Timothy Ryan v Cl Commodities Pty Ltd
[2023] FWC 2749
•20 OCTOBER 2023
| [2023] FWC 2749 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Timothy Ryan
v
CL Commodities Pty Ltd
(U2023/5629)
| COMMISSIONER MATHESON | SYDNEY, 20 OCTOBER 2023 |
Application for an unfair dismissal remedy – s.399A – failure to attend hearing held by the Commission – s.587 – failure to prosecute case in a reasonable manner
On 28 June 2023, Mr Timothy Ryan (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 CL Commodities Pty Ltd (Respondent). Both the Applicant and Respondent are self-represented parties.
Attempted staff conciliation
On 6 July 2023 the matter was listed for conciliation by a member of the Commission’s staff at 9.15am on 3 August 2023. On 7 July 2023, the Applicant requested legal advice and a member of the Commission’s staff explained how the Applicant could access legal advice via the Commission’s Workplace Advice Service.
At 7.25am on 3 August 2023, the morning of the scheduled conciliation, the Applicant emailed the Commission indicating he had tried to seek legal aid and a person to represent him at the conciliation conference, that he didn’t think this was going to be possible and querying if it would be possible to have a support person. A member of the Commission’s staff contacted the Applicant that morning and the Applicant indicated he was in parole and on probation until 2.30pm and could not participate in the conciliation conference that day. The conference could not proceed.
The Commission subsequently sent the Applicant correspondence at 9.50am on 3 August 2023 indicating that if the Applicant wanted the matter to proceed via a further conciliation, then the Applicant needed to email the Commission. The correspondence also requested details as to why the Applicant was unable to attend/participate in the conciliation conference. At 10.18am the Applicant responded via email indicating he did want to continue with his application, the only days he had available were Monday and Friday, that he was busy with parole commitments and had not had a chance to try to get representation. The Applicant also indicated he had mental health concerns. At 10.21am the Applicant sent a further email explaining that he was unable to attend the conciliation due to having a probation and parole appointment.
The initial mention and directions hearing
The matter was allocated to my Chambers on 16 August 2023. On 24 August 2023 the matter was listed for a mention and directions hearing to be held at 4pm on Monday 11 September 2023 via telephone. On 24 August 2023 the Applicant emailed Chambers in response stating “Thank you for the email will talk to you guys then thankyou.”
The Applicant did not attend the mention and directions hearing on 11 September 2023 and when my Chambers made calls to the Applicant in an attempt to dial him in, he did not answer. Voicemail messages were left requesting that the Applicant dial into the call and providing the telephone number for my Chambers. The Applicant did not provide prior notice to Chambers regarding his inability to attend the mention and directions hearing.
My Chambers emailed the Applicant at 4.48pm on 11 September 2023 seeking an explanation of the reasons for non-attendance. A notice of listing for arbitration and directions in the matter were issued at 4.53pm pending consideration of the reasons for non-attendance. The notice of listing included links to Commission resources including templates for the Applicant’s Outline of Argument and Statement(s) of Evidence. The notice of listing also included information providing avenues for legal assistance and explained what parties needed to do if they wished to seek an adjournment.
At 4.53pm the Applicant emailed Chambers stating:
“I have been so sick the past few weeks unfortunately when you tried to call I was attending the bathroom . As I spewing and couldn't stay away from the bathroom sorry”
The Applicant sent an email with a similar explanation at 4.58pm. At 5.02pm after the notice of listing for arbitration and directions in the matter were issued the Applicant emailed the Commission stating:
“Can I call to compete this form with someone . I struggle to fill in forms at the moment, my mental health has taken a big hit since loosing my employment. So any help would be appreciated”
Attempted case management conference
At 5.34pm on 11 September 2023 my Chambers emailed the Applicant, directing him to some avenues via which he could find more information and assistance if seeking to obtain legal advice, explaining that the directions that had been set down remain in place and indicating that the matter would be relisted ay 4pm on 14 September 2023 for a case management hearing so I could explain the process to the parties. A notice of listing for a case management hearing was sent at 5.35pm.
On 13 September 2023 the Applicant emailed my Chambers in relation to the listing for the case management conference stating:
“Received, thank you. But Wednesday and Thursday are no good for me as I have other commitments sorry.”
On 13 September 2023 at 9.39am, my Chambers responded indicating that the case management conference would be relisted to 4pm on Tuesday 19 September 2023 to accommodate the Applicant.
The Applicant did not attend the case management conference on 19 September 2023 and did not provide prior notice of his inability to attend.
My Chambers made multiple attempts to contact the Applicant and left three voicemail messages between 4pm and 4.15pm requesting that he dial into the call and providing the telephone number for my Chambers however the Applicant did not answer or call back. The Respondent, who did attend the case management conference, made an oral application that the matter be dismissed on the basis of the Applicant’s non-attendance. I accepted this as an application pursuant to s.399A of the Act, waiving compliance with the procedural Rules pursuant to s.586 of the Act and indicated that I would send correspondence to the Applicant seeking an explanation for his non-attendance and then consider the application to dismiss.
Request for evidence of non-attendance at case management conference
At 4.22pm on 19 September 2023, following the scheduled time of the case management conference, the Applicant emailed my Chambers stating:
“I have had some major problems . I was arrested yesterday for a breech of avo so today I have been seeking legal advice on this so I'm so sorry I have missed today's call .. I never thought what has happened would of happened . Once again sorry to your staff and the staff at cl James and Robert. I don't want to muck people around so I'm sorry for this . Just I really need this legal advice for this case about to go to court . So sorry again .”
At 4.23pm the Applicant emailed my Chambers again stating:
“Can provide proof if needed”.
At 5.05pm on 19 September 2023 my Chambers sent an email to the Applicant as follows:
“Dear Mr Ryan,
U2023/5629 – Toothy Ryan v CL Commodities Pty Ltd
I refer to the above matter and to your non-attendance at today’s Case Management Conference listed for 4:00pm (Notice of Listing attached).
It is noted that the conference was relisted following your previous non-attendance at the Mention/Directions Hearing on 11 September 2023 for reasons which you explained later that day as being because you were sick and when the Commission tried to call you were attending the bathroom.
The Case Management Conference was re-listed for Thursday, 14 September 2023 and you advised you were not available on Wednesdays or Thursdays. As such the Case Management Conference was re-listed for today, 19 September 2023, being a Tuesday.
You did not attend.The Commission sought to contact you during the Case Management Conference listed for 4:00pm, made four phone calls and left three voicemails between 4:00pm and 4.15pm.
At 4.22pm you emailed the Commission stating:
“I have had some major problems . I was arrested yesterday for a breech of avo so today I have been seeking legal advice on this so I'm so sorry I have missed today's call .. I never thought what has happened would of happened . Once again sorry to your staff and the staff at cl James and Robert. I don't want to muck people around so I'm sorry for this . Just I really need this legal advice for this case about to go to court . So sorry again.”
It is also noted that you did not attend the earlier conciliation conference listed before a member of the Commission’s staff on 3 August 2023.
During the Case Management Conference today the Respondent made an application that the matter be dismissed given your non-attendance on three occasions at a conference or hearing held by the Commission. To avoid further inconvenience, I decided to waive compliance with the Fair Work Rules regarding the form of the s.399A application pursuant to s.586 of the Fair Work Act 2009 (Cth) (Act) and accepted the oral application.
Response to s.399A application sought
The Commissioner directs that by no later than 4:00pm (Sydney time) on Friday, 22 September 2023 you provide further information and evidence regarding the reasons for your non-attendance together with reasons as to why your application should not be dismissed pursuant to s.399A of the Act.
In particular,s.399A of the Act provides:
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.
If you do not provide an explanation by this time, or if the explanation is inadequate, the application may be dismissed pursuant to s.399A of the Act”.
Between 5.10pm and 5.16pm the Applicant sent three emails and while the Applicant did not provide evidence of his reasons for non-attendance indicated that it was hard to attend while in appointments and that he could provide proof.
At 12.26am on 20 September 2023 the Applicant emailed my Chambers querying how he could appeal.
At 9.40am on 20 September my Chambers emailed the Applicant explaining that the email from Chambers sent to him on 19 September 2023 directed him to provide further information and evidence regarding the reasons for his non-attendance at the case management conference together with reasons as to why his application should not be dismissed pursuant to s.399A of the Act. The email explained that no decision had been made and reminded the Applicant that pending determination of the s.399A application the directions of 11 September 2023 remained in place.
At 9.44am on 20 September 2023 the Applicant emailed my Chambers stating:
“What kind of evidence do you want . All I now have is my charge sheet as I had to give all my paper work to the lawyer yesterday . I was telling them I had your call coming yesterday but unfortunately the lawyers was to busy going through my paperwork and trying to come up with a plane . I am really sorry to have missed calls yesterday . Things for me lately have been so hectic . I've had things hacked I'm struggling with mental health so I'm terribly sorry”
At 9.55am the Applicant sent a further email to my Chambers stating:
“I spoke to a staff member on on the 3rd and told them why they understood and that's when I was told about yesterday's one . I was all for taking the call but as I was arrested and seeking legal advice at the time of the phone call it was hard to have answered your calls . I did try to call the number back several times but it would ether call out or I'd get beeps straight away it was like it was going straight to message bank .
Please confirm the information you require and I'll try and get it all through to you today”
The Commission does not have any record of the Applicant attempting to call Chambers during the scheduled case management conference and the Applicant did not join the case management conference via the link provided in the notice of listing.
Attempts to hear from the Applicant about why his application should not be dismissed
On 21 September 2023 at 8.06am my Chambers emailed the Applicant explaining that what evidence the Applicant wished to provide regarding his reasons for non-attendance was a matter for him however noting the Applicant had indicated he had a copy of his charge sheet he may wish to provide this along with other evidence that he was seeking legal advice at the time of the conference that prevented his attendance.
The email also advised the Applicant that he would be provided with an opportunity to be heard in relation to the s.399A application and that the matter would be listed for hearing at 9am on 25 September 2023 for this purpose. A notice of listing for this date was sent at 1.21pm on 21 September 2023.
At 1.26pm the Applicant emailed my Chambers stating:
“The 25th will not work for me sorry. I have so much on that day already.”
At 1.29pm the Applicant sent a further email to my Chambers stating:
“The next available day I have isn't tell next month now sorry between my parole appointments my merit appointments counsellors doctors and trying to meet obligations for centrlink things are really hectic for me right now. I do hope you understand and we can work together to organise something to suit. Sorry for any inconvenience but I'm really seeking help to get my mental health back on track as loosing my employment put me in a very dark spot in life.”
Given the difficulties encountered in securing the Applicant’s attendance at a hearing, at 4.14pm on 21 September 2023 following receipt of the Applicant’s emails my Chambers emailed the parties enquiring as to whether they would be content for the s.399A application to be determined on the papers. The Applicant emailed my Chambers in response at 4.17pm, 4.18pm and 4.21pm indicating he did not understand, wanted to speak to someone and wanted to know what to lodge with the Commission. My Chambers attempted to call the Applicant at 4.24pm, left a voicemail and also sent a follow-up email clarifying the contact number for Chambers.
At 4.33pm on 21 September 2023 the Applicant called my Chambers indicating he wanted to pursue his matter, had many appointments, would not be able to make the hearing on 25 September 2023 and had not been able to speak to a legal representative about his case yet. The Applicant sought advice on what he should file with the Commission and indicated that he was not comfortable speaking in front of the Respondent. The Applicant also indicated there were times where he had not read Chambers’ emails and this is why he had not advised in advance when he could not attend a listing. I do not accept this was the case for the mention and directions hearing on 11 September 2023 given the applicant emailed Chambers on 24 August 2023 in response to the notice of listing stating “Thank you for the email will talk to you guys then thankyou.”
At 5.13pm the Applicant emailed Chambers indicating that since losing his job he encountered difficulties financially and with his mental health. The Applicant indicated that he had appointments scheduled on the same day set down for the hearing, being 25 September 2023, but that he would be able to take a call at 10pm during breaks between appointments and did not want to lose the opportunity to have his say.
On the understanding that the reference to “10pm” was intended as a reference to 10am, at 5.47pm on 21 September 2023 my Chambers emailed the parties to advise that the listing would be amended so that the hearing would commence at 10am on 25 September 2023 to accommodate the Applicant’s break between appointments. At 5.48pm the Applicant emailed my Chambers back stating:
“Okay. And just so you know that is the only time I'll be available this week as so much is happening and going on at the moment I'm sorry but do hope you understand.”
The amended notice of listing was sent at 8.16am on 22 September 2023 reflecting the revised start time. At 8.26am on 22 September 2023 the Applicant responded stating:
“So what was the point in doing that email”.
At 8.31am the Applicant again emailed the Commission indicating he did not think he was comfortable to speak in front of the Respondent. At 8.33am the Applicant emailed the Commission again, the contents of that email being the same as the email sent at 5.13pm the previous day and which indicated he would be able to take a call at 10pm during breaks between appointments and did not want to lose the opportunity to have his say.
At 9.58am my Chambers emailed the Applicant stating that his participation in the conference at 10am on 25 September 2023 was required, that it was up to the Applicant as to what he wanted to say in front of the Respondent however the Commissioner considered it was important that he understand what is involved in the arbitration process and how applications at the Commission are dealt with. The email again directed the Applicant to some avenues via which he could find more information and assistance if seeking to obtain legal advice.
At 9.58am and 10.01am the Applicant emailed my Chambers with concerns about the Respondent and his dismissal. At 10.04am the Applicant emailed my Chambers stating:
“I dont really want them to take place in my call that's how uncomfortable they have made me feel towards them. And with my anxiety already through the roof I know this is only going to make it worse for me. Yes to be honest they have made me few scared with some of the things I've heard lately by workers still there and some truck drivers that deliver materials for them.”
The Applicant sent a further email at 10.05am stating:
“I should definitely not be made to feel uncomfortable and a chance of putting myself into an anxiety attack because I feel threatened over my previous boss.”
At 10.40am my Chambers responded clarifying that the matter would initially commence with all parties together and noting there may be an opportunity for the Commissioner to speak to the parties individually if they wish. My Chambers sought confirmation that the Applicant would be attending.
At 10.49am and 11.26pm the Applicant emailed my Chambers indicating he did not want to speak if the Respondent was present.
At 5.30pm my Chambers emailed the Applicant explaining that:
· The Commission is generally required to perform its functions and exercise its powers in a manner that is open and transparent and it conducts proceedings in a manner that is consistent with the principles of open justice.
· The Commissioner would like to explain the processes of the Commission in the context of the application the Applicant had made and considered it important that the Applicant understood what is involved in the arbitration process.
· Out of fairness to both parties and in the interests of transparency, the Commissioner intended to explain this to both parties and seek views on how the application should be dealt with.
· It was a matter for the Applicant as to whether he wished to say anything in front of the Respondent however would need to plead his case and the Respondent would need to have an opportunity to consider his submissions and respond to his case as a matter of procedural fairness.
· While the Commissioner proposed to initially commence the conference with all parties together, there may be an opportunity for the Commissioner to speak to the parties individually if they wish.
At 5.31pm the Applicant emailed my Chambers again indicating that he did not feel comfortable speaking in front of the Respondent.
The Applicant did not attend the hearing at 10am on 25 September 2023. My Chambers attempted to call the Applicant however he did not answer and voicemail messages were left.
Further attempts to engage the Applicant
On 25 September 2023 the Applicant sent emails to the Commission between 12.10pm and 3.22pm. The Applicant raised mental health concerns in the emails.
Out of concern for the Applicant, on 28 September 2023 my Chambers wrote to the Applicant indicating that the Commissioner had arranged for him to again be able to access the services of the Commission’s Workplace Advice Services and providing information as to how the Applicant could access the service. Links to services that persons may access if they have mental health concerns were also provided to the Applicant.
On 3 October 2023 the Applicant responded “What does this mean?”. It was apparent that the Applicant was confused and as such, my Chambers wrote to the Respondent seeking its consent for me to have a teleconference with the Applicant to explain what is involved in the processes of the Commission, what he needed to do to comply with directions and to understand whether he intended to pursue his application. The Respondent emailed Chambers providing consent and stating that it hoped the matter could be resolved and not take up anymore time.
At 3.42am on 4 October 2023 my Chambers wrote to the Applicant explaining that the Commissioner wanted to have a teleconference with him to explain what is involved in the processes of the Commission, what he needed to do to comply with directions and to understand whether he intended to pursue his application. The email noted that while the call would be recorded the Respondent would not be present. The email sought the Applicant’s availability for this purpose.
At 3.52pm and 3.55pm the Applicant sent emails raising concerns about the Respondent and again indicating he did not feel comfortable speaking in front of the Respondent. My Chambers responded at 4.20pm explaining that the Respondent would not be present and directing the Applicant to provide his availability for a call on 5 or 6 October 2023.
The Applicant sent an email at 5.28pm, indicating he could not be available for both 5 and 6 October 2023 and stating “You tell me what date so then I can cancel and swap appointments around”. The Applicant sent a further email to the Commission at 9.38pm providing an account of events surrounding his dismissal and again indicating he did not feel comfortable talking in front of the Respondent.
At 8.26am on 5 October 2023, my Chambers emailed the Applicant stating that a telephone conference with the Commission had been scheduled for 10am on 6 October 2023. The email sought confirmation that the Applicant would be available.
At 8.54am the Applicant responded stating “Guess I’ll have to be” and expressing unhappiness about the conference and that he needed to move appointments.
At 10am on 6 October 2023 my Chambers called the Applicant as per the scheduled telephone conference. The Applicant indicated that he did not want to participate in the call and had a parole appointment for an hour. When asked if he was available at 11am after his 10am appointment the Applicant said he had a doctors’ appointment and hung up.
Legislative framework
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 15 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 Fair Work Rules regarding the form of the s.399A application pursuant to s.586 of the Act and accepted the oral application. On 19 September 2023 I wrote to the Applicant setting out the grounds for the application, the relevant provisions and sought a response to it along with evidence. The email explained to the Applicant that if he did not provide an explanation by this time, or if the explanation is inadequate, his application may be dismissed pursuant to s.399A of the Act. While the Applicant did not provide supporting evidence for his non-attendance, it was apparent that the Applicant did not want his application dismissed and in these circumstances, I sought to provide an opportunity for the Applicant to be heard.
However, as set out in the context above, the circumstances of this matter are such that I have encountered significant difficulty in securing the Applicant’s participation in a hearing for this purpose. The Applicant did not attend the hearing on 25 September 2023. The Applicant did not take up the opportunities to be heard in relation to the s.399A application despite the Commission’s multiple attempts to engage him and connect him with legal assistance. I have no alternative but to deal with the s.399A application on the material before me.
In Madelyn Taylor v Northline Pty Ltd T/A Northline[5], Deputy President Anderson observed:
“[20] It is well-established that an applicant has an obligation to comply with directions and actively and attentively prosecute their claim. There are minimum disciplines associated with invoking a statutory jurisdiction and litigating in a quasi-judicial tribunal. Invoking the Commission’s jurisdiction is neither cost nor consequence free; doing so puts a responding party (in this instance, the employer) to time and expense in defending its position. It also utilises the services of a publicly funded tribunal whose members and staff have statutory obligations to conduct the institution’s business fairly and efficiently having regard to the interests of multiple applicants and respondents. A minimum discipline is to attend hearings and comply with directions in advance of hearings or, at the very least, provide explanations and seek timely extensions should compliance not be possible.
[21] In Peter Viavattene v Health Care Australia, a full bench stated:
“There is no legislative or common law requirement pursuant to which the
Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).” [6]
[22] Leaving aside the jurisdictional objections in this matter, it is a significant step to dismiss an application that is otherwise within jurisdiction without a merits hearing. However, parliament has underscored the importance of actively and attentively prosecuting one’s claim by empowering the Commission to dismiss applications of its own motion (section 587) or to do so for specific non-compliance on application by a respondent employer (section 399A)”.
[23] I concur with the observations of Deputy President Colman in Diane Porteous v G. Kakafikas and A.G. Bek Partnership T/A Yarra Glen Pharmacy:
“[19] It is completely unacceptable that a person can institute a legal proceeding, fail to prosecute it, and waste the other party’s time and that of the Commission, all with impunity and at no cost to themselves other than a filing fee of $73.20. Although there is the possibility under the Act to bring an application for costs, there is a high bar for success and such applications are, understandably, rarely brought. Further, in many cases, particularly those involving small businesses, there are no costs such as legal fees that might be recouped through cost orders. What has been expended is valuable time that could have been put to productive use. In my view there should be more robust consequences under the Act for litigants who fail to make reasonable efforts to prosecute applications.”[7]
The Applicant’s reasons for his non-attendance at the conferences and hearing before the Commission have varied. The Applicant’s reasons for not attending the conciliation conference before a member of the Commission’s staff on 3 August related to having a “probation and parole appointment”. While the notice of listing was sent to the parties on 6 July 2023, the Applicant did not provide notice of his inability to attend until 7.25am on 3 August 2023.
On 24 August 2023 the matter was listed for a mention and directions hearing to be held at 4pm on Monday 11 September 2023 via telephone and the Applicant acknowledged receipt of this and foreshadowed his attendance. However the Applicant did not attend the mention and directions hearing on 11 September 2023 and did not provide prior notice of this. When reasons for non-attendance were sought at 4.48pm following the hearing the Applicant emailed my Chambers at 4.51pm indicating he had been sick for the past few weeks and when Chambers had tried to make contact with him he was attending the bathroom. The ability of the Applicant to send emails to the Commission shortly after receiving one from the Commission and within close proximity of the hearing suggest that the Applicant’s illness was not so debilitating that he could not have communicated with my Chambers either before or shortly after the commencement of the hearing yet the Applicant did not do so until prompted by the Commission.
My Chambers sought to accommodate the Applicant’s availability in arranging another case management conference on 19 September 2023 however again the Applicant did not attend. It was at this juncture that the s.399A application was made. The reasons the Applicant provided for his non-attendance was that he “had some major problems”, had been arrested and on the day of the case management conference had been seeking legal advice. Despite indicating that he could provide proof of his non-attendance and being invited to do so, the Applicant did not do so. The Applicant’s reasons of seeking legal advice also suggest that he had an appointment and I see no reason why evidence of this could not have been provided or why the Applicant could not have advised the Commission of his inability to attend prior to the commencement of the conference on 19 September 2023.
It seems likely that the Applicant is facing some personal difficulties however there is no evidence before me to substantiate that the reasons the Applicant provided for his non-attendance are the actual reasons that he did not attend. In relation to those reasons involving conflicting appointments, it would have been appropriate for the Applicant to provide prior notice of his inability to attend due to those appointments and to provide alternative availability. The Respondent and Commission have been subjected to inconvenience each time a conference or hearing has been held without knowledge that the Applicant would not be participating. I am satisfied that the Applicant has unreasonably failed to attend a conference conducted by the Commission in relation to the application and that the application should be dismissed pursuant to s.399A of the Act.
Further, the Commission has made every reasonable attempt to accommodate the Applicant’s availability and engage the Applicant in proceedings. This included taking the unconventional step of seeking the Respondent’s consent to speak to the Applicant in the absence of the Respondent after the Applicant expressed mental health concerns and discomfort speaking in front of the Respondent. The Commission sought to connect the Applicant to the Commission’s Workplace Advice Service on two occasions so he could get assistance in responding to the Commission’s directions and understand the procedures he was being asked to comply with and provided links to avenues for seeking legal advice.
While the Applicant may be going through some difficult personal circumstances and I have empathy for him, it is apparent that the Applicant’s attendance before the Commission is not a priority for the Applicant relative to the Applicant’s other commitments as can be detected from his reference to “other commitments” being “busy” or “busy with other appointments” in his email correspondence. Although the Applicant made various representations about conflicting appointments that prevented his attendance, it is also apparent that the Applicant had time to send numerous emails to the Commission, including at times where he may otherwise have been in the hearing or conference had he attended or at times where he could have put the Commission on notice of his inability to attend the conference or hearing beforehand. Despite being advised that the directions for the matter remain in place pending the determination of the s.399A application the Applicant did not file submissions and evidence in accordance with the directions.
I further note that the Commission is generally required to perform its functions and exercise its powers in a manner that is open and transparent and it conducts proceedings in a manner that is consistent with the principles of open justice. It is also important to remember that there is more than one party in an application of this nature and the Commission needs to conduct itself in a manner that is procedurally fair. The Applicant’s unwillingness to participate in proceedings where the Respondent is present creates a significant problem as it would be procedurally unfair to the Respondent to conduct hearings without providing it with an opportunity to participate in those hearings. Such an approach would also conflict with the principles of open justice. Upon consideration of the Applicant’s pattern of conduct it is apparent to me that the Applicant is unwilling to attach priority to attending hearings or conferences as directed by the Commission and in doing so is failing to prosecute his case in a reasonable manner. Without doing so the application has no reasonable prosects of success. Further, the Respondent will continue to suffer prejudice if I require it to continue to participate in proceedings to defend against a claim when the Applicant himself has not and, in all likelihood, will not comply with the Commission’s directions to attend. In these circumstances I consider that there are also grounds for the Commission to exercise its discretion to dismiss the application of its own motion pursuant to s.587.
The Applicant’s application is dismissed pursuant to s.399A and s.587 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] FWC 6213.
[6] [2013] FWCFB 2532, [39]; see also Sayer v Melsteel Pty Ltd[2011] FWAFB 7498 at [19] and Patel v The Tea Centre Pty Ltd[2018] FWC 7814.
[7] [2019] FWC 6264.
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