Yutaka Shinoda v Challenger Security Pty Ltd
[2022] FWC 1085
•9 MAY 2022
| [2022] FWC 1085 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Yutaka Shinoda
v
Challenger Security Pty Ltd
(U2021/11788)
| COMMISSIONER P RYAN | SYDNEY, 9 MAY 2022 |
Application of an unfair dismissal remedy – s.399A application to dismiss – s.399A application dismissed.
Background
This is an edited version of my decision delivered ex tempore and recorded in transcript on 6 May 2022.
Mr Yutaka Shinoda (Applicant) filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act).
Following a case management hearing on 8 March 2022, I listed the matter for hearing on 6 May 2022 and issued directions to the parties for filing of evidence and submissions.
On 31 March 2022, the Applicant filed materials in support of his application, 2 days beyond the time provided for in the directions.
On 21 April 2022, Challenger Security Pty Ltd (Respondent) filed its materials in response to the application, in accordance with amended directions.
Over the period of 22-25 April 2022, the Applicant filed three short emails in reply.
On 26 April 2022, my chambers issued a notice of listing to the parties advising that the matter was listed for further mention and directions on 29 April 2022.
On 27 April 2022, the Applicant sent correspondence to my chambers stating “Such short notice, not able. I have scheduled 6 May 2022, 10:00.”
On 28 April 2022, my chambers sent the following correspondence to the Applicant:
Dear Mr Shinoda,
I refer to your correspondence below.
The purpose of the mention and directions listing on Friday 29 April 2022 is finalise any administrative matters ahead of the hearing of the merits of your application, which remains listed at 10:00 am on Friday 6 May 2022.
If you cannot attend at 2:00pm on Friday 29 April 2022, you will need to provide written reasons explaining why, supported by any relevant documents, as well as details of your availability on 29 April, 2 May and 3 May.
If you fail to attend a listing of your application without an adequate reason, your application may be dismissed. In this respect your attention is drawn to ss.399A and 587 of the Fair Work Act 2009.
Please see below relevant sections of the Fair Work Act which can also be accessed here:
399A Dismissing applications
[s.399A omitted]
587 Dismissing applications
[s.587 omitted]
[Associate sign-off].
There was no appearance by, or on behalf of, the Applicant at the mention and directions hearing on 29 April 2022, despite attempts to contact the Applicant by telephone and email.
During the mention and directions hearing the Respondent sought to file an oral application pursuant to s.399A of the FW Act. I refused to accept the oral application and directed the Respondent to file any application in the appropriate form.
At 5.55am on 2 May 2022, the Applicant sent correspondence to my chambers by email stating:
Written Reasons
14:00 on Friday 29 April 2022.
I have shifts that already scheduled on that day.That’s why I could not attended.
At 5:57am on 2 May 2022, the Applicant sent further correspondence to my chambers by email which attached a document titled “Rostering Period 25 Apr 2022 to 1 May 2022”.
At 3:32pm on 2 May 2022, the Respondent filed an application pursuant to s.399A of the FW Act, seeking an order that the unfair dismissal application be dismissed (399A Application).
The Applicant was directed to file any response to the 399A Application by 4:00pm on 4 May 2022. The Applicant did not file any materials in response.
On 5 May 2022, my chambers informed the parties that the 399A Application would be heard and determined at 10:00am on 6 May 2022. The parties were informed that if the 399A Application was granted, the Applicant’s unfair dismissal application would be dismissed. Alternatively, if the 399A application was not granted, the parties were directed to be prepared for the hearing of the unfair dismissal application to proceed.
Submissions
In summary the Respondent submitted:
· That the Applicant’s failure to attend the mention and directions hearing on 29 April 2022 and failure to respond to the 399A application was unreasonable;
· That the Applicant’s reason for his non-attendance is not acceptable and should be rejected;
· That the Applicant has a duty to prosecute his case and cannot pick and choose which hearings he wishes to attend;
· That the Applicant should have notified his current employer and arranged time off to attend; and
· That the Applicant’s failure to attend has resulted in prejudice to the Respondent through its attendance at the mention and directions hearing, the resultant disruption to the hearing of the unfair dismissal application and the potential for the matter to go over to subsequent hearing days.
The Respondent referred me to various authorities in support of its application relating to the powers of the Commission to dismiss applications[1], the purpose of s.399A of the Act[2], and the approach to dealing with a s.399A application.[3]
The Respondent submitted further factors such as the merits of the application, the Applicant’s constant interruptions in the proceedings and submissions of irrelevant correspondence to the Commission should be taken into consideration.
In summary the Applicant submitted:
· That the reason for his non-attendance at the mention and directions hearing was the short notice; and
· That the date for the mention and directions hearing should have been set in consultation with the parties.
The Applicant confirmed in response to a question from the Commission that the document titled “Rostering Period 25 Apr 2022 to 1 May 2022” was his roster in relation to his current employment.
In reply, the Respondent submitted:
· That the Applicant failed to respond to 399A Application;
· That the Applicant was provided adequate notice; and
· That the Applicant’s prior work commitments were not an acceptable reason for his non-attendance at the mention and directions hearing.
Legislative Provisions
Section 399A of the FW Act provides as follows:
“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.”
Consideration
It is not in dispute that the Applicant failed to attend the mention and directions hearing on 29 April 2022. Furthermore, despite the Applicant forwarding correspondence regarding his unavailability, the Applicant then failed to comply with a direction of the Commission to provide written reasons for his unavailability and details of any availability to attend a mention and directions hearing at an alternative time.
In Thomas v Highway NN Pty Ltd, Deputy President Sams set out the approach to the exercise of the power to dismiss an application pursuant to s.399A as follows:
[14] Accordingly, s 399A of the Act requires a two-step process; firstly, a finding that one or more of the grounds set out are satisfied and secondly, if so, the consideration as to whether it is appropriate to exercise a discretion to grant the s 399A application and dismiss the unfair dismissal application. It is not in dispute that the applicant failed to attend Commission conferences on two occasions, knowing full well the ramifications of not doing so. Therefore, this decision rests primarily on my discretionary power as to whether I should dismiss this application as a result of the applicant’s non-compliance.[4]
In relation to the 399 Application before me, I am satisfied that it was made by the Respondent in accordance with s.399A(2). I am also satisfied that the Applicant’s failure to attend the mention and directions hearing was unreasonable. I am further satisfied that the Applicant’s failure to comply with a direction of the Commission to provide written reasons in advance of the mention and directions hearing if he was unable to attend was unreasonable. Accordingly, the grounds set out at s.399A(1)(a) and (b) are satisfied.
As the jurisdictional pre-requisites have been met, it now turns to whether I should exercise my discretion.
In Thomas v Highway NN Pty Ltd, Deputy President Sams stated:
[15] It has been long held by the Courts and this Commission that the power to dismiss a substantive application should only be exercised cautiously; see: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8]. This is so because it 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. In other words, the application is dismissed before an applicant has had his/her ‘day in court’.
The cautious approach to dismissing a substantive application for relief was reiterated by a Full Bench of the Commission in Lockyear v Graeme Cox[2021] FWCFB 875 at [58].
While the Applicant was unreasonable in failing to attend the mention and directions hearing, or providing written reasons in advance, the Applicant did ultimately provide an explanation that he was working on the afternoon of 29 April 2022. The Applicant provided that explanation, supported by his roster, in advance of the filing of the 399A Application without any knowledge that the Respondent had foreshadowed the filing of the 399A Application.
In those circumstances, I am not satisfied that I should exercise my discretion to dismiss the Applicant’s unfair dismissal application.
Disposition
The 399A Application is dismissed. An order to that effect will issue with this decision.
COMMISSIONER
[1] Granas v Berkley Challenge Pty Ltd[2015] FWCFB 1795.
[2] Lane v St Vincent De Paul Society[2015] FWC 5460 at [38].
[3] Thomas v Highway NN Pty Ltd[2020] FWC 3911 at [14].
[4] Thomas v Highway NN Pty Ltd[2020] FWC 3911 at [14].
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