Ricky Whatmore v Uniting Care West
[2022] FWC 3153
•2 DECEMBER 2022
| [2022] FWC 3153 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ricky Whatmore
v
Uniting Care West
(U2022/9176)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 2 DECEMBER 2022 |
Application for an unfair dismissal remedy – application pursuant to s 399A.
On 12 September 2022, Mr Ricky Whatmore (the Applicant) made an unfair dismissal application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act) on the basis that he had been unfairly dismissed by Uniting Care West (the Respondent).
Having been non-compliant with directions that issued on 3 November 2022, the Respondent applied to have the Applicant’s unfair dismissal application dismissed pursuant to s 399A of the Act.
The exercise of the Commission’s powers under s 399A of the Act to dismiss an unfair dismissal application for the identified unreasonable conduct set out in subsections (a)-(c) involves the exercise of a broad discretion.[1] This type of matter involves two discretionary decisions. First, that the applicant has unreasonably failed to attend a conference or hearing, comply with a direction, or order, or discontinue the application after a settlement agreement has been concluded. Second, if the decision-maker is satisfied that the applicant has unreasonably failed to comply with one or more of their obligations referred to in subsection (b) of s 399A of the Act, the decision-maker has a further discretionary decision as to whether the unfair dismissal application should be dismissed.
In this instance, I have decided to dismiss the Applicant’s unfair dismissal application under s 399A(1)(b) of the Act. My detailed reasons follow.
Background
Directions were issued on 3 November 2022 for the filing of submissions, witness statements and any other documentary material. The Applicant was directed that his materials were to be filed by no later than 4:00PM on Wednesday, 23 November 2022.
It appears uncontroversial between the parties that Uniting Care West is a national system employer albeit given its status as a not-for-profit organisation, the parties were asked to address this point in the directions that issued on 3 November 2022, in addition to filing materials on merits and remedy.
On 23 November 2022, Chamber received an email from the Applicant, time stamped 2:06PM in which the Applicant requested that the hearing date of 20 December 2022 be adjourned on the basis that he would not be in Perth at the time, as he would be working on that date. The request for the adjournment was made on the same date as the Applicant’s materials fell due to be filed. The Applicant’s email dated 23 November 2022, made no mention of extending the period in which his materials were to be filed.
On 23 November 2022, Chambers sought the Respondent’s view of the Applicant’s request for an adjournment. On that same date, by email time stamped 6:14PM, the Respondent informed the Commission that it did not object to an adjournment of the proceedings but that the Applicant had failed to comply with the directions of 3 November 2022, and on that basis the Applicant’s unfair dismissal application should be dismissed pursuant to s 399A(1)(b) of the Act.
Later that evening, on 23 November 2022, by email time stamped 7:13PM, the Applicant apologised for having not filed his materials noting that he had misread that he was due to file his materials by 23 November and had noted 9 December 2022. The Applicant explained that his oversight was not intentional.
By email dated 24 November 2022, time stamped 7:28AM, the Respondent, referring to the Applicant’s email of the preceding evening, requested a hearing pursuant to s 399A to have the unfair dismissal application dismissed.
On the morning of 24 November 2022, by email time stamped 8:36AM, Chambers referred to the Applicant’s request for an extension of time in which to file his materials and to the Respondent’s proposition that the Applicant’s unfair dismissal application should be dismissed for failure to comply with the directions of 3 November 2022. The Respondent was thereafter directed to respond to the Applicant’s adjournment request and extension of time request, and in circumstances where it wished to press the dismissal of the application under s 399A, it was to file a Form F1 to make the application. The Respondent was directed to respond by 4.00PM on that same day.
The Respondent further emailed Chambers at 5:17PM on 24 November 2022 noting that it would unfortunately not meet the deadline for the filing of its application under s 399A but would aim to have the application filed in the Commission by lunch time the following day.
By email dated 25 November 2022, time stamped 8:09AM, the Applicant observed that the Respondent had missed the deadline by which to file the application under s 399A and requested, on the ground of an interest of fairness, that the Commission update directions in light of the Applicant’s availability surrounding his new employment. It is noted that in his email of 23 November 2022, the Applicant had outlined his limited availability to attend a hearing over the December and January period, because his new employment commenced on 6 December 2022, and he was required to work in remote locations throughout Western Australia.
By email dated 25 November 2022, time stamped 9:04AM, Chambers advised the parties of the amended hearing date of 4 January 2023 and emphasised that the directions of 3 November 2022 still stood, and it was therefore ‘incumbent upon the Applicant to submit his materials as a matter of urgency’. The email further noted:
If, however the parties agree, the directions can be amended for both parties in light of the new hearing date.
Otherwise in circumstances where that course is opposed by the Respondent and the Respondent files an application under s 399A, the matter will proceed to a hearing regarding the dismissal of the application for non-compliance with the directions.
Thereafter, the Respondent filed its application to dismiss under s 399A on 25 November 2022. Because of the application under s 399A having been made, further directions issued on 25 November 2022 at 1:27PM, directing that the Respondent to file its material in support of its application by 28 November 2022, and the Applicant by 4:00PM on 30 November 2022. Parties were informed that the matter would proceed to hearing on 1 December 2022 at 9.00am on whether the unfair dismissal application should be dismissed.
In the directions of 25 November 2022, time stamped 1:27PM, the Applicant was directed as follows:
The Applicant is reminded that he is required to file with Chambers and serve on the other Party:
·written submissions, witness statements, a document list, and any material (i.e. the documents listed in your document list) upon which he wishes to rely relating to the jurisdictional issue of whether the Respondent is a national system employer, merits and remedy, as a matter of urgency.
Further, considering the Respondent’s request to have the merits hearing date moved to a later date due to a shutdown of the Respondent business over the Christmas period, and whilst accommodating the Applicant’s availability for a hearing, the parties were notified that the hearing date for the issue of jurisdiction (national system employer), merits and remedy would be 9 January 2023.
By email dated 28 November 2022, time stamped 12.54PM, the Applicant wrote to Chambers as follows:
Dear Deputy President, Mr Ford
Firstly Mr Bibby, thank you I confirm I have received your documents surround 399A application.
My questions is to the Commission. Can you please assist to clarify what is next required from me?
My specific questions is should I only being focussing on responding to the 399A application solely to be submitted by the 30th November, and only once this matter is dealt with, then a new date shall be set for me to provide witness statements, Applicant outline argument merits I wish to present at the hearing in January?
Or should I be providing everything I was preparing previously and witness statements in one submission by 30th Nov?
I do appreciate your clarification
In response to the Applicant’s email dated 28 November 2022, Chambers directed the parties as follows, at 4:32PM on 28 November 2022:
Chambers confirms receipt of the materials filed by the Applicant on 28 November 2022 pertaining to the jurisdictional issue of whether the Respondent is a national system employer.
However, the directions sent to the parties on 3 November 2022 (attached) stated:
·The Applicant is required to file with Chambers and serve on the other Party:
owritten submissions, witness statements, a document list, and any material (i.e. the documents listed in your document list) upon which he wishes to rely relating to the jurisdictional issue of whether the Respondent is a national system employer, merits and remedy, by no later than 16:00hrs (AWST), Wednesday, 23 November 2022.
In the attached email sent to parties on 25 November 2022, the parties were informed that the directions issued on 3 November 2022 remain in place, and it was therefore incumbent that the Applicant file his materials as a matter of urgency.
In the further attached email sent to parties on 25 November 2022, in relation to the Respondent’s application for the Applicant’s unfair dismissal application to be dismissed under s 399A of the Fair Work Act 2009 (Cth), the Deputy president directed that:
The Applicant is required to file with Chambers and serve on the other Party:
· written submissions, witness statements, a document list, and any material upon which he wishes to rely relating to why the application should not be dismissed, by no later than 1600hrs (AWST) Wednesday, 30 November 2022.
Both sets of directions, those issued on 3 November 2022 and 25 November 2022, remain in place. To date, the Applicant has not complied with the direction issued on 3 November 2022 to file written submissions, witness statements, a document list, and any material (i.e. the documents listed in your document list) upon which he wishes to rely relating to the jurisdictional issue of whether the Respondent is a national system employer, AND merits and remedy.
The Applicant is due to file the materials listed below in accordance with the directions issued on 25 November:
·written submissions, witness statements, a document list, and any material upon which he wishes to rely relating to why the application should not be dismissed, by no later than 1600hrs (AWST) Wednesday, 30 November 2022.
It is further noted that the directions of 25 November 2022 directed the parties to attend a video conference test (VC Test) at 9:00AM on 30 November 2022. The Applicant failed to attend the VC Test and provided no notification of his absence prior to the event. Chambers contacted the Applicant after the VC Test on the morning of 30 November 2022, to again remind him of the hearing listed for 9.00AM on 1 December 2022 regarding the proposed dismissal of his application. The Applicant apologised for missing the VC Test.
As of 1 December 2022, the Applicant had not yet filed his materials in compliance with the directions of 3 November 2022. This is the case notwithstanding having not been directed that an extension of time in which to file materials was granted and having been expressly informed on 25 November 2022 that the directions of 3 November 2022 remained in place, and he was therefore required to comply with them and file his materials as a matter of urgency.
Consideration
It is accepted that there is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at her or his initiative.[2]
Of course, in these types of applications, one is always guided by the premise that the power to dismiss a substantive application should only be exercised cautiously and sparingly, particularly where, as here, the Applicant has sought orders for relief for his alleged unfair dismissal.[3] That cautious approach is said to be warranted because ordering the dismissal of an application would result ‘in the complete extinguishment of an applicant’s right to have his/her application for relief orders under beneficial legislation, heard and determined according to law.’[4]
The Commission’s powers to dismiss an application are set out generally at s 587 of the Act and specifically in respect to unfair dismissal applications under s 399A. Section 399A reads:
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.
In performing its functions, the Commission must take into account certain factors, as set out in s 578 of the Act:
578 Matters the FWC must take into account in performing functions etc.
In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
The Respondent submitted that the unfair dismissal application should be dismissed because the Applicant had failed to comply with the directions of the Commission issued on 3 November 2022. With respect to the directions issued on 3 November 2022, the Respondent identified that the Commission had gone to some length to reinforce the significance of non-compliance, by including in the directions the following text in bold:
Compliance with the above directions is essential. The parties are put on notice that there may be adverse consequences for a party should they fail to comply with the above directions. The Deputy President reminds the parties of the following sections of the Act:
Sections 400A, 401, and 611 – costs sections
Section 399A; allowing the Commission, upon application, to dismiss an application due to non-compliance with a direction of the Commission, or for failing to attend a hearing/conference/mention.
Section 587 – dismissing applications.
The Respondent further observed that the directions of 3 November 2022 went to some pains to point out the need for both parties to read the directions carefully.
The Respondent submitted that the Applicant’s email correspondence of 23 November 2022 suggested that his reasons for his failure to comply with the directions were misreading the directions of 3 November 2022 and extreme stress. Furthermore, the Respondent observed the Applicant’s email dated 24 November 2022, time stamped 8:41AM, appeared to have suggested that he was confused by the multiple emails issued by Chambers and the various dates referred to in the directions.
It is evident that the Applicant, in his email to Chambers dated 28 November 2022, time stamped 12:54PM, sought to clarify what was required of him. The Applicant did so in circumstances where directions had issued, which, on any objective level, made the programming of the matter clear.
The Commission is required to consider the exercise of discretion under s 399A(1)(b) by reference to an objective evaluation of the Applicant’s conduct and whether such conduct was unreasonable in the circumstances.
It has, at all material times, been made clear to the Applicant that he was required to file his materials in support of his unfair dismissal application, addressing merits, remedy and whether the Respondent was a national system employer, by 23 November 2022. Although the Applicant filed material with respect to the latter issue on 28 November 2022, he had, at the time this dismissal application was heard, not filed materials concerning the merits of the matter or the remedy sought.
On 23 November 2022, the Applicant sought an adjournment of the hearing listed for 20 December 2022 on the basis that he would not be in Perth at that time but would be working at remote locations in Western Australia. The Applicant did not seek an extension of time in which to file his materials prior to that deadline passing. Furthermore, the request for the adjournment was made on the same day that his materials fell due to be filed (approximately two hours before the deadline). I do not consider this to be a coincidence.
It is evident in the correspondence to Chambers that the Applicant is literate, capable of reading and responding to emails, and can respond promptly to correspondence, when he chooses to do so. However, whilst the Applicant has been informed that: (a) that his materials regarding merits, remedy and jurisdiction were to be filed on 23 November 2022 (directions of 3 November 2022); (b) that the directions of 3 November 2022 stood (directions 25 November 2022); and (c) that he was to file the materials in accordance with the directions of 3 November 2022 as a matter of urgency (directions of 25 November 2022 and 28 November 2022), he has not done so.
Furthermore, whilst the Applicant submitted materials regarding the jurisdictional issue regarding whether the Respondent was a national system employer on 28 November 2022, he nevertheless did not comply with the directions of 3 November 2022, given what was required of him was to file materials concerning the merits, remedy, and jurisdictional issue.
In my view, the directions issued to the Applicant have been comprehensive, have highlighted the critical dates for filing materials, and have identified clearly what needs to be filed. Furthermore, the directions of 3 November 2022 placed the Applicant on notice about the significance of filing his materials in support of his unfair dismissal application in accordance with the directions.
The Applicant highlights that it is evident that the Respondent did not file its application under s 399A in the Form F1 timeframe set in the directions. The Respondent did, nevertheless, inform Chambers that it wished to make the application upon the Applicant having not complied with the directions of 3 November 2022, and subsequently filed the application within a day of the set timeframe.
On 25 November 2022, the Commission issued directions to the parties regarding the Respondent’s application under s 399A of the Act. The Applicant was directed to file his materials in respect of this application by 4.00PM on 30 November 2022. Whilst the Applicant complied with this direction, the Applicant failed to present for the VC Test, and was subsequently contacted to remind him of the hearing on 1 December 2022 regarding the dismissal of his application.
At the hearing, the Applicant was asked why he had not submitted his materials in relation to the merits of the matter in accordance with the directions of 3 November 2022, and the subsequent directions issued by emails on 25 November 2022 time stamped 9:04AM and 1:27PM. The Applicant pressed that he was confused by the directions and understood that the Commission would first be dealing with the jurisdictional issue of whether the Respondent was a national system employer. On this point, it is relevant to note that neither party contended that the Respondent was not a national system employer, however, I considered it prudent to consider given the Respondent is a not-for-profit organisation.
The directions of 3 November 2022 in part read:
Dear Parties
Chambers refers to the status conference held before Deputy President Beaumont at 9:15hrs (AWST), Thursday, 3 November 2022.
At the conference, it was agreed that the matter would proceed to a merits and jurisdictional hearing.
The attached directions issued previously are hereby amended as follows:
The matter will be listed for a member assisted conciliation. The conciliation will be listed at 13:00hrs (AWST), Wednesday, 9 November 2022.
If the matter remains unresolved post conciliation, it will proceed to a combined jurisdiction and merits hearing at 9:00hrs (AWST), Tuesday, 20 December 2022. The hearing will be conducted by video using Microsoft Teams. Shortly, the Parties will receive an email with information regarding the hearing and Microsoft Teams.
The hearing will contend with the issues of whether the whether the Respondent is a national system employer, the merits of the application, and remedy. Please note that compensation for underpayments is not within the Commission’s jurisdiction.
We acknowledge that this email is very long. It is very important, however, that you read it through in full, and take the time to understand the information provided. Please pay particular attention to anything that is highlighted (and the information contained therein).
Between now and the hearing date, you will need to file submissions, witness statements and other materials that make out your case. Resources are provided below, and are in addition attached to this email, that explain the process. We have provided templates for some of the materials you are required to file.
Directions
The Deputy President directs as follows:
·The Applicant is required to file with Chambers and serve on the other Party:
o written submissions, witness statements, a document list, and any material (i.e. the documents listed in your document list) upon which he wishes to rely relating to the jurisdictional issue of whether the Respondent is a national system employer, merits and remedy, by no later than 16:00hrs (AWST), Wednesday, 23 November 2022.
The Applicant’s reason for his non-compliance with the direction of 3 November 2022, and subsequent failure to file the requisite materials on an urgent basis, demonstrates that he has failed to prosecute his unfair dismissal application as required. Such conduct was objectively unsatisfactory. This is despite having been provided with time to respond to the various directions and prompts.
The parties are entitled to have the matter heard quickly and as efficiently as possible. Any reasons why the unfair dismissal application should not be dismissed must be considered in the context of the proper administration of justice and fairness to the parties to have the matter dealt with quickly and efficiently in accordance with s 577 of the Act. The Respondent’s preparation of its case is evidently dependent, to a significant extent, on the receipt of the Applicant’s submissions, evidence and documents. The Respondent is required to submit those materials by 7 December 2022, hence the urgency surrounding the Applicant filing his materials in accordance with the directions of 3 November 2022.
The Applicant has been provided with clear directions on what was required, the resources available and the timeframe in which materials were to be filed. Furthermore, his request for an adjournment of the hearing date was granted given his unavailability at the time of the listed hearing. This is despite the adjournment request being made on the date that his materials were required to be filed.
However, whilst the adjournment was granted on the basis the Applicant would not be in the Perth metropolitan area during the period 6 December 2022 to 27 December 2022 because he would be working in a new job, an extension of time in which to file his materials was not granted.
The Applicant details in his email dated 23 November 2022, time stamped 2:06PM, that he was offered the new employment at the end of October 2022 and had to attend court to request to have his driver’s licence conditions changed – which took place on 14 November 2022. Whilst appreciative that his dismissal, obtaining a new job and attending at court may have proved stressful for the Applicant, I do not consider that such events provide justification for his failure to file materials in support of his unfair dismissal application by 23 November 2022, some nine days after his court attendance.
The object of Part 3-4 not only requires of me to ensure that a ‘fair go all around’ is afforded to the employee, but also to the employer. It had been open to the Applicant to file his materials in respect of the merits of the matter on an urgent basis – even after the 23 November 2022 deadline. The Applicant has not done so and in this respect points to a level of confusion emanating from the directions issued, all of which set out clearly what was required of him.
I am satisfied that there has been non-compliance with directions of the Commission relating to the substantive application and that in all the circumstances such conduct has been unreasonable.
The Applicant’s non-compliance with the directions of 3 November 2022 and absence of what I consider to be cogent reasons for the same, in addition to his non-responsiveness to the directions issued on 25 November 2022 and 28 November 2022, in relation to filing materials on merits and remedy, have led me to the following conclusion.
Conclusion
I have considered the submissions and evidence provided by the parties and have concluded, on balance, that the Applicant has unreasonably failed to comply with directions of this Commission relating to his unfair dismissal application in respect of merits and remedy. I am, therefore, persuaded that I should exercise my discretion under s 399A(1)(b) and dismiss his unfair dismissal application.
I am appreciative that the Applicant has purported that his mistake of 23 November 2022 was genuine (not having filed materials by that date). However, since 23 November 2022, the Applicant has been repeatedly placed on notice to file his materials in respect of the merits of his unfair dismissal application and remedy. Further, while the Applicant has not been inattentive at all times regarding the advancement of his application, he has nevertheless failed to attend to what is fundamentally the cornerstone of his case – materials in support of merit.
The decision is not one made lightly, and I have indeed adopted a cautious approach when dealing with the application to have the unfair dismissal application dismissed. An Order[5] dismissing the unfair dismissal application will be issued today.
The application has been dealt with on the basis that the Respondent was a ‘national system employer’, given no argument was advanced by either party to the contrary.
DEPUTY PRESIDENT
Appearances:
Mr R Whatmore, Applicant.
Mr S Bibby, for the Respondent.
Hearing details:
2022.
Perth (by video):
1 December.
[1] Hansen v Calvary Health Care Adelaide Ltd[2016] FWCFB 5223, [39].
[2] Viavattene v Health Care Australia[2013] FWCFB 2532, [39].
[3] Cole v Roy Hill Station Pty Ltd [2019] FWCFB 2925, [31].
[4] Ibid.
[5] PR748521.
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