Timothy Phillips v Ertech Pty Ltd
[2024] FWC 2397
•11 SEPTEMBER 2024
[2024] FWC 2397
The attached document replaces the document previously issued with the above code on 11 September 2024.
Included reference to accompanying order PR779159.
Associate to Deputy President Beaumont.
Dated 11 September 2024.
| [2024] FWC 2397 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Timothy Phillips
v
Ertech Pty Ltd
(U2024/6948)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 11 SEPTEMBER 2024 |
Application for an unfair dismissal remedy
Issue and outcome
On 18 June 2024, the Commission received an application from Mr Timothy Phillips (the Applicant) asserting he had been unfairly dismissed by Ertech Pty Ltd (the Respondent). Due to the Applicant’s non-compliance with certain directions, it proved necessary to consider the dismissal of the Applicant’s application under s 587 of the Act.
A hearing was held on 6 September 2024, to determine whether the Applicant’s unfair dismissal application should be dismissed for that non-compliance. Whilst the Applicant pressed that he wished to proceed to a hearing on the merits, I considered that the Applicant’s non-compliance with the certain directions warranted the dismissal of his application.[1]
My detailed reasons follow.
Background
The application was referred to my Chambers on 29 July 2024 and on 30 July 2024, directions were issued for the parties to respond to questions concerning the programming of the matter (First Directions). Those responses were due by Friday, 2 August 2024.
On 2 August 2024, the Applicant’s representative, Mr Cross of ‘Dismissed Unfairly’ responded to the First Directions on behalf of the Applicant. The Respondent similarly complied with the First Directions.
On 5 August 2024, directions were issued to the parties which required the Applicant to file his materials by 1600hrs on Monday, 19 August 2024 (Second Directions). The email containing the Second Directions outlined the date of a conciliation conference, the listing for a two-day hearing and the following:
Compliance with the above directions is essential. The parties are put on notice that there may be adverse consequences for a party should they fail to comply with the above directions. The Deputy President reminds the parties of the following sections of the Act:
Sections 400A, 401, and 611 – costs sections
Section 399A; allowing the Commission, upon application, to dismiss an application due to non-compliance with a direction of the Commission, or for failing to attend a hearing/conference/mention.
Section 587 – dismissing applications.
On Thursday, 15 August 2024, a member assisted conciliation conference was held before Commissioner Platt. The matter remained unresolved.
On the day that the Applicant was required to submit his materials, that is on Monday, 19 August 2024, the Applicant’s Representative filed a Form F54 notice that he was no longer acting for the Applicant. Subsequently, the Applicant emailed Chambers on the Monday, requesting more time to submit documents as he was in the process of seeking legal representation. At 4:10PM on Monday, 19 August 2024, amended directions were issued allowing the Applicant until Monday, 26 August 2024, to file his materials (Third Directions).
The Applicant did not comply with the Third Directions and at 09:34AM on 27 August 2024, the Respondent enquired with Chambers whether the Applicant had filed any materials. At 10:13AM that day, Chambers sent a non-compliance email to the parties and telephoned the Applicant to inform him of his non-compliance. The Applicant responded to the telephone call advising that he was trying to get a lawyer and he was only left with two days to file materials. The Applicant confirmed he had received the non-compliance email and would respond accordingly. An email was received from the Applicant at 10:25AM on 27 August 2024, noting that he was unsure how to proceed without legal representation:
Im not sure as to how i proceed from here with no legal representation and such little time, i am not confident that i have the skills or knowledge to proceed representing myself and would kindly ask that the chambers grant me a lengthly adjournment in order to find myself legal representation to put together required documents and submissions.. Thanks, Tim
At 3:49PM on Tuesday, 27 August 2024, the Commission issued to the parties correspondence that directed the Applicant to file with Chambers and serve on the Respondent material upon which he wished to rely upon concerning the potential dismissal of his application for non-compliance with the directions (Dismissal Directions). Further the same correspondence stated:
Dear Parties
We refer to matter no. U2024/6948 - Timothy Phillips v Ertech Pty Ltd, our email earlier this morning in respect of the Applicant’s non-compliance with the Amended Directions issued on Monday, 19 August 2024, and to the Applicant’s response to the same.
We observe that the Amended Directions that were issued on 19 August 2024, were issued because the Applicant’s representative had withdrawn, and the Applicant needed more time to receive advice and prepare his materials. The Amended Directions afforded him the time to obtain advice should he chose to do so, but importantly provided him with more time to prepare his materials in the absence of advice. Further, it is observed that the Applicant participated in a Member Assisted Conciliation conference with Commissioner Platt on 15 August 2024.
It is noted, the Fair Work Commission is familiar with dealing with self-represented parties, hence why resources have been provided to both parties to assist them with their preparation for hearing.
An application for adjournment or extension of time is to be decided in the context of the Fair Work Act 2009 (Cth). Section 577 of the Act provides that the Commission must perform its functions and exercise its powers in a manner that is fair and just, and such that it is quick, informal and avoids unnecessary technicalities. The Commission is obliged to perform its functions in the manner so described. Whilst the Commission does have a discretion in relation to the adjournment of an application or an extension to the directions, it must be exercised in the context of the statutory scheme. There is a statutory presumption that matters before the Commission should be resolved as quickly as practicable. In determining whether to grant an extension of time or an adjournment, the Commission is able to consider the impact of granting such request on the programming of the application and other matters before the Commission.
An indefinite extension of time or adjournment will not be provided for the abovementioned reasons. The Applicant has already been provided with an extension of time in which to file materials. The Applicant has now been non-compliant with the Amended Directions and did not notify Chambers in advance that he would be non-compliant with the Amended Directions. A response from the Applicant concerning the non-compliance was not forthcoming until contacted by Chambers.
The matter will now be programmed for the dismissal of the Applicant’s application under s 587 of the Act…
On 31 August 2024, in response to the Dismissal Directions, the Applicant emailed Chambers attaching to his correspondence his Form F2, letter of allegation, a letter of 5 June 2024 titled ‘Your Employment’, a letter of termination and what appears to be screenshots as between the Applicant and his former representative, and a ‘witness statement’ of Mr Ben Robson - the contents of which advise that Mr Robson is happy to help the Applicant with his unfair dismissal and that the Applicant did nothing wrong, amongst other things. In short, the Applicant submitted:
a) that he was aware that the documents were overdue, but he had been using an agent for the unfair dismissal application who was unable to represent him at hearing and had left him with little time to find another legal representative;
b) the Applicant had an appointment with Legal Aid on 23 August 2024 who advised him that the organisation was unable to prepare any documents;
c) he had no knowledge of how to do this (presumedly prepare documents for hearing) or any expertise in this area at all and did not consider himself capable of such task as he was not a lawyer;
d) the Applicant did not have funds to pay for a lawyer to prepare materials on his behalf; and
e) the Applicant considered that the statements previously used in the conciliation meetings along with the signed witness statement from Ben Robson who is willing to appear and assist on the day, if need be, pretty much explained the situation and outlined why he believed his termination of employment by way of misconduct was unjust and unfair.
Legal framework
The Commission has power to dismiss an unfair dismissal application on its own initiative. It is accepted that there is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at her or his initiative.[2]
Of course, in these types of applications, one is always guided by the premise that the power to dismiss a substantive application should only be exercised cautiously and sparingly, particularly where, as here, the Applicant has sought orders for relief for his alleged unfair dismissal.[3] That cautious approach is said to be warranted because ordering the dismissal of an application would result ‘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’.[4]
The Commission’s powers to dismiss an application are set out generally at s 587 of the Act. That section states:
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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.
Whenever exercising the power to dismiss an application under s 587, s 578 is relevant. It provides:
578 Matters the FWC must take into account in performing functions etc.
In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.
Consideration
On the day that the Applicant was required to comply with the Second Directions, the Applicant emailed Chambers requesting more time to submit the documents. Whilst appreciative that the Applicant’s representative had, on that same day notified he was no longer acting for the Applicant, there appears to be no plausible explanation as to why the Applicant left it until the day his materials were due to be filed to advise the Commission of his circumstances. The Applicant had been placed on notice on 5 August 2024 that his materials were required by no later than 19 August 2024. Notwithstanding, given the withdrawal of the Applicant’s representative, the Commission granted the Applicant additional time in which to file his materials (see the Third Directions), with the Applicant’s materials being due by Monday, 26 August 2024.
The Applicant states he attended an appointment with Legal Aid on Friday, 23 August 2024. The Applicant expressed that Legal Aid advised that they could not prepare his documents and the Applicant himself had no knowledge of how to do this and considered himself incapable of the task. The Applicant further notes that he requested assistance from ‘Circle Green’ and was declined. The Respondent submits that the Applicant was therefore aware that he would not (or was not intending to) comply with the Amended Directions as early as 23 August 2024, when he was unable to secure free legal representation but chose not to:
a) notify the Commission or the Respondent of this;
b) seek a further extension of the Amended Directions prior to the time for compliance to enable him to prepare his material; or
c) take steps to attempt to comply with the Amended Directions, whether as an unrepresented party or to seek to engage alternative representatives, until he was prompted by the Commission.
On the evening of 31 August 2024, the Applicant emailed Chambers indicating that he was aware that his documents as required by the Amended Directions were overdue and attached, essentially, the same documents that had already been filed and which related to the substantive application, and not to the issue of dismissal of the matter under s 587 of the Act.
The Applicant indicated that he considered the documents filed (that is, the Form F2 and attachments and a copy of an email from Mr Ben Robson to the Applicant indicating that Mr Robson would be prepared to be a witness in the matter) to be sufficient. The Applicant did not otherwise file any written submissions or material (including any actual witness statements) in compliance with the Dismissal Directions.
The Applicant continues to be in non-compliance with the Third Directions and has not yet filed any material with the Commission as directed by the Third Directions in relation to his substantive application. The Respondent observes that the Applicant’s emails to Chambers to date indicate that the Applicant does not intend to file any material in compliance with the Commission’s directions, on the basis that he considers he is incapable of doing so and/or has already done so (by resubmitting the same documents which had previously been filed with the original Form F2 application).
It is not uncommon for parties in the Commission to be self-represented and the Commission has prepared resources to assist self-represented parties. In this case, the Applicant has had access to resources prepared by the Commission to assist him to prepare his materials for hearing since 5 August 2024, when the Commission sent those resources to him (and to the Respondent). The resources provided include links to templates for use in preparing submissions and witness statements, YouTube videos regarding preparing documents and attending hearings and the Commission’s Fair Hearings practice note and provision of a PDF copy of the Commission’s Unfair Dismissals Benchbook.
Whilst the Applicant now, in the context of facing the dismissal of his application, submits that reliance should be placed on his initiating application and the documents he filed at that time and those that were again submitted on 31 August 2024, it was open to the Applicant to have submitted that position on 19 August 2024, but he did not do so. Instead, he sought an extension of time in which to file his materials and thereafter failed to comply with the adjusted deadline of 26 August 2024.
Having regard to the circumstances of this matter, I am satisfied that the application has no reasonable prospects of success. Whilst aware that the Applicant has encountered difficulties in preparing his materials and whilst sympathetic to his circumstances, it remains that his circumstances are not dissimilar to many applicants who are faced with preparing for a hearing of their unfair dismissal application, whilst attempting to secure work, attending to family commitments and dealing with the stress that accompanies the loss of a job. Alive to the issue that for some parties there will be literacy challenges that warrant a modified approach being adopted regarding the receipt of written materials, the Applicant’s submissions at hearing, did not disclose that the Applicant is absent literacy skills. At all times, it was open to the Applicant to have notified the Commission in respect of the Second Directions and the Third Directions, that he was unable to comply with those directions prior to the day when the Applicant’s material fell due to be filed.
Conclusion
It follows that in the circumstances of this matter, I consider the Applicant’s application has no reasonable prospects of success and, therefore, his application is dismissed pursuant to s 587(1)(c).
An Order[5] to this effect is issued concurrently.
DEPUTY PRESIDENT
Appearances:
Mr T. Phillips for the Applicant
Mr N. Fitzgerald for the Respondent
Hearing details:
By Telephone 6 September 2024
[1] PR779159.
[2] Viavattene v Health Care Australia[2013] FWCFB 2532, [39].
[3] Cole v Roy Hill Station Pty Ltd [2019] FWCFB 2925, [31].
[4] Ibid.
[5] INSERT ORDER NUMBER.
Printed by authority of the Commonwealth Government Printer
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