Patrick Reynolds v Bunnings

[2019] FWC 4665

[2019] FWC 4665

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Unfair dismissal

Patrick Reynolds
v
Bunnings
(U2019/2581)

DEPUTY PRESIDENT KOVACIC CANBERRA, 4 JULY 2019

Application for an unfair dismissal remedy – application under s.399A to dismiss the application as a result of the Applicant’s unreasonable failure to comply with Directions –s.399A application dismissed.

[1] This decision concerns an application by Bunnings Group Limited T/A Bunnings (Bunnings – the Applicant) made under s.399A of the Fair Work Act 2009 (the Act) to dismiss the unfair dismissal application made on 8 March 2019 by Mr Patrick Reynolds (the Respondent) under s.394 of the Act alleging that he had been unfairly dismissed by Bunnings on 19 February 2019.

[2] For the reasons outlined below, I am not satisfied that one or more of the grounds set out in s.399A of the Act are satisfied in this case. Accordingly, Bunnings application is dismissed.

Background

[3] Mr Reynolds’ unfair dismissal application was the subject of a conciliation conference convened by one of the Fair Work Commission’s (the Commission) conciliators on 11 April 2019. That conference failed to resolve the matter. Mr Reynolds’ application was subsequently listed for a telephone mention and/or directions hearing on 8 May 2019. Directions were subsequently issued on 10 May 2019 requiring Mr Reynolds to inter alia “file with the Commission and serve on the Respondent (i.e. Bunnings) an outline of submissions and any evidentiary material on which it intends to rely by close of business on Wednesday, 5 June 2019.” Mr Reynolds’ application was also listed for hearing on 11 and 12 July 2019. I note that the timing of the hearing and the abovementioned directions were the subject of consultation/discussions during the mention and/or directions hearing.

[4] An issue which was unresolved at the conclusion of the abovementioned mentions and/or directions hearing was whether Mr Reynolds’ representative, Mr Eric Polleycutt, appeared as a paid agent and therefore needed permission to appear in accordance with s.596(1) of the Act. The primary ground relied upon by Mr Polleycutt in that regard was that permission should be granted as Mr Reynolds was unable to represent himself due to his medical condition and incapacity. Against that background, Mr Polleycutt both offered and undertook to provide the Commission with evidence to support his claims regarding Mr Reynolds’ medical condition. Subsequent developments regarding the issue of permission to represent are set out below.

•  On 10 May 2019 my chambers emailed Mr Polleycutt and Mr Reynolds, with the email stating inter alia:

“The Deputy President seeks clarification as to whether you are being paid to represent Mr Reynolds and notes that chambers has not yet been provided with the medical certificates of the Applicant as requested during the mentions and directions on 8 May 2019. Please provide this information to chambers ([email protected]) by COB 10 May 2019, if not before.” (Emphasis as per original)

•  On 13 May 2019 my chambers again emailed Mr Polleycutt and Mr Reynolds seeking a response to the above request by close of business that day.

•  Mr Polleycutt forwarded a number of medical certificates to the Commission later that day but did not indicate whether or not he was being paid by Mr Reynolds to appear on his behalf in these proceedings.

•  On 16 May 2019 my chambers sent a further email to Mr Polleycutt and Mr Reynolds which read:

“I refer to my previous correspondence below (as requested on 10 May and 13 May) – you have still not informed the Deputy President whether you are being paid to represent Mr Reynolds. Please provide a response as soon as possible.

If you are unable to - Mr Reynolds could you please inform the Commission as to whether Mr Polleycutt is being paid to represent you in this matter.” (Emphasis as per original)

•  On 20 May 2019 my chambers sent yet another email to Mr Polleycutt and Mr Reynolds which read:

“The Deputy President has requested that you advise as a matter of urgency as to whether or not you appear as a paid agent or lawyer before the Fair Work Commission for the Applicant. The issue of permission to represent cannot be determined without this advice.”

•  Later that day Mr Polleycutt responded in the following ambiguous terms:

“I am employed by a company that is engaged to represent Patrick Reynolds in the preliminary settlement negotiations and information gathering phase for presentation before the FWC. Mr Reynolds is indebted to this company for the services.

As Mr Reynolds Dr has detailed in the support documents provided. It is for his benefit and on medical advice is provided such assistance. Should the matter not be settled before hearing On advice from his Treating Dr is scheduled for further determination, My attendance and assistance in the representation will be provided.”

•  On 22 May 2019 Bunnings filed written submissions opposing Mr Polleycutt being granted permission to represent Mr Reynolds, with Mr Polleycutt providing a written response on 25 May 2019.

•  At the telephone hearing on 24 June 2019 regarding Bunnings s.399A application Mr Polleycutt explicitly stated that he was appearing in these proceedings as Mr Reynolds’ support person, confirming that he was not being paid and that Mr Reynolds had no money to pay anybody to represent him in these proceedings. To that end, I note that as Mr Polleycutt is not appearing as a paid agent in these proceedings, permission is not required under s.596 of the Act for Mr Polleycutt to appear on behalf of Mr Reynolds. However, Mr Polleycutt’s statement at the hearing begs the question as to why he did not indicate this previously, either at the mention and/or directions hearing on 8 May 2019 or in response to the Commission’s various abovementioned emails.

[5] On 3 June 2019 Mr Polleycutt sent an email to the Commission which included the following:

“on 25 May 19 at 1.19pm I had provided the FWC submissions for orders to be made for the presentation of material to and for attendance at FWC hearing. I requetsed if those documents I filed were being sealed and served by the FWC, or what if anythoing further the Applicant needed to do or attend to ready the matter in a reasonable time to have heard as set down.” (Text as per original)

[6] Later that day the Commission listed the above request for orders to attend and orders to produce documents for conference on 7 June 2019. At that conference the Commission agreed to issue an order for Mr Paul Bibb to attend 1 and Bunnings undertook to voluntarily provide several of the documents sought by the Applicant (those documents were, as agreed at the conference, provided by Bunnings on 12 June 2019). The Applicant’s request for orders for other persons to attend and for other documents to be provided were otherwise refused by the Commission on the basis that some of the persons in respect of who orders were sought would be called to give evidence by Bunnings or on the grounds of relevance.

[7] During the conference Mr Polleycutt referred to aspects of Bunnings’ Form F3 – Employer Response to Unfair Dismissal Application which incorrectly referred to Mr Reynolds as ‘she’ and ‘her’. In response Bunnings described these references as typographical errors and requested that the Commission exercise its discretion under s.586(a) of the Act to correct the errors. The Commission agreed to do so. For reasons of clarity, I note that the errors appear at paragraph 10 of Bunnings’ response to Question 3.2 of its Form F3.

[8] Also at the conference Bunnings highlighted that Mr Reynolds had failed to file his outline of submissions and evidentiary material on 5 June 2019 as required by the Directions issued by the Commission on 10 May 2019. Bunnings also foreshadowed its intention to make an application under s.399A of the Act. While noting Bunnings’ intention, the Commission gave Mr Reynolds until close of business on 11 June 2019 to file his outline of submissions and any evidentiary material he sought to rely on in support of his unfair dismissal application.
[9] On 11 June 2019 Mr Polleycutt filed what it described in the covering email as “the 1st Submission by the Applicant.” However, the material filed could not be construed as an outline of submissions. For instance, the material did not address the various criteria set out in s.387 of the Act which the Commission is required to take into account in considering whether a dismissal was harsh, unjust or unreasonable, nor were any witness statements included in the material.

[10] Against that background, on 12 June 2019 Bunnings filed its previously foreshadowed application under s.399A of the Act seeking that Mr Reynolds’ unfair dismissal application be dismissed on the basis that Mr Reynolds had “repeatedly failed to comply with directions” made by the Commission.

[11] On 14 June 2019 my chambers sent the following email to Mr Reynolds, with the email copied to both Mr Polleycutt and Bunnings:

“Dear Mr Reynolds

The Deputy President has reviewed the correspondence received by Chambers to date and provides the following response:

“I refer to APSF’s email of 11 June 2019 headed ‘1st Submissions procedural guidance”.

As you will recall at the conference held on 7 June 2019 the Respondent foreshadowed an application under s.399A of the Fair Work Act 2009 (the Act) that your unfair dismissal application be dismissed on the basis that you had not complied with the Directions issued by the Fair Work Commission (the Commission) on 10 May 2019. Those Directions required you to file with the Commission and serve on the Respondent by close of business 5 June 2019 an outline of submissions and any evidentiary material on which you intend to rely in support of your unfair dismissal application. At the abovementioned conference I gave you until close of business on 11 June 2019 to file your outline of submissions and evidentiary material.

APSF’s email of 11 June 2019 does not appear to provide your outline of submissions and evidentiary material. In other developments, on 12 June 2019 the respondent filed its application under s.399A of the Act.

Against that background, I propose to list the Respondent’s application that your unfair dismissal application be dismissed for telephone hearing at 2:00pm on Monday, 24 June 2016. A Notice of Listing and Directions for the filing of submission in respect of the Respondent’s application will be issued shortly.”

[12] Directions were subsequently issued in respect of Bunnings’ application, with the application the subject of a telephone hearing on 24 June 2019. Mr Thomas Page, a Senior Workplace Relations Consultant with the Victorian Chamber of Commerce and Industry appeared for Bunnings, while Mr Polleycutt appeared for Mr Reynolds.

The Statutory framework

[13] 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.”

The Applicant’s case

[14] In summary, Bunnings submitted that:

•  Mr Reynolds had failed to comply with directions of the Commission on multiple occasions without any reasonable or acceptable explanation(s);

•  Mr Reynolds had 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;

•  Mr Reynolds’ non-compliance had caused unnecessary delay, expense and/or prejudice to it;

•  Mr Reynolds’ acts of non-compliance were unreasonable in the circumstances; and

•  against that background, the Commission should exercise its discretion under s.399A of the Act and dismiss Mr Reynolds’ unfair dismissal application due to his unreasonable failure to comply with directions of the Commission.

[15] More specifically, Bunnings in its submissions chronicled what it described as Mr Reynolds’ failure to comply with Directions, failure to provide medical evidence and to respond to Commission enquiries in terms consistent with the ‘Background’ set out at paragraphs [4] to [9] above. In respect of the latter contention (i.e. the failure to respond to Commission enquiries), Bunnings posited that Mr Polleycutt’s response of 20 May 2019 was intended to obfuscate the issue and frustrate the Commission’s attempts to inform itself in relation to Mr Reynolds’ request to be represented.

[16] As to the relevant law, Bunnings submitted that the power to dismiss an application in circumstances where the form of non-compliance was unreasonable was discretionary and only intended to be available where there was an unreasonable act or omission by an applicant, adding that s.399A of the Act did not act to limit when the Commission could dismiss an application. Beyond that, Bunnings drew on the decisions in A. Ghalloub v Aon Risk Services Australia Limited 2 and Tobias Tait v Serco Citizen Services Pty Ltd3in support of its application.

[17] Key aspects of the Bunnings’ oral submissions included that:

•  as of the date of hearing Mr Reynolds had provided no submissions which addressed the grounds in s.387 of the Act nor any evidentiary material;

•  the argument that Mr Reynolds required access to his employee records before he could file his outline of submissions and evidentiary material was “totally unsustainable” given that many employees were able to pursue an unfair dismissal application in the absence of access to such records;

•  there was no reasonable excuse for Mr Reynolds’ non-compliance with the Commission’s Directions, later positing that Mr Reynolds had had far too many chances to remedy his non-compliance;

•  there was no evidence that Mr Reynolds was severely incapacitated, highlighting that Mr Polleycutt had assumed an active role in the matter; and

•  the Commission should exercise the discretion available to it under s.399A to dismiss Mr Reynolds’ application.

The Respondent’s case

[18] Mr Reynolds in his written submissions among other things questioned the basis on which the Victorian Chamber of Commerce and Industry appeared for Bunnings 4 and disputed most of Bunnings’ written submissions. Specifically, Mr Reynolds’ submitted that:

•  the Commission’s Directions did not include a formal direction to provide medical certificates;

•  he had complied with all directions and orders of the Commission to the best of his ability, contending that submissions and evidentiary material had been filed on his behalf on 8,10, 11, 16, 20, and 25 May and 3 and 11 June 2019;

•  the Commission had seen fit to administer the matter in disregard of his hearing and sight impairments thereby affecting his participation in the matter;

•  Bunnings “appeared to discount the consistent behaviour of non-compliance and illegal act to prevent” him “from his work place rights to manipulate, bully, and pervert the FWC attendance in seeking fair, reasonable and just outcome in this public authorities administration”; 5

•  to address the various considerations in s.387 of the Act he needed to view, inspect and obtain written copies of his workplace records; and

•  any perception of non-compliance was due solely to the fact and circumstances created, controlled and manipulated against the law and his workplace rights by Bunnings’ actions alone.

[19] Mr Reynolds’ written submissions concluded as follows:

“The Applicant disputes the Chambers submission of conclusion based on the deliberately false and misleading submissions by the Respondent detailed above.” (text as per original)

[20] Mr Reynolds’ oral submissions largely reiterated his written submissions. Beyond that, key aspects of his oral submissions included that:

•  Bunnings’ application should be dismissed, describing the application as an attempt by Bunnings to whitewash its conduct;

•  it was not in the interests of justice for Bunnings’ application to have been accepted by the Commission;

•  he had provided a statement which was attached to his unfair dismissal application, adding that there was no obligation on him to file a witness statement;

•  he conceded that he had not filed a document headed “Outline of Submissions”; and

•  dismissing his application would be a prejudicial judgement.

Consideration of the Issues

[21] I deal first with Mr Reynolds’ contention that the Commission had seen fit to administer this matter in disregard of his hearing and sight impairments such that that his participation in the matter has been affected. I completely reject that contention. Firstly, I note that prior to the telephone mention and/or directions hearing held on 8 May 2019 my chambers contacted Mr Reynolds’ representative (presumably Mr Polleycutt) to discuss the format of the hearing. The file note regarding that telephone call which appears on the Commission’s case management system states:

“Spoke with Applicant rep to ascertain whether Applicant would prefer phone or face to face M/D in light of special needs noted on F2. Rep confirmed Applicant would be ok to attend by phone.”

[22] Secondly, in circumstances where Mr Reynolds has said virtually nothing, if anything, in the proceedings to date as a result of Mr Polleycutt speaking almost, if not, exclusively on his behalf, it is not clear to me how Mr Reynolds’ participation has been affected to his detriment by the proceedings thus far having been conducted via telephone.

[23] It goes without saying that regard will continue to be had to Mr Reynolds’ circumstances in any future programming of his unfair dismissal application.

[24] Beyond this, I would observe that it is clear to me based on the proceedings to date and the material filed by Mr Reynolds that both he and Mr Polleycutt have little understanding of Commission processes and protocols. Indeed at the telephone hearing on 24 June 2019 Mr Polleycutt acknowledged that he had no experience in addressing an unfair dismissal. I would stress that the above observation is not intended, nor should it be interpreted, as a criticism of either Mr Reynolds or Mr Polleycutt, given that it is not uncommon for self-represented parties who appear before the Commission to be unfamiliar with the Commission’s processes.

[25] Turning now to consider the matters at hand in this case, I note that the operation of s.399A of the Act was considered by Commissioner Hampton in his decision in Brett Johnson v Onesteel Manufacturing Pty Ltd T/A Arium (Onesteel) 6in which he also considered several decisions which concerned the application of s.399A of the Act.7 Those decisions included the Full Bench decision in Gary Granas v Berkeley Challenge Proprietary Ltd T/A Spotless8 and the decision of Senior Deputy President Richards in Ms Lisa Allen v Army and Air Force Canteen Service.9 Of particular relevance to these proceedings is Commissioner Hampton’s description in Onesteel of the requirements of s.399A of the Act. That description is as follows:

“[29] ... s.399A of the FW 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.” 10

[26] I agree with and have applied that approach in this case.

[27] One of the grounds relied upon by Bunnings in support of its application is Mr Reynolds’s failure to provide medical evidence and to respond to Commission enquiries. I note that medical records were provided by Mr Polleycutt on 13 May 2019, i.e. within a week of the mention and/or directions hearing on 8 May 2019 (albeit that they were provided after two follow up emails sent by my chambers). As to Mr Reynolds’ failure to respond to Commission enquiries, while Mr Reynolds’ and Mr Polleycutt’s inability to directly and clearly respond to the Commission’s legitimate and clear questions regarding whether or not he was being paid to appear for Mr Reynolds is difficult to understand, I note that those questions were not put to them as part of either a direction or order of the Commission. As such, while Mr Reynolds’ and Mr Polleycutt’s actions were particularly frustrating, I am not satisfied that they either come within or satisfy the grounds in s.399A(1)(b) of the Act.

[28] As to Mr Reynolds failure to file an outline of submissions and any evidentiary material on 11 June 2019 as directed by the Commission, a relevant consideration is Mr Reynolds contention that to be able to do so he needed to have been able to examine his workplace records so that he could properly address the considerations in s.387 of the Act. The fact that Mr Reynolds only received a copy of his employee file (excluding payroll administrative documents or documents with the personal details of other employees) together with copies Bunnings’ Respectful Workplace and Conflicts of Interests policies on 12 June 2019 is in my view a relevant consideration. Having regard to that consideration and my observation above that both Mr Reynolds and Mr Polleycutt have little understanding of Commission processes and protocols, I am not satisfied that in failing to file an outline of submissions and any evidentiary material on 11 June 2019 Mr Reynolds unreasonably failed to comply with the Commission’s direction to that effect.

[29] The above analysis does not support a finding that one or more of the grounds set out in s.399A of the Act are satisfied in this case.

Conclusion

[30] For all the above reasons and having regard to Commissioner Hampton’s previously mentioned description of the requirements of s.399A, I am not satisfied that one or more of the grounds set out in s.399A are satisfied in this case. Accordingly, Bunnings application is dismissed.

[31] In terms of next steps regarding Mr Reynolds’ unfair dismissal application, the Directions issued by the Commission on 10 May 2019 will now be rescinded and next week’s hearing dates vacated. The Commission will also shortly circulate draft revised directions and proposed hearing dates to the parties for consideration/comment.

[32] In other matters, I note that in the material filed by Mr Reynolds on 11 June 2019 there was a section headed “Urgent Determination” which referred inter alia to s.404 of the Act which deals with security for costs and Part 1, s.7 of the Act (though the Act is not specified in the material). At the telephone hearing on 24 June 2019 Mr Polleycutt stated that were the Commission to dismiss Bunnings’ application, Mr Reynolds would consider whether he wished to press the issues identified under that heading in considering any draft revised directions circulated by the Commission. I further note that the material filed by Mr Reynolds on 11 June 2019 states in respect of s.404 of the Act that “security of costs are available to be ordered for the Applicant to have Bunnings, the employer, and deposit relevant sums to enable the Applicant engage appropriate Lawyer in the matter” (text as per original). 11 Against that background, I would take this opportunity to highlight that this statement potentially reflects a misunderstanding of the purpose of an order for security for costs. The purpose of an order for security of costs issue was considered by Commissioner Asbury (as she then was) in Ms Sharon Harris v Home Theatre Group Pty Ltd T/A Home Theatre Group12 where she described the purpose as follows:

“[6] The power of FWA to make an order for security for payment of costs is discretionary. Generally such an order is concerned with ensuring that a defendant/respondent is able to enforce an order for costs made in its favour at a trial, where the plaintiff/applicant fails in their proceedings.” 13 (Underlining added)

[33] Finally, I would strongly encourage Mr Reynolds to contact Legal Aid ACT and/or the ACT Law Society’s pro-bono clearing house to see whether he may be eligible for assistance and/or support/advice in respect of his unfair dismissal application. Beyond this, Mr Reynolds should also, if he has not already done so, examine the range of information/material which is available on the Commission’s website, e.g. the Unfair Dismissal Benchbook, to assist him in preparing his submissions and any associated evidentiary material which he intends to rely on in support of his unfair dismissal application.

Appearances:

T. Page for the Applicant.

E. Polleycutt for the Respondent.

Telephone hearing details:

Canberra.

2019

June 24.

Printed by authority of the Commonwealth Government Printer

<PR710022>

 1   The Order is yet to be issued given the uncertainty as to whether the hearings regarding Mr Reynolds’ unfair dismissal application would proceed as scheduled.

 2   PR956665

 3   [2018] FWC 6839

 4   Mr Page appears for Bunnings in accordance with s.596(4)(b)(i) of the Act. Mr Page is a Senior Workplace Relations Consultant with the Victorian Chamber of Commerce and Industry which is a registered organisation under the Fair Work (Registered Organisations) Act 2009.

 5   Mr Reynolds’ “Response non-compliance hearing” at paragraph u.iii.

 6   [2016] FWC 1584

 7   Ibid at [28]-[32]

 8   [2015] FWCFB 1795

 9   [2013] FWC 9209

 10   [2016] FWC 1584 at [29]

 11   1st Submission by the Applicant at paragraph 8

 12   [2011] FWA 2910

 13   Ibid at [6]