my case as I am trying to keep my family together.

Thank you

Nick Petz”

•  A document purporting to be an email from Mr Petz to the Commission sent at 1030pm 2 August 2020 attaching the Commission’s email of 8 July 2020 in which Mr Petz says:

“Can you send me a message to see if my statement was received please.”

•  A document purporting to be an email from Mr Petz to the Commission sent at 1103pm 3 August 2020 being a lengthy statement relevant to the merits of his unfair dismissal application;

•  A document purporting to be an email from Mr Petz to “Mr Anderson” sent at 1102pm 3 August 2020; and

•  A document purporting to be an email from Mr Petz to the Commission sent at 1154am 4 August 2020 attaching the 3 August email to “Mr Anderson” and an email sent at 622am 4 August 2020.

[27] On 11 August 2020 Jamieson made a submission in reply to the effect that:

•  the emails provided by Mr Petz contain irregularities and may not be legitimate;

•  Mr Petz has not adequately explained his non-compliance;

•  Jamieson has at each stage been responsive and in attendance and expended time and effort in doing so; and

•  Jamieson will reply on merits by 14 August if required, pending the outcome of its 399A application.

[28] On 11 August Mr Petz telephoned my chambers to ascertain the status of the matter. He was advised that the 399A application remained listed for hearing on 13 August.

Consideration

[29] Section 399A of the FW 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.”

Failure to attend proceedings

[30] Mr Petz failed to attend one proceeding: the directions hearing of 8 July.

[31] His explanation for not having done so was that the Commission’s Notice of Listing went to his spam in-box.

[32] Mr Petz has control over his email in-boxes, including his spam filter and contents of the spam in-box. His explanation is not convincing.

[33] However, Mr Petz attended the rescheduled directions hearing two days later, 10 July (wherein he gave this explanation).

[34] In those circumstances, coupled with the fact that Mr Petz attended the section 399A hearing (13 August) and the earlier conciliation (29 June), I do not consider his failure to attend on 8 July as a sufficient neglect of his obligations so as to warrant dismissal of his application for that reason alone.

[35] However, it was nonetheless a failure which put the employer to the inconvenience of attending a hearing that did not proceed and attending a rescheduled hearing. It is relevant to the overall exercise of my discretion.

Failure to comply with directions

[36] Jamieson submit that Mr Petz has failed to comply with Commission directions.

[37] This ground is made out.

[38] The facts clearly establish that Mr Petz failed to comply with the following Commission directions:

•  To provide a written explanation prior to the directions hearing of 10 July as to why he did not attend the directions hearing of 8 July; and

•  To file materials in support of his unfair dismissal application by close of business 4 August.

[39] The failure to provide a written explanation prior to the directions hearing of 10 July is at the lower end of the scale. The explanation was provided orally upon my request at the 10 July directions hearing. The employer was not prejudiced by this failure. It is not a sufficient neglect of obligations so as to warrant dismissal of Mr Petz’s application for that reason alone. However, coupled with other failures it is relevant to the overall exercise of my discretion but to a limited degree only.

[40] The failure by Mr Petz to file materials in support of his unfair dismissal application by close of business 4 August 2020 is in a different category. A requirement on an applicant in an unfair dismissal proceeding to prepare materials in advance of a hearing and serve those materials on an employer is neither incidental or trifling. The obligation provides the employer with a basis on which to meaningfully comply with directions to prepare responding materials. It also assists the efficient conduct of hearings by ensuring parties are prepared and aware of the case they are prosecuting or defending.

[41] In this matter prejudice to the employer from this failure should not be overstated. Even though the listed hearing date is only a week away (20 August) I have extended the time for filing the employer’s materials (to 14 August) and the employer is in a position to comply should it be required to do so.

[42] Nonetheless, failure by Mr Petz to file materials in support of his unfair dismissal application was a failure of substance which enlivens the discretion under section 399A.

Explanations for non-compliance

[43] Section 399A is predicated on the proposition that an applicant’s failure(s) need to have been “unreasonable” for a section 394 application to be dismissed.

[44] The explanation given by Mr Petz for not filing his materials is that he did so electronically via emails on 2 August, 3 August (twice) and 4 August 2020 (twice) but they were not received by the Commission or the employer.

[45] Mr Petz supplied copies of these emails in the materials he lodged in person on 10 August.

[46] I questioned Mr Petz about these emails and their authenticity at the hearing on 13 August.

[47] I am not satisfied with Mr Petz’s explanation that any of these emails were sent on those days or were tried to be sent from his email address on any of those days.

[48] Some of the emails are incomplete. They have details of the recipient (“To”) deleted. Mr Petz could not provide an explanation for those deletions.

[49] Some of the emails use a sending email address “Nick Petz” [email protected]. This was an unrecognisable email address even to Mr Petz. He had no explanation why that email address rather than his [email protected] email address (as supplied to the Commission) was used.

[50] On some of the emails the domain of the web host has been changed to Mr Petz had no explanation as to how that misdescription occurred.

[51] Some of the emails that Mr Petz said he sent were correctly addressed to [email protected]. However, upon checking by my chambers, none of those correctly addressed emails were received by the Commission.

[52] Mr Petz indicated that some of his emails were sent to email addresses such as [email protected] and [email protected]. No such email addresses exist. Mr Petz did not indicate how he came to use unknown email addresses, or whether he received bounce-backs or responded to bounce-backs.

[53] Mr Petz also said that he received some emails from the Commission but not others. There was no explanation as to why that would be the case.

[54] Also unexplained is that Mr Petz said that he has not received electronic Notices of Listing notwithstanding the subject line on the email he says he sent on 2 August 2020 is the same subject line used by my chambers in this matter (“Re: Notice of Listing – U2020/6638 – Petz v Jamieson”).

[55] The absence of adequate explanations to any of these irregularities leads me to be unable to conclude that Mr Petz sent or tried to send emails to the Commission on 2, 3 or 4 August 2020 in compliance with my directions, as he claimed.

[56] The explanations for non-compliance are not plausible. The emails appear not just incomplete but inauthentic. They appear designed to mislead; to convey the impression of having tried to comply with directions within the required time frames but having been foiled by technology.

[57] As the explanations advanced by Mr Petz are not plausible they are, in an objective sense, not reasonable.

Conclusion

[58] I have concluded that Mr Petz acted unreasonably in not complying with Commission directions to file materials by 4 August 2020. Section 399A(1)(b) is made out.

[59] I have also concluded that Mr Petz acted unreasonably in once not attending a directions hearing though this was, in context, a less serious failure.

[60] It does not automatically follow that because unreasonable conduct within the meaning of section 399A has been found that an application must be dismissed; the section provides that the Commission “may” do so.

[61] Dismissing an application that is otherwise within jurisdiction on procedural grounds is a serious discretionary step; the discretion should be exercised in a cautious manner. 1

[62] However, the parliament has underscored the importance of actively and attentively prosecuting one’s application by empowering the Commission to dismiss applications of its own motion (section 587 of the FW Act) and to further empower the Commission to do so for specific non-compliance reasons in the unfair dismissal jurisdiction on application by a respondent employer (section 399A).

[63] What is required is the exercise of discretion consistent with the statutory object pertaining to unfair dismissal applications of a “fair go all round”. 2

[64] It is a well-established principle that an applicant has an obligation to comply with directions of the Commission and to actively and attentively prosecute their claim. There are minimum disciplines associated with invoking a statutory jurisdiction and litigating a claim against a private individual or business in a quasi-judicial tribunal such as the Commission. Invoking the Commission’s jurisdiction is neither cost nor consequence free; doing so utilises the services of publicly funded members and staff who collectively have statutory obligations to conduct the institution’s business fairly, efficiently and in a timely manner having regard to the interests of all applicants and respondents. One such discipline is to comply with directions in advance of hearings and to do so in good faith.

[65] In Peter Viavattene v Health Care Australia the Full Bench stated at [39]: 3

“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. 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).”

[66] I concur with the observations of Deputy President Colman in Diane Porteous v G. Kakafikas and A.G. Bek Partnership T/A Yarra Glen Pharmacy: 4

“[19] It is completely unacceptable that a person can institute a legal proceeding, fail to prosecute it, and waste the other party’s time and that of the Commission, all with impunity and at no cost to themselves other than a filing fee of $73.20. Although there is the possibility under the Act to bring an application for costs, there is a high bar for success and such applications are, understandably, rarely brought. Further, in many cases, particularly those involving small businesses, there are no costs such as legal fees that might be recouped through cost orders. What has been expended is valuable time that could have been put to productive use. In my view there should be more robust consequences under the Act for litigants who fail to make reasonable efforts to prosecute applications.”

[67] I now consider whether it is appropriate to exercise discretion under section 399A.

[68] The lack of plausibility in the explanations for non-compliance and the production of emails to the Commission that lack authenticity weigh in favour of dismissing the matter under section 399A. The inauthentic or unsent emails had the capacity to mislead both the Commission and Mr Petz’s former employer.

[69] Weighing against dismissing the matter is that the content of one of the emails (3 August) does, belatedly, contain what could be loosely described as a witness statement or submission on merit.

[70] Also weighing somewhat in favour of not dismissing the matter is that prejudice to the employer from non-compliance is not significant despite the merits hearing being only a week away. There is still time for Jamieson to respond.

[71] Mr Petz has been non-complaint but not entirely non-responsive. He is self-represented. Certain protocols, such as the obligation to dial into hearings by the appointed time and not await calls, are unfamiliar. He has attended three hearings, failed to attend one and been responsive to some of the Commission’s contact but not all. A witness statement/submission that he was required to file by 4 August 2020 was filed, but six days late (10 August). In lodging that late statement/submission he submitted emails that sought to convey an impression that it was technology, not he, that caused the delay. Those emails appear doctored and, absent a plausible explanation, do no credit to his belated attempt to comply.

[72] Considering these factors overall within the framework of a discretion that should be exercised with caution and based on the principle of a fair go all round I do not, on balance, consider it appropriate to exercise the discretion to summarily dismiss Mr Petz’s claim.

[73] The matter will proceed to a merits hearing at 10.00am (ACST) on 20 August 2020. Not having sought a further extension, the employer is required to file its materials by close of business today (14 August 2020). Mr Petz is required to file his reply by close of business 18 August 2020 (next Tuesday). I direct that Mr Petz’s reply include details of his post-dismissal circumstances and earnings (if any). That information, required to have been provided by 4 August, has not been included in his 10 August materials. If Mr Petz has no such information to provide on that subject, he should indicate as much by the close of business 18 August.

[74] For Mr Petz, this is last chance saloon. His case is hanging by a thread. I will adjourn but not dismiss the employer’s section 399A application. It remains live before me. Should the employer seek to re-activate the application in the event of further material non-compliance or non-responsiveness, the opportunity to do so remains.

DEPUTY PRESIDENT

Appearances:

N Petz, in his own right.
N Saddler and S Tai, for the Respondent.

Hearing details:

Adelaide (by telephone),
2020,
13 August.

Printed by authority of the Commonwealth Government Printer

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 1   Thomas v Highway NN Pty Ltd[2020] FWC 3911

 2 Section 381(2) FW Act

 3   [2013] FWCFB 2532; see also Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [19] and Patel v The Tea Centre Pty Ltd[2018] FWC 7814

 4   [2019] FWC 6264