Timothy Mansikka v Department of Veterans' Affairs
[2022] FWC 826
| [2022] FWC 826 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Timothy Mansikka
v
Department Of Veterans’ Affairs
(U2021/9451)
| COMMISSIONER HUNT | BRISBANE, 8 APRIL 2022 |
Application for an unfair dismissal remedy – failure to attend conference conducted by the FWC – application to dismiss – application dismissed pursuant to s.399A.
On 21 October 2021, Mr Timothy Mansikka made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009, alleging he was dismissed from his employment with Department of Veterans’ Affairs (the Respondent) and that the dismissal was harsh, unjust or unreasonable.
On 5 November 2021, the Respondent filed a Form F3 Employer Response to the application. The Respondent objected to the application on the jurisdictional grounds that Mr Mansikka was not an employee of the Respondent and was not dismissed by the Respondent. In its Form F3, the Respondent advised that Mr Mansikka was engaged through a series of work orders agreed between the Respondent and a recruitment agency, McArthur Recruitment Services.
The matter was listed for conciliation on 23 November 2021 before a Commission staff member. On 22 November 2021, Mr Mansikka emailed the Commission advising that he was unable to attend the conciliation as he had a job interview at the same time. Mr Mansikka sought an adjournment and the conciliation listed on 23 November 2021 was cancelled.
An amended Notice of Listing was sent to the parties on 23 November 2021, listing the matter for conciliation on 6 December 2021. Mr Mansikka failed to attend the conciliation despite numerous attempts by the conciliator to contact him. A letter was sent the same day informing him to contact the conciliator within two days if he requested a further conciliation.
Mr Mansikka did not respond within two working days as requested, and the matter was allocated to the Chambers of Vice President Catanzariti on 9 December 2021.
On 9 December 2021, the Respondent filed a Form F1 Application seeking to dismiss Mr Mansikka’s unfair dismissal application pursuant to the Commission’s powers under ss.399A(1)(a) and 587(1)(b) of the Act.
Correspondence was sent to Mr Mansikka, by email, on 17 December 2021, which stipulated as follows:
“Dear Mr Mansikka,
U2021/9451 – Mansikka v Department of Veterans’ Affairs
Your unfair dismissal case was scheduled for telephone conciliation on 6 December 2021. You did not participate. Since then, we have tried to contact you about your case, but we have not heard back from you.
Do you want to continue your case?
You must tell us if you want to continue your unfair dismissal case. You must do this by 4:00 pm on 23 December 2021. Email us at […] or call us on […]. This is a Direction. A Direction is an instruction you must follow.
· If you tell us you want to continue, your case will go to the next stage. We will either schedule a hearing or conference to hear more about the application, or write to you if there are other issues with your case (jurisdictional objections) that we need to deal with first.
· If you tell us you do not want to continue, we will close the case. You do not need to do anything else. If you paid an application fee, we will refund it.
If you do not contact us, it is very likely we will close your case.
We may either dismiss your case without further notice to you, or schedule a non-compliance hearing, if you do not contact us by 4:00 pm on 23 December 2021. During this hearing, an application may be made to dismiss your case. This means your case may be closed and we will not take any further action.
…”
Mr Mansikka did not respond to the correspondence by 23 December 2021. A further email was sent advising that if a response was not received by 4 January 2022, his application may be dismissed without further notice to Mr Mansikka.
On 2 January 2022, Mr Mansikka responded to the correspondence, advising as follows:
“Good Afternoon,
Apologies for the delayed response, I’ve recently upgraded my phone your emails have been somehow redirected to my spam inbox.
I’m still interested in continuing my claim against The Department of Veterans’ Affairs. I was hoping to meet with my managers to resolve this claim, I attempted to resolve this matter with them directly while I was still employed with them however they would not answer my phone calls or emails.
If the they insist on engaging lawyers to represent them at this initial meeting I will need additional time to prepare a response.
Kind regards,
Tim”
On 5 January 2022, the application was allocated to me. Directions were issued on this date requiring Mr Mansikka to file material by no later than 11 January 2022, including addressing these issues:
(a) why it is he did not participate in the staff conciliation conference on 6 December 2021 and provide evidence of any attempts to return phone calls made by the staff conciliator; and
(b) provide details as to why the Applicant says he was employed by the Respondent. Does the Applicant have any evidence of ever being paid by the Respondent? Was the Applicant paid by McArthur Recruitment Services? Was the Applicant’s superannuation account credited by McArthur Recruitment Services? Did the Applicant receive payment summaries from McArthur Recruitment Services? Did McArthur Recruitment Services deduct taxation from the Applicant’s wages? Did McArthur Recruitment Services cover the Applicant for workers’ compensation? The Applicant must provide any written contract between himself and McArthur Recruitment Services.
The matter was listed for telephone conference before me on 19 January 2022.
No response was received from Mr Mansikka to the above Direction requiring him to file materials by 11 January 2022. On 12 January 2022, I afforded an extension to Mr Mansikka to file his material by 13 January 2022. I informed the parties that if Mr Mansikka did not respond by that time, the application by the Respondent to dismiss Mr Mansikka’s application may be dealt with on the papers, with a decision made and issued.
Mr Mansikka did not file any material, as directed. On 17 January 2022, I informed the parties that the Respondent’s applications will be determined on the papers.
Relevant legislation
Section 399A of the Act is a specific provision in relation to unfair dismissal applications which also provides for the dismissal of applications in circumstances where the applicant has not acted to prosecute their case. Section 399A states:
“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.”
Section 587 of the Act provides:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
Respondent’s submissions
The Respondent submitted that Mr Mansikka has unreasonably failed to attend the conciliation conference scheduled for 6 December 2021 because:
(a)at no point prior to, or following, the scheduled conciliation, has he provided the Commission or the Respondent with a reason explaining his failure;
(b)it is clear that the phone number dialled by the conciliator was that of Mr Mansikka’s given the voicemail message; and
(c)Mr Mansikka previously sought to adjourn the conciliation, suggesting he is aware of the requirement to advise the Commission should he wish to reschedule.
For these reasons, the Respondent submitted that the Commission should exercise its power under s.399A(1)(a) of the Act and dismiss the unfair dismissal application. Further, the Respondent noted that the Act permits the Commission to dismiss an unfair dismissal application if, relevantly Mr Mansikka’s application is “frivolous or vexatious”.
The Respondent noted that these terms have been the subject to significant judicial consideration with it being broadly accepted that proceedings are frivolous and/or vexatious if they are instituted with the intention of annoying or embarrassing the person against who they are brought; if they are brought for collateral purposes; or if they are so obviously untenable or manifestly groundless as to be utterly hopeless.[1]
The Respondent submitted that Mr Mansikka’s conduct since making the unfair dismissal application evidences the fact that it was his intention to commence frivolous and/or vexatious proceedings against the Respondent in response to the decision to cease his engagement as a contractor. This is because:
(a)Mr Mansikka was not at any time an employee of the Respondent and his application has no prospect of success;
(b)in his Form F2, Mr Mansikka has not set out what remedy he is seeking, suggesting he is not seeking any form of compensation;
(c)Mr Mansikka sought to adjourn the initial conciliation scheduled for 23 November 2021 with no explanation to the Department of the reason. The Department submits that his subsequent conduct makes it clear that this was in order to delay and frustrate the proceedings;
(d)Mr Mansikka failed to attend the conciliation rescheduled as his request; and
(e)at no point prior to, or following, the scheduled conciliation, has he provided the Commission or the Respondent with a reason explaining his failure.
For these reasons, the Respondent submitted that the Commission should exercise its power under s.587(1)(b) of the Act and dismiss the unfair dismissal application.
The Respondent noted that the submissions in this application for an order dismissing the unfair dismissal application under ss.399A and 587 of the Act are argued by the Respondent cumulatively and in the alternative. Finally, given it is the Respondent’s submission that Mr Mansikka’s conduct since making the unfair dismissal application has been in all the circumstances unreasonable, the Respondent reserves its right to seek an order for costs incurred by the Respondent as a result of this unreasonable conduct.
Consideration
I note that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so.[2] Such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form of relief from a beneficial statutory provision.[3]
The power to dismiss an application if the non-attendance was unreasonable is discretionary.
Mr Mansikka failed to attend the Conciliation listed on 6 December 2021, advising on 2 January 2022 that he had not been receiving emails from the Commission as they had been going to his spam email folder. The explanation is implausible, suggesting that Mr Mansikka, involved in litigation before the Commission, had not checked his spam email folder until 2 January 2022. The amended notice of listing was issued on 23 November 2021, advising of the relisted Conciliation date.
I am satisfied that Mr Mansikka has unreasonably failed to attend a conference conducted by the Commission in relation to the application. On the application of the Respondent and in the exercise of my discretion under section 399A of the Act I have decided to dismiss Mr Mansikka’s application.
An Order to this effect will be issued with this decision.
Having granted the application made by the Respondent under s.399A(1)(a), it is not necessary to determine the application made by the Respondent pursuant to s.587 of the Act.
COMMISSIONER
[1] See, for example Attorney-General v Wentworth (1988) 14 NSWLR 481, 491.
[2] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].
[3] Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].
Printed by authority of the Commonwealth Government Printer
<PR740238>
0
0
0