Timothy Michael Rose v Inchcape Australia Limited

[2023] FWC 909

[2023] FWC 909

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Timothy Michael Rose
v

Inchcape Australia Limited

(U2023/950)

DEPUTY PRESIDENT DEAN CANBERRA, 20 APRIL 2023

Application for an unfair dismissal remedy – non-compliance with directions – application dismissed.

1. Mr Rose made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009.

1. His application was made outside the 21 day time limit allowed by the Act, and accordingly his application cannot proceed unless the Commission is satisfied that there are exceptional circumstances warranting an extension of time.

1. The history of this application was summarised in an email to Mr Rose on 6 April 2023 and is in the following terms:

Dear Mr Rose

U2023/950 - Rose v Inchcape Australia Limited

The Deputy President notes your non-appearance at the hearing listed for 11.30am yesterday, despite our confirmation the day earlier by email that the hearing was to proceed. The Deputy President also notes that we received an email from you less than one hour before the scheduled start time of the hearing yesterday indicating you would not be attending based on a medical certificate indicating you were unfit for work. The medical certificate does not indicate you are unable to participate in these proceedings.

As you know, your application for an unfair dismissal remedy was filed outside the 21 day time limit and cannot proceed unless the Commission decides that there are exceptional circumstances warranting an extension for you.

You have been provided with many opportunities to explain why you consider your circumstances are exceptional, such as to warrant an extension of time. In failing to explain why you consider your circumstances to be exceptional, you have disregarded directions that the Commission has issued, and with which you were required to comply, including as follows:

a.On 17 February you were directed to explain why your circumstances were exceptional by 22 February, to which you responded indicating you did not consider your application to be late.

b.On 23 February you were asked to explain why you did not file the requested information and were asked to do so by 24 February. You did not do so.

c.On 1 March you were again asked to provide this explanation and did not do so. You did, however, state you had not complied with the direction due to an unforeseen medical emergency.

d.On 3 March a Notice of Listing and Directions were sent to parties. You were directed to file your materials by 10 March and attend the jurisdiction hearing on 21 March. You did not file your material in accordance with the Directions.

e.On 13 March you were issued with a further direction, this time to file your material by 14 March. On the same day you requested clarification about what you were required to do. The response provided to you included the list of matters the Commission must take into account (s394(3)) when determining whether there are exceptional circumstances, and again advised you that the hearing scheduled for 21 March was to deal with this issue only. You were also advised that, if you wished to seek and extension of time to comply with the directions, you needed to write to our Chambers and provide reasons as to why the Deputy President should provide you with further time. You did not do so.

f.On 16 March you were again directed to provide your material on that day but did not do so. On this date, the Respondent requested that your application be dismissed because of your repeated failure to comply with the directions issued by the Commission.

g.On 17 March we advised you that the hearing that had been listed on 21 March to determine whether to extend time for you would be changed to a hearing to determine the Respondent’s request that your application be dismissed for failure to comply with directions of the Commission.

h.On 19 March you requested that the hearing be moved to a later date because of your health issues, and you provided a medical certificate indicating you had a medical condition and you were in hospital on 20 and 21 February, and that you had been recovering.

i.On 20 March you were advised that you were still required to attend the hearing listed for the following day, however at 5.36pm that day you produced a further medical certificate indicating you were unfit to work from 15 to 22 March inclusive. The hearing was then relisted for 5 April.

j.On 3 April you provided another medical certificate indicating you were unfit for work until 12 April. You also advised the Commission you would not attend the scheduled hearing and asked for an adjournment of around 1 month. Again, this certificate did not indicate you were unable to participate in these proceedings.

The hearing had to be cancelled at short notice and at inconvenience to both the Commission and the Respondent.

Mr Rose, the Deputy President will give you one final opportunity to file material addressing both the Respondent’s request to dismiss your application, and whether the Commission should extend time for you. You are DIRECTED to file any witness statements, outline of submissions and any other evidentiary material you wish to rely on by 4pm on Friday 14 April. If you comply with this direction, a hearing will be scheduled. If you do not comply then your application will be dismissed at this time without further notice to you.

Mr Almond, the Deputy President will not make further directions at this stage requiring the Respondent to do anything”.

1. As noted above, on 16 March 2023 the Respondent wrote to the Commission and Mr Rose, seeking an order pursuant to s.399A of the Act to dismiss this application because of the failure of Mr Rose to comply with directions of the Commission on multiple occasions.

1. Section 399A of the Act relevantly 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.

…

(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.”

Consideration

1. Based on the chronology of events set out earlier, I am satisfied that Mr Rose has failed to comply, on multiple occasions, with a direction of the Commission relating to his application.

1. I am satisfied that the failure to comply is unreasonable given the many opportunities, over a period of almost seven weeks, afforded to Mr Rose to provide the material requested of him.

1. Accordingly, I have decided to exercise my discretion to dismiss Mr Rose’s application pursuant to s.399A. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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