Samuel Spann v BHP WAIO Pty Ltd

[2022] FWC 3247

[2022] FWC 3247

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Samuel Spann
v

BHP WAIO Pty Ltd

(U2022/8627)

COMMISSIONER SCHNEIDER PERTH, 8 DECEMBER 2022

Application for an unfair dismissal remedy

1. This decision concerns an application made by Mr Samuel Spann (Mr Spann or the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The Respondent is BHP WAIO Pty Ltd (the Respondent).

1. The Respondent has filed an application for the matter to be dismissed pursuant to section 399A of the Act.

1. In this instance, I have decided to dismiss the Applicant’s unfair dismissal application under section 399A(1)(b) of the Act. My detailed reasons follow. 

Legislation

1. Section 399A of the Act provides that the Fair Work Commission (the Commission) may, on application by an employer, dismiss an application for an order under Division 4 of the Act if the Commission is satisfied that the Applicant has unreasonably failed to attend a hearing or comply with a direction or order of the Commission relating to the application. 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, the decision-maker has a further discretionary decision as to whether the unfair dismissal application should be dismissed.

1. Section 399A of the Act 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.”

1. The Commission notes that power to dismiss a substantive application should only be exercised cautiously and sparingly.[1] In performing its functions, the Commission must take into account certain factors, as set out in section 578 of the Act.

1. The application before me is for an unfair dismissal remedy under Division 4 of the Act and accordingly, may be the subject of a dismissal order under section 399A of the Act. The Respondent is the employer and has made an application under section 399A of the Act. Section 399A of the Act has been enlivened. The issue for determination is whether the Applicant has unreasonably failed to attend a hearing or comply with a direction or order of the Commission relating to the matter.

History of the application

1. The application was listed for staff conciliation on 12 October 2022; however, the Applicant did not attend the conciliation. The Applicant notified the conciliator two days later that he was unable to attend, stating he was travelling for a family member’s funeral. As the Applicant had failed to attend the conciliation the Respondent did not consent to any further conciliation of the matter.

1. On 27 October 2022, the application was allocated to my chambers. The matter was listed for Hearing and directions were issued.

1. On 14 November 2022, directions were issued by my chambers and direction 3 stated the below:

“The Applicant is directed to file in the Commission, and serve on the other party, the following materials in support of their application:

a)   Outline of Submissions.

b)   Written statements of evidence for any witnesses to be called, including for the Applicant if they wish to be a witness.

c) Copies of any supporting documents. These must be filed and served by     4:00pm 28 NOVEMBER 2022.”

1. After filing submissions regarding representation, the Respondent noted that it was unclear if the Applicant was represented and sought clarification on who should be included in correspondence.

1. My associate contacted the Applicant to clarify whether he was represented. The Applicant could not confirm with certainty if he would retain the representative who filed his application due to the associated costs.

1. In this phone call, the Applicant expressed that he was interested in a conciliation and was confused as to why it had not been rescheduled. My associate informed him that it appeared the Respondent had not consented to attend a further conciliation.

1. My associate told the Applicant that she would notify the Respondent that the Applicant is not currently represented and would seek their interest in attending another conciliation. My associate also offered to send the Applicant links to publicly available resources that could assist in him finding a representative.

1. On 23 November 2022, the Applicant received the below information from my chambers, the email included links to resources, from the Commission and the Law Society of WA, aimed at assisting the public in finding legal representation.

“Dear Mr Spann,

Following our phone call earlier, please see the below links which may contain some useful information regarding representation. Your current status on our file is that you are unrepresented, if this changes we request that your representative file a Form F53.”

1. The Respondent informed Chambers that they were not interested in attending a further conciliation. On 28 November 2022, despite the directions outlined above, the Applicant failed to file material any material in support of his application.

1. On 1 December 2022, the Respondent made an application seeking to have the matter dismissed pursuant to section 399A(1)(a) and section 399A(1)(b) of the Act. Later that day, I issued a direction requiring the Applicant to file the requested materials and to provide a response to the Respondent’s application by 5 December 2022. The Applicant was warned his application could be dismissed:

“The above must be filed in the Commission and served on the Respondent by 10:00AM (AWST) 5 December 2022. If you do not comply with this further direction of the Commission, the Commissioner will take your repeated non-compliance as indication that you do not wish to proceed with the matter and the file may be closed. If you do not wish to proceed with your matter, you may indicate by reply email that you wish to withdraw your application.”

1. No response was received from the Applicant. My associate called the Applicant and noted his non-compliance and confirmed that the Applicant had received the above correspondence. The Applicant advised he had engaged new legal representation and that they should have responded to the Commission. The Applicant assured my associate that he would ensure his lawyers contact the Commission before the next morning. Considering this information, I extended the direction by 24 hours. Despite this assurance, the Commission has not received any explanation or contact from the Applicant or any representatives.

1. On 6 December 2022, my Chambers issued correspondence highlighting the further non-compliance and the Respondent’s application to dismiss the matter. I directed the Applicant to make submissions regarding the application to dismiss by 4:00pm 7 December 2022. The Applicant was further warned his application could be dismissed.

1. Again, no response has been received from the Applicant.

Consideration

1. On 14 November 2022, the Commission issued directions in relation to the hearing of the merit of the Applicant’s application. direction 3 required the Applicant to file and serve a written statement of evidence for each witness to be called, an outline of submissions and copies of any documents to be relied on in support of the Applicant’s case by 4:00pm, 28 November 2022. The Applicant failed to comply with this direction.

1. On 1 December 2022, the Respondent made an application seeking to have the matter dismissed pursuant to section 399A(1)(a) and section 399A(1)(b) of the Act. On 1 December 2022, the Applicant was placed on notice that a failure to file and serve the relevant materials may result in the application being dismissed. The Applicant did not file and serve any of the required materials in accordance with the amended direction.

1. On 5 December the Applicant was afforded another opportunity to comply and put on notice about that the matter could be dismissed. The Applicant failed to comply with this direction.

1. On 6 December the Applicant was afforded a final opportunity to respond. The Applicant failed to comply with this direction.

Conclusion

1. The Commission has afforded the Applicant several opportunities to advance his application despite his non-compliance. The Applicant has repeatedly failed to comply with directions of the Commission. The Applicant is clearly aware of the proceedings and was receiving correspondence from both the Respondent and the Commission. The Applicant has never sought or requested an extension from the Commission nor provided reasonable explanation for the continued non-compliance.

1. I am satisfied that the Applicant, Mr Spann, has unreasonably and repeatedly failed to comply with directions of the Commission relating to his application.

1. Consequently, Mr Spann's application will now be dismissed pursuant to section 399A(1)(b) of the Act. An Order to that effect will be issued in conjunction with this decision.[2]

COMMISSIONER

[1] [2019] FWCFB 2925, [31].

[2] [PR748736].

Printed by authority of the Commonwealth Government Printer

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