Zachary Caughey v Jeremy Lawson P & D

[2020] FWC 149

[2020] FWC 149

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Zachary Caughey
v
Jeremy Lawson P & D
(U2018/4710)

COMMISSIONER BISSETT MELBOURNE, 16 JANUARY 2020

Application for an unfair dismissal remedy.

[1] On 4 May 2018, Mr Zachary Caughey (Applicant) made an application to the Fair Work Commission (Commission) seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). The Applicant was employed by Jeremy Lawson P & D (Respondent). His employment came to an end on 22 June 2017.

[2] Section 394(2) of the FW Act requires that an application for unfair dismissal must be made within 21 days of the time the dismissal took effect. The Applicant has made his application 10 months and 12 days after his employment came to an end, 295 days outside the statutory time limit.

[3] In the Form F2 Unfair dismissal application, the Applicant contended that he was not paid by the Respondent for a large part of his employment, had unsuccessfully attempted to request payment from the Respondent, and that this failure to pay by the Respondent forced him to resign. The Applicant contended this was a constructive dismissal.

[4] The Respondent did not file a Form F3 Employer response.

Background

[5] The matter was listed for conciliation conference on 4 June 2018.

[6] The Applicant’s representative requested the conciliation conference be adjourned. The Applicant’s representative advised the Commission that the parties had agreed to delay the matter by two to three months to allow the Respondent enough time to accrue the money the Applicant contended was owed to him. The Commission did not grant this adjournment request and the conciliation conference remained listed for 4 June 2018.

[7] The conciliation conference did not proceed as on 4 June 2018 the Applicant’s representative emailed correspondence to request that the matter proceed to Arbitration.

[8] On 6 June 2018, the Commission issued directions to the parties and, as the application was received outside the statutory time limit, the matter was listed for an Extension of Time Conference/Hearing. The Applicant and Respondent were directed to file their material in relation to the Extension of Time issue.

[9] The Applicant’s representative requested an extension of time to file materials. The reason given was that the Applicant was engaged in settlement discussions with the Respondent. The Applicant’s representative advised on 11 July 2018 that the Respondent had admitted to the outstanding debt and they were in the progress of negotiating payment instalments. The extension of time to file material was granted. The Applicant was directed to file his material by 11 July 2018.

[10] As the Applicant did not file material by the due date, the matter was listed for a Non-Compliance Hearing on 20 July 2018.

[11] The Non-Compliance Hearing proceeded before Deputy President Masson on 20 July 2018. The Applicant and his representative attended. The Respondent did not attend. The Applicant’s representative advised that the Applicant wished to proceed with his application and that Respondent admits to the debt owed to the Applicant, however, the Respondent also has a debt owing to the Australian Tax Office which the Applicant believed was being paid off in instalments. The Deputy President advised the Applicant that entitlements owing is not within the jurisdiction of the Commission.

[12] Amended directions to file material were issued to the parties and the Extension of Time Conference/Hearing remained listed for 10 August 2018.

[13] The Applicant’s representative filed the Applicant’s material with the Commission on 24 July 2018. The Respondent did not file any material.

[14] On 4 August 2018, the Applicant’s representative sent to the Commission correspondence sent to the Respondent in relation to the Respondent’s failure to file materials.

[15] On 7 August 2018, the Respondent telephoned the Commission to advise that he may not be able to attend the Extension of Time Conference/Hearing that was scheduled for 10 August 2018. The reasons given were that the Respondent’s bookkeeper had recently undergone surgery and may not be able to travel and that the Respondent was not aware of the Applicant’s application as he had not been checking the post and does not have an email address of his own. The Commission advised the Respondent that he may attend the Conference/Hearing by telephone and that he can make an adjournment request in writing if required.

[16] On 9 August 2018, the Commission telephoned the Applicant’s representative and advised of the Respondent’s telephone call on 7 August 2018. The Applicant’s representative advised that he had been in numerous discussions with the Respondent and believed that the Respondent had been aware of the matter for some time.

[17] At 9:02am on 10 August 2018, the Commission received email correspondence that appeared to be sent from the Respondent’s bookkeeper’s email address requesting an adjournment of the Extension of Time Conference/Hearing. The correspondence advised that “my representative has had major surgery” and was unwell and not able to attend the Conference/Hearing and that correspondence in relation to the matter had been sent to the Respondent’s representative directly.

[18] The matter proceeded to an Extension of Time hearing before Commissioner Gregory on 10 August 2018. The Applicant, Applicant’s Representative and the Respondent were in attendance.

[19] At the hearing, the matter was part heard. The Applicant’s representative contended that the Applicant had been underpaid by the Respondent. The Respondent advised that they are agreeable to resolving the alleged underpayment. The matter was adjourned to allow the parties time to come to an agreement regarding the amount owed to the Applicant and to continue settlement negotiations.

[20] Later that day, directions were issued by the Commission in relation to discussions between the parties. The Applicant was directed to advise the Commission about whether agreement had been reached in relation to the underpayments and whether the Applicant still wished to pursue his application by 10 September 2018.

[21] Between 10 September and 12 November 2018 there was various correspondence between the parties and to the Commission with respect to the Applicant’s underpayment claim.

[22] On 6 December 2018, the Applicant’s representative emailed correspondence to the Commission advising that they had not received a reply from the Respondent to their numerous letters and requested that the unfair dismissal application be listed for a hearing at the next available date.

[23] On 24 December 2018, the matter was listed for a further conference by telephone on 21 January 2019. The conference proceeded before Commissioner Gregory on that date.

[24] Following the conference, correspondence was emailed to the parties advising of the next steps. The Applicant’s representative was to file with the Commission and serve on the Respondent’s bookkeeper the details of the Applicant’s outstanding claims. The Commission was to then contact the Respondent’s bookkeeper to obtain the Respondent’s response to the claim. The Commission would then discuss this response with the Applicant’s representative. This process did not resolve any outstanding issues.

[25] On 23 July 2019, Commissioner Gregory emailed correspondence to the Applicant’s representative and the Respondent’s bookkeeper. The correspondence advised that while the matter originally proceeded as an unfair dismissal application, it had become evident that the issues principally concerned claims in regard to underpayment of entitlements. The Commissioner requested that the parties should advise by 26 July 2019 whether they were prepared to participate in a further conference to progress the matter.

[26] On 25 October 2019, Commissioner Gregory emailed correspondence to the Applicant’s representative reiterating that the issues primarily concern claims in regard to underpayment of entitlements and advising that it is unclear whether the Respondence wishes to participate in a conference to settle the matter.

[27] On 14 November 2019, the Commission telephoned the Applicant’s representative and left a voicemail message requesting a call back to confirm if the Applicant wished to continue with his unfair dismissal application.

[28] Later that day the Applicant’s representative telephoned the Commission to advise that the Applicant contends that there was a constructive dismissal due to the money owing to him. The Applicant wishes to proceed with the unfair dismissal claim. The Applicant’s representative also advised that they would contact the Fair Work Ombudsman in the next few days.

[29] The application was listed for mention before Commissioner Bissett on 10 January 2020. At the mention the Commissioner indicated that she was considering dismissing the application for unfair dismissal because it has no reasonable prospect of success as it was out of time by an extended period and involved a matter that would not be resolved by the Commission as they involved underpayment of wages best pursued by the Fair Work Ombudsman.

[30] The Applicant’s representative accepted this was a reasonable course of action for the Commission to take.

Consideration

[31] Section 587 of the FW Act 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.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[32] The Applicant lodged his unfair dismissal application 295 days outside the statutory time limit. While the unfair dismissal does involve a question of whether the Applicant was constructively dismissed, the substantive issue in this matter involves the underpayment of wages. The Applicant’s representative has advised the Commission that the Respondent admits to this debt and settlement negotiations have been focused on the issue of facilitating repayment.

[33] It was accepted by the Applicant’s representative at the mention on 10 January 2020 that the Commission does not have the jurisdiction to deal with questions of underpayment of wages. Further it was accepted by the Applicant’s representative that the more appropriate forum for this type of application may be the Fair Work Ombudsman or the Courts.

[34] The Applicant’s representative did not make any objection to the unfair dismissal application being dismissed pursuant to s.587 of the FW Act.

[35] For all the reasons given above, I am therefore persuaded that I should exercise my power under s.587(1)(c) of the FW Act to dismiss the application on the basis that it has no reasonable prospects of success. An Order 1 to this effect will be issued in in due course.

COMMISSIONER

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