Zada v WorkPac Pty Ltd

[2019] FWC 7292

[2019] FWC 7292

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dean Alexander Zada
v
WorkPac Pty Ltd
(U2019/7139)

DEPUTY PRESIDENT BEAUMONT PERTH, 28 OCTOBER 2019

S 394 - Application for an unfair dismissal remedy - s 399A application to dismiss

[1] On 28 June 2019, Mr Dean Zada (the Applicant) made an application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (the Act). He said he had been unfairly dismissed by Workpac Pty Ltd (the Respondent).

[2] The Respondent subsequently filed an application to dismiss the Applicant’s application, under ss 399A and 587 of the Act. In respect of the application under s 587, the Respondent argued the application had no reasonable prospects of success because the remedies sought were not available in the jurisdiction, reinstatement could not be reasonably facilitated, and neither could compensation. The grounds for the application under s 399A concerned the Applicant’s non-compliance with directions issued on 2 September 2019. The Applicant had asserted his non-compliance arose from an absence of legal guidance or assistance to prepare appropriate submissions.

[3] This decision deals with the Respondent’s application to dismiss the Applicant’s application. 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. 1 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’.2

[4] The parties did not oppose the application to dismiss being determined on the papers.

Background

[5] Having tried unsuccessfully to resolve the dispute through conciliation, I was allocated the matter. The matter was listed for a directions hearing on 19 August 2019. The parties were notified of the same by a notice of listing and email dated 15 August 2019. The email dated 15 August 2019 informed the parties of the accessibility of free legal assistance.

[6] At the directions hearing on 19 August 2019, the Applicant was unable to confirm whether he preferred to participate in a member assisted conciliation conference and requested time in which to inform both Chambers and the Respondent of this. Both parties were informed what was expected of them with regard to compliance of the timetabling of the matter.

[7] By email dated 21 August 2019, the Respondent asked the Applicant to advise whether he wished to proceed to a member assisted conciliation, and the remedy the Applicant was seeking so as to assist the Respondent to assess the utility of such conciliation. In response, the Applicant informed the Respondent that he would be obtaining legal advice and assistance with further proceedings. As such, a response to the Respondent’s enquiries was not, in effect, provided.

[8] Come 29 August 2019, the Applicant had not informed Chambers whether he wished to participate in a further conciliation conference. Consequently, he was directed to inform Chambers of the same by 30 August 2019. The Applicant was directed that if he did not reply by 4pm on 30 August 2019 the matter would be listed for arbitration and directions would be issued to timetable the matter.

[9] Following an email from the Applicant on 2 September 2019, directions and a notice of listing were issued later in the day on 2 September 2019, again, by email. The directions stated to the effect that the Applicant was to file his materials by 16:00 (AWST) on 24 September 2019. Further, the directions noted:

Compliance with the above directions is essential. The parties were put on notice during the mention and are reminded again 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.

[10] On 12 September 2019, the Applicant emailed Chambers apologising for the late reply and informing Chambers that he was currently in the process of obtaining legal representation which he would advise Chambers of shortly.

[11] On 23 September 2019, Chambers received a phone call requesting assistance regarding the preparation of the materials that were due to be filed the next day. Chambers sent to the Applicant templates for submissions and witness statements. It was noted that that the Applicant was informed that he should look at the resources that had been previously emailed, and that materials were due the next day at 16:00 (AWST). The Applicant acknowledged the email.

[12] On 24 September 2019 at 13:38 (AWST) Chambers received an email that stated:

Dear Deputy President Beaumont

In relation to the above matter, I apologize [sic] for the late request and any inconvenience, but would it be possible to request an urgent extension of time to prepare all the required documents as ordered/requested.

I have been away with my partner for the last couple of weeks, in a location that has very limited internet and telephone access, besides only learning late last week, that I had to fork out a substantial sum of money, prior to getting representation from a firm that I thought could help me with my matter.

Unfortunately for me and the predicament I am currently in, I do not have the funds to obtain representation, and now require an extension of time to prepare all documents in the appropriate format that they are required to be presented in.

I have no [sic] only been able to get to a local library this afternoon, to start completing documents through the FWC templates, but I am not in a position to satisfactorily complete everything that is required, besides also having time restrictions on computer usage.

A fortnight or a month extension would be suitably sufficient.

You’re support of my request in relation to this whole matter would be greatly appreciated, Please.

[13] I did not grant the extension of time. Chambers communicated this decision to the Applicant by email dated 24 September 2019, time stamped 14:23 (AWST). I observed the following:

(a) the request for an extension has been made approximately 3 hours before your materials are due;

(b) you have had ample time in which to: a) prepare your materials; and b) request an extension before today;

(c) your absence in a remote location with your partner does not absolve you of your responsibilities to prepare the materials that you were directed to prepare;

(d) your absence in a remote location with your partner does not constitute a plausible reason why the Commission should exercise discretion to grant an extension; and

(e) your discovery that you would be required to pay legal fees if engaging a representative, again, does not constitute a plausible reason why the Commission should exercise discretion to grant an extension.

[14] The Applicant was informed that the abovementioned factors at paragraphs 13(a)-(e) in culmination had resulted in the request for the extension being declined.

[15] By email dated 24 September 2019, time stamped 15:24 (AWST), the Applicant responded noting that he had started completing the relevant documentation on 24 September 2019 ‘but simply ran out of time with the resources available’. The Applicant continued that ‘I have nothing to submit to the matter, other than previous correspondence that I have sent through prior to today’. With regard to the previous correspondence, a Form F2 had been received by the Applicant in addition to a medical certificate and miscellaneous emails refuting various assertions.

Non-compliance with directions

[16] To date the Applicant has filed some material although not the material he was directed to file by 24 September 2019. The Respondent advanced that in circumstances where the Applicant was provided with the resources to assist him in preparing his materials (on three occasions) and was advised of the access to free legal assistance, the argument that he failed to comply with directions due to the absence of legal assistance and/or know-how, must fail.

[17] Section 399A of the 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.

(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.’

[18] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to comply with the directions issued on 2 September 2019. He has done so in circumstances where he was clearly informed about: (a) the necessity to comply with the directions; (b) what could occur if he did not comply with the directions; and (c) the resources available to assist him to prepare the requisite materials. In effect, while adequately forewarned of his responsibilities as an applicant, he chose to leave the preparation of all his materials until a day or so before they were due. At this time, it clearly dawned on the Applicant that to advance his application there was preparatory work to be done concerning the materials to be filed. He had been caught short of time and was candid enough to accede as much. As such, a request was forthcoming for an additional fortnight or month in which the Applicant could prepare such materials. However, the Applicant had already been provided with time in which to prepare the materials and had been directed to various resources he could utilise. Further, the request for additional time was made merely hours before the materials were due to be filed.

[19] In arriving at the decision, I have considered that the power to dismiss a substantive application should only be exercised cautiously and sparingly. Furthermore, I am guided by the object of Part 3-2, which states:

(1) [Object]

The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) [“Fair go all round” to be accorded]

The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and the employee concerned.

[20] I am reluctant to extinguish the Applicant’s right to have his application heard and determined according to the law. It does not sit comfortably with me. However, the Applicant was provided with clear direction on what was required, the resources available and the timeframe in which materials were to be filed. I have considered the Applicant’s submissions and am not persuaded that they assist him. It is not uncommon for parties in applications such as these to be unrepresented, hence why the Commission provides access to various resources to assist and why, on this occasion, I conducted a directions hearing to ensure the parties were appraised of what was required of them. Further, I make the observation that while it is evident that the Applicant is unequivocally upset by his circumstances and in no way level criticism at him for this, his upset has no place in the expression of profanity throughout his submissions concerning this application to dismiss.

[21] The object of Part 3-4 not only requires of me to ensure that a ‘fair go all around’ is accorded to the employee, but also to the employer. It had always been open to the Applicant to prepare his materials in a timely manner, or at the very least to consider the timeframe he would require to do so, and thereafter request an extension of time providing the Commission with reasonable notice of such request (not three to four hours before the deadline). He did not.

[22] While there has not been repeated non-compliance with directions of the Commission relating to an application, section 399A does not require this, albeit that the Commission must be satisfied that the Applicant has ‘unreasonably’ failed to comply with a direction relating to the application. I have taken into consideration that the Applicant has for the most part-maintained contact with Chambers, and in addition sought an extension of time with three to four hours to spare. However, it remains the case that the Applicant chose to prepare his materials on the day they were due to be filed and was unable to submit these in the requisite time.

[23] Should the matter now proceed, the Respondent would be placed in the unenviable position of piecing together the Applicant’s application with a view to enabling it to prepare a its submissions, witness statements and other documents in response. I am not persuaded that this accords a ‘fair go all round’ in the context of this matter.

Conclusion

[24] In circumstances where the Applicant has provided no plausible excuse for non-compliance with the directions, has been directed to various resources, was informed of the importance of complying with directions, and sought an extension of time with only hours to spare, I have concluded, on balance, that the Applicant has unreasonably failed to comply with a direction of this Commission relating to his application. I am therefore persuaded I should exercise my discretion under s 399A and dismiss the Applicant’s application. The decision is not one made lightly given the need to adopt a cautious approach when dealing with such applications. However, an Order 3 giving effect to this decision will be issued today.

[25] In light of my decision, it is not necessary that I address the Respondent’s application under s 587 of the Act. However, my observations are that while the Applicant may have sought some remedies unavailable within this jurisdiction this does not in turn mean that his application had no reasonable prospect of success. While the Respondent submitted that reinstatement could not be reasonably facilitated due to various reasons, and that compensation could not be reasonably ordered, there was insufficient evidence and submissions in support of such contentions to arrive at such a conclusion. The Respondent had, in addition, asserted that the Applicant had not satisfied the minimum employment period. The objection in and of itself does not mean that the application had no prospects of success given it is an objection that had not yet been properly ventilated or tested. There was no indication on the Respondents Form F3 that the Respondent was advancing such objection.

DEPUTY PRESIDENT

Determined on the papers

Printed by authority of the Commonwealth Government Printer

<PR713586>

 1   John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925.

 2   John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925 at [31].

 3   PR713745.