Simon Chin v The Trustee for Colman Family Trust & the Trustee for Hartshorn Family Trust

[2019] FWC 103

[2019] FWC 103

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Simon Chin
v
The Trustee for Colman Family Trust & The Trustee for Hartshorn Family Trust
(U2018/9781)

DEPUTY PRESIDENT BINET PERTH, 15 JANUARY 2018

Application for an unfair dismissal remedy – jurisdictional objection – application to dismiss for failure to comply with directions – application to dismiss granted.

[1] On 21 September 2018, Mr Simon Chin (Chin) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by The Trustee for Colman Family Trust & The Trustee for Hartshorn Family Trust (Trustee).

[2] On 25 October 2018, the Trustee lodged a Form F3 Employer Response to the Application noting it had a jurisdictional objection to the Application, on the basis that the Trustee is a partnership where neither of the partners are a corporate entity and is therefore not a national system employer for the purposes of the FW Act.

[3] The parties did not participate in conciliation with a Fair Work Commission Conciliator as the Trustee requested the jurisdictional objection be determined first.

[4] On 13 November 2018, the parties were issued with directions requiring the Trustee to file and serve materials in support of its jurisdictional objection by close of business on Thursday 22 November 2018 (Directions). The Directions required Mr Chin to file his materials in response by close of business on Thursday 29 November 2018. A copy of the Directions was sent to Mr Chin, his representative Ms Vanessa] Nikolovska of Unfair Dismissals Direct and Mr Coleman of the Trustee.

[5] On 15 November 2018, The Trustee’s representative Mr Yashar Bahmani of Appius Lawyers (Bahmani) contacted the Case Manager for the Application alerting the Case Manager to fact that he had filed a Notice of Representative Commencing to Act on 25 October 2018 but a copy of the Directions had not been forwarded to him. The Case Manager forwarded Mr Bahmani’s email to Chambers the following day and a copy of the Directions and Notice of Listing were forwarded to Mr Bahmani the same day.

[6] On 19 November 2018, Mr Bahmani sought an extension to the filing dates for the Trustee’s materials on the grounds that due to the delay in the receipt of the Directions and the limited availability of a key witness, that he had insufficient time to prepare and file the Trustee’s materials.

[7] An extension to the filing date was granted and on 19 November 2018, amended directions were issued to the parties (Amended Directions). The Amended Directions required the Trustee to file and serve materials in support of its jurisdictional objection by close of business on Monday 26 November 2018 and required Mr Chin to file his materials in response by close of business on Monday 3 December 2018. A copy of the Amended Directions were sent to Mr Chin, Mr Coleman and their respective representatives.

[8] On 23 November 2018 Mr Chin emailed Chambers as follows:

“Hi Hannah,

Could someone please advise what is going on I have had no contact to keep me apprised of the situation.

If they are getting witness statements they are going to be fraudulent so should I not get some witness statements or character references of my own to counter this?

I would really appreciate it if someone could stay in contact with me to help me through this process and let me know what I can do to best defend myself against the lies that I know will be coming.

I feel like I’m out of the loop here and I have no idea what’s going on or where I stand and what mt options are with the slander that is being compiled against me.”

[9] Chambers responded to Mr Chin on Monday 26 November 2018, at 2:25pm as follows:

“Dear Mr Chin,

Your unfair dismissal application has been allocated to Deputy President Binet for determination.

In its response to your application, the Respondent raised a jurisdictional objection to your application, stating that the Fair Work Commission (FWC) does not have jurisdiction to hear your application as the Respondent is not a national system employer.

On 13 November 2018, the Deputy President issued Directions with respect to your application to determine the question of whether the Respondent is a national system employer and therefore whether the FWC has jurisdiction to determine your application.

On 19 November 2018, the Respondent requested an extension to file their materials with respect to the jurisdictional objection. This request was granted on 19 November 2018, and Amended Directions were issued (see attached). The Deputy President has granted you a corresponding extension of the same length in which to file your materials.

The Amended Directions require the parties to file documentation with the FWC so that the Deputy President may make a determination as to the jurisdictional objection. For example, paragraph [5] of the Amended Directions requires you to file with Chambers and serve on the Respondent, by close of business Monday 3 December 2018:

•An outline of submissions in response to the Respondent’s jurisdictional objection;

•A signed and dated witness statement for any witness to be called;

•A copy of any authorities on which you rely; and

•A copy of any other document on which you rely.

Below is a link to the Unfair Dismissal Benchbook which may assist you in preparing your materials:

If you require any further clarification regarding the process, please contact me on the phone number listed below.

Thank you

Kind regards.”

[10] Later on Monday 26 November 2018, Mr Bahmani filed the Trustee’s materials with the FWC and forwarded a copy to Mr Chin and his representative.

[11] On Tuesday 27 November 2018, Chambers sent an email to Mr Chin, Mr Coleman and their respective representatives reminding them that the Jurisdictional Objection had been listed for a Hearing and that the Directions required them to notify Chambers if they preferred that the Jurisdictional Objection be determined on the papers.

[12] Neither Mr Chin nor his representative filed Mr Chin’s materials on or before the close business on Monday 3 December 2018.

[13] On Tuesday 4 December 2018, at 9:11am Mr Tim Rizzuto of Unfair Dismissals Direct (Rizzuto) contacted Chambers stating that:

“The Applicant is currently exploring his options with respect to representation at the next stage of the Unfair Dismissal process. As such we request that the Directions to file submissions with respect to the matter be extended to a date on or after Friday 14 December. This extension is requested in the interests of fairness to the parties and of the efficiency of the impending Arbitration process.”

[14] Mr Bahmani contacted Chambers the same day opposing the extension application on the Trustee’s behalf.

[15] At 4:18pm on Tuesday 4 December 2018, Chambers sent the following email to the parties granting an extension to Mr Chin to file his materials but noting that given the multiple extensions of filing dates provided to date that The Trustee would be invited to apply to dismiss Mr Chin’s application if he did not file his materials by 5:00pm Wednesday 5 December 2018.

“Dear Parties,

I refer to Mr Rizzuto’s email below requesting an extension for Mr Chin to file his materials in this matter on or after 14 February 2018, and Mr Bahmani’s objection to this request on behalf of the Respondent. I note the Form F2 was originally filed on behalf of Mr Chin by Vanessa Nikolovska of Unfair Dismissals Direct.

The Directions were provided to the parties on 13 November 2018. Both parties were granted an extension with which to file their materials on 19 November 2018, which was reflected in Amended Directions (attached).

On 26 November 2018, the Respondent filed materials in accordance with the Amended Directions.

On 27 November 2018, the parties were advised that the matter was listed for a Jurisdictional Hearing on 17 December 2018 and would only be vacated if both parties advise Chambers by close of business 10 December 2018 that they do not wish to make oral submissions. The Amended Directions were also attached to this notification.

Mr Chin’s materials were due to be filed by close of business yesterday.

Notwithstanding that Mr Chin has had a representative since the time of lodgement of his application, has been provided with the Directions on multiple occasions and the request for an extension was made after the due date for filing, the Deputy President is prepared to grant Mr Chin a further extension to comply with the Amended Directions by 5:00pm AWST tomorrow, Wednesday 5 December 2018.

If Mr Chin fails to file his materials by this time, the Respondent will be invited to apply to have Mr Chin’s application dismissed pursuant to section 399A of the Fair Work Act 2009 (Cth) for failing to comply with directions.

Thank you

Kind regards.”

[16] Neither Mr Chin nor his representative filed Mr Chin’s materials on or before 5:00pm Wednesday 5 December 2018. Nor did either contact Chambers seeking any further request or providing an explanation why Mr Chin’s materials had not been filed.

[17] At 2:57pm on Thursday 6 December 2018, Chambers had received no contact from Mr Chin or his representative, Chambers invited the Trustee to apply to have Mr Chin’s application dismissed pursuant to section 399A of the FW Act. As follows:

“Dear Parties,

I refer to my email below. Chambers has not received any materials from Mr Chin pursuant to the Amended Directions.

The Respondent is therefore invited to have Mr Chin’s unfair dismissal application dismissed pursuant to section 399A of the Fair Work Act 2009 (Cth).

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.

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.”

To make its application, the Respondent should complete the attached Form F1, setting out the reason/s why Mr Chin’s application should be dismissed, and any evidence or authorities upon which they rely. The Form F1 application should be forwarded to Chambers and copied to Mr Chin, by 5:00pm AWST Monday 10 December 2018.

Mr Chin is invited to make submissions providing reasons why the FWC should not dismiss his application and evidence or other documentary material supporting those reasons. This material should be forwarded to Chambers and the Respondent by 5:00pm AWST Wednesday 12 December 2018.

If you file material by the due date, the FWC will consider your submissions and may deal with the application on the papers. If either party wishes to also make oral submissions, they should advise Chambers by 5:00pm AWST Wednesday 12 December 2018.

Mr Chin, if you do not intend to comply with the directions above, please file a Form F50 Notice of Discontinuance. Please be advised that if you do not file your submissions and evidence as to why your application should not be dismissed by 5:00pm AWST Wednesday 12 December 2018, your application for an unfair dismissal remedy will be dismissed.

Kind regards.”

[18] As invited by the email Mr Bahmani filed in the FWC a Form F1 and supporting evidence and copies of relevant authorities on Monday 10 December 2018, forwarding a copy to Mr Chin and his representative Mr Rizzuto (Dismissal Application).

[19] At 3:18pm on Monday 10 December 2018, Mr Chin contacted Chambers noting that he was aware of the filing date for submissions opposing the Trustee’s Dismissal Application was 5:00pm Wednesday 12 December 2018.

[20] Nothing further was heard from Mr Chin or his representative until 12:38pm on Wednesday 12 December 2018, when he contacted Chambers advising that he was representing himself and that the reasons why his Application should not be dismissed were:

“My reasons being that my representation was highly incompetent, failing to meet your submission dates (gifting my former employer this opportunity to request my case be dismissed) and failing to advise me of the situation the whole way through this process and explain it to me in regards to my options and the position I have been left in.

As I am completely inexperienced in this field this has been very difficult for me but what was done to me by former employer was unconscionable (his reason for dismissing me was literally “I’ll think of something”) and I want to keep fighting this due to the principle of the matter so any help or advice you could give me would be greatly appreciated. I just need to know what is going on and where I stand.
Thank you.”

[21] At 1:51pm on the same day Chambers responded as follows:

“Dear Mr Chin,

Thank you for your email.

As per the email from Chambers sent on 10 December at 5:01pm, you have been provided until 5:00pm AWST Wednesday 12 December 2018, in which to file submissions as to why the FWC should not dismiss your application and any evidence supporting those submissions.

Your email below and prior emails state that correspondence you sent to your representatives was not returned in a timely manner and/or the responses you received were unhelpful. However, the email you have provided below is not evidence of this.

The Deputy President has requested you provide evidence of the occasions that you endeavoured to contact your legal representatives, as well as any other submissions or documentary evidence in support of your response to the Dismissal Application.

Please be advised that any submissions and evidence you file with Chambers should be copied to the Respondent.

Thank you.”

[22] In a series of emails between Chambers and Mr Chin and by telephone Chambers endeavoured to clarify for Mr Chin the direction to file evidence of his efforts to ensure that his materials were filed in accordance with the Directions and Amended.

[23] Eventually Mr Chin filed a chain of emails which reveal that Mr Chin contacted his representative Mr Rizzuto at 1:25pm on Friday 7 December 2018, a day after Chambers invited the Trustee to apply to have his Application dismissed. In the chain of emails Mr Chin requests that Mr Rizzuto explain why Mr Chin’s materials were not filed on time. In the same chain of emails Mr Chin also indicates that he does not intend to pay the professional fees of Unfair Dismissals Direct due to failure to render the professional services for which he had been charged Mr Rizzuto confirms that the fee will be waived.

[24] 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.

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.”

[25] Mr Chin has been on notice since 13 November 2018 of the need to prepare materials in response to the Jurisdictional Objection. Until 19 November 2018 those materials were due on 29 November 2018. Subsequently the due date for the filing of his materials was extended until Monday 3 December 2018.

[26] His email of 23 November 2018 indicated that notwithstanding that Unfair Dismissals Direct were on the record as his representative that he in fact was preparing his own materials and conducting his case on his own account. In light of this on Monday 26 November 2018 Chambers provided him with a detailed written explanation of what was required of him and the dates by which the relevant materials were due. He was also provided with links to resources on the FWC website to assist him with the content of his submissions.
[27] Notwithstanding this assistance he, nor his representatives from Unfair Dismissals Direct, filed any materials by the due date and did not seek any extension to the filing date before the materials were due.

[28] When an extension to the filing dates was granted to Mr Chin he was informed that:

“Notwithstanding that Mr Chin has had a representative since the time of lodgement of his application, has been provided with the Directions on multiple occasions and the request for an extension was made after the due date for filing, the Deputy President is prepared to grant Mr Chin a further extension to comply with the Amended Directions by 5:00pm AWST tomorrow, Wednesday 5 December 2018.

If Mr Chin fails to file his materials by this time, the Respondent will be invited to apply to have Mr Chin’s application dismissed pursuant to section 399A of the Fair Work Act 2009 (Cth) for failing to comply with directions.”

[29] Notwithstanding this warning Mr Chin failed to ensure that his representatives, if they were still acting on his behalf, or that he filed his materials by the due date. In fact he did nothing further until the Trustee had been put to the time and expense of preparing, filing and serving the Dismissal Application.

[30] Mr Chin has been copied in on the correspondence issued by the FWC in relation to his Application. The Directions identified him by name and clearly stated what was required of him. Having not filed his materials as initially directed, Mr Chin was on notice that his representatives were not discharging his obligations on his behalf. He has not provided any evidence of his efforts to ensure that his representatives discharged his obligations prior to The Trustee being invited to make the Dismissal Application.

[31] In any event based on the materials filed by the Trustee in support of the Jurisdictional Objection it appears likely that even if Mr Chin had filed his materials that his opposition to the Jurisdictional Objection has limited prospect of success.

[32] On the application of the Trustee and in the exercise of my discretion under section 399A of the FW Act, I have decided to dismiss the Application on the ground that Mr Chin failed to comply with directions of the FWC to file his materials on 3 December 2018 extended to 5 December 2018.

[33] An Order [PR703689] giving effect to this decision was issued separately.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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