Simon Taylor v Shade Australia Pty Ltd
[2024] FWC 1075
•24 APRIL 2024
| [2024] FWC 1075 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Simon Taylor
v
Shade Australia Pty Ltd
(U2024/2137)
| COMMISSIONER MATHESON | SYDNEY, 24 APRIL 2024 |
Application for an unfair dismissal remedy – s.399A – failure to attend hearing held by the Commission – s.587 – failure to comply with a direction of the Commission relating to the application
On 27 February 2024 Simon Taylor (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Shade Australia Pty Ltd (Respondent).
The initial mention and directions hearing
The Respondent raised a jurisdiction objection to the application, its position being that the Applicant was not dismissed. Directions in the matter were provided to the parties on 25 March 2024 and the matter was listed for a mention and directions hearing before the Commission on 26 March 2024. The Applicant did not attend the mention and directions hearing and when my Chambers made two calls to the Applicant in an attempt to dial him in, he did not answer. Voicemail messages were left requesting that that the Applicant make contact with my Chambers. The Applicant did not provide prior notice to Chambers regarding his inability to attend the mention and directions hearing and did not return the calls from my Chambers.
Request for evidence of non-attendance
My Chambers emailed the Applicant on 26 March 2024 seeking an explanation of the reasons for non-attendance. The email also proposed that, pending the Applicant’s explanation for non-attendance, the Commission would hold a further case management conference to:
deal with the question of whether the Respondent should be granted permission to be represented by a paid agent (s.596(2) of the Fair Work Act 2009 (Cth);
seek the views of the parties regarding:
othe format of the arbitration including whether it should proceed as a hearing or determinative conference and whether the parties are available to attend in person.
othe dates proposed for the hearing and filing of submissions and evidence as set out in proposed draft directions;
odiscussing the process of the Commission to assist the parties in preparing for arbitration;
oto see if the parties would like the assistance of the Commission in narrowing the issues in dispute.
An explanation for the Applicant’s non-attendance at the mention and directions hearing on 26 March 2024 was sought by 28 March 2024.
The Applicant did not respond to the Commission’s email of 26 March 2024 and did not return my Chambers’ calls.
Section 399A application
On 4 April 2024 the Respondent wrote to the Commission seeking that the application be dismissed on the basis that:
the Applicant did not attend the case management conference on 26 March 2024 and was uncontactable when Chambers attempted to contact him at the scheduled time;
a voicemail message was left for the Applicant by the Commission and the Applicant did not make return contact; and
the Applicant was requested to provide an explanation to the Commission for his non-attendance by 28 March 2024, no explanation has been given and no other contact has been made by Mr Taylor (to the Commission).
The Commission sought clarification from the Respondent as to whether it was making an application that the application be dismissed pursuant to s.399A of the Act. The Respondent confirmed this was its intention and included an additional ground for the application, being that the Applicant failed to attend a conference before the Commission and failed to comply with a direction of the Commission.
Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Fair Work Commission Rules 2024 (Rules) pursuant to s.586 of the Act and accept the application. As there was sufficient information in the emails of the Respondent to enable the Applicant to respond, I waived compliance with the Rules pursuant to s.586 of the Act and accepted the s.399A application.
Response sought to s.399A application
On 11 April 2024 my Chambers wrote to the Applicant indicating that the Respondent had made an application that the matter be dismissed on the basis that:
the Applicant did not attend the case management conference on 26 March 2024 and was uncontactable when Chambers attempted to contact the Applicant at the scheduled time;
a voicemail message was left for the Applicant by the Commission and the Applicant did not make return contact;
the Applicant was requested to provide an explanation to the Commission for the Applicant’s non-attendance by 28 March 2024, no explanation has been given and no other contact has been made by the Applicant (to the Commission);
the Applicant failed to attend a conference conducted by the Commission and failed to comply with a direction from the Commission.
The Commission directed the Applicant to provide further information and evidence regarding the reasons for their non-attendance together with reasons as to why their application should not be dismissed pursuant to s.399A of the Act (addressing the matters raised above) by no later than 18 April 2024.
The Applicant was advised in that email that if they did not address the s.399A application by this time, the Commission may proceed to deal with the s.399A application on the material before it and this may result in the dismissal of the claim for unfair dismissal remedy.
The Applicant did not respond to the Commission’s email and did not otherwise make any contact with my Chambers.
The contact details used by the Commission in attempting to call and email the Applicant were those contact details the Applicant had provided in their application. It is apparent that the Applicant has not made any contact with the Commission since the making of the unfair dismissal application.
Consideration
Section 399A of the Act provides:
“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 Explanatory Memorandum to the Fair Work Act Amendment Bill 2012 (Cth) explains that:
“161.Item 2 inserts a new section 399A to enable the FWC to dismiss an unfair dismissal application where the FWC is satisfied that the applicant has unreasonably:
·failed to attend an FWC conference or hearing relating to the application;
·failed to comply with an FWC direction or order relating to the application, or
·failed to discontinue the application after a settlement agreement has been concluded.
162. The power to dismiss an unfair dismissal application in these circumstances is
not intended to prevent an applicant from robustly pursuing a legitimate unfair dismissal claim. Rather, the amendment is intended to address the small proportion of applicants who may pursue claims in an improper or unreasonable manner. This amendment responds to Panel recommendation 42.
163. In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant. Examples of when the FWC may exercise its discretion to dismiss an application under these provisions may include where:
·an applicant fails to attend an FWC proceeding relating to the matter without providing prior advice and/or without any reasonable excuse for their failure to attend, or
·an applicant continues to pursue an unfair dismissal application despite a settlement agreement having been concluded by the parties.
164. Note 2 to new subsection 399A(1) draws the reader’s attention to the FWC’s capacity to make an order for costs under new section 400A (explained below) if satisfied that the applicant’s failure caused the other party to the matter to incur costs.
165. New subsection 399A(2) provides that the power to dismiss applications is only exercisable on application by an employer.
166. Subsection 399A(3) and Note 1 to subsection 399A(1) make clear that new section 399A is not intended to limit the FWC’s general power to dismiss applications on grounds such as where the application is frivolous or vexatious or has no reasonable prospects of success under section 587. Similarly, item 3 inserts a note to subsection 587(1) to highlight the FWC’s power to dismiss an unfair dismissal application under new section 399A. 167. Item 1 of Schedule 11 inserts a new Schedule 3 into the FW Act. Item 11 of Schedule 3 provides for these amendments to apply in relation to dismissals that take effect after the commencement of this Part.”
In Ian Kenneth Lockyear v Graeme Cox[1] the Full Bench observed that the power to dismiss applications is to be exercised cautiously and in this regard made reference to the following observations of the Full Bench in John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station[2]:
“The Courts have long held that the power to dismiss a substantive application should only be exercised cautiously and sparingly, a fortiori where, as here, the appellant has sought orders for relief for his alleged unfair dismissal. This is so because it results 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. In short, the application is dismissed before an applicant has had his/her ‘day in court’, or as the appellant pleaded, he just wanted his case heard[3].”
The Full Bench in Ian Kenneth Lockyear v Graeme Cox proceeded to make the following findings:[4]
“[57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:
1.An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. 14 Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.
2.The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.
3.The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.
4.In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.
5. A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.
[58] In most cases, it is not until these steps have been observed that the Commission is in a position to determine the s.399A application before it. It is worth reiterating that a cautious approach should be taken to dismissing a substantive application for relief.”
As noted earlier in this decision, the Respondent has made an application pursuant to s.399A of the Act. I decided to waive compliance with the Rules regarding the form of the s.399A application pursuant to s.586 of the Act and accepted the email application. On 11 April 2024 I wrote to the Applicant setting out the grounds for the application, the relevant provisions and directed the Applicant to respond to it by 18 April 2024. The email explained to the Applicant that if he did not address the s.399A application by this time, the Commission may proceed to deal with the s.399A application on the material before it and this may result in the dismissal of the claim for unfair dismissal remedy.
The Applicant did not comply with the Commission’s directions to respond to the s.399A application and did not otherwise make contact with my Chambers.
I am satisfied that the relevant steps of the process outlined in Ian Kenneth Lockyear v Graeme Cox[5] have been satisfied. The Applicant has failed to attend the mention and directions hearing relating to his application without providing prior advice, has not provided reasons for non-attendance and has not responded to the s.399A application.
I find that the Applicant has unreasonably failed to attend a hearing conducted by the Commission in relation to his application and has failed to comply with a direction of the Commission relating to the application.
The Applicant’s application is dismissed pursuant to s.399A of the Act. An order to this effect will be issued in conjunction with this decision.
COMMISSIONER
[1] [2021] FWCFB 875.
[2] [2019] FWCFB 2925 at [31].
[3] Also see General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125; Micheletto v Korowa Anglican Girls’ School[2003] AIRC 1391 [PR940392].
[4] [2021] FWCFB 875 at [57].
[5] [2021] FWCFB 875 at [57].
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