DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Scott Munn
v
The Grout Guy Pty Ltd as trustee for the Young Enterprises Trust T/A The Grout Guy
(U2019/937)

Application for an unfair dismissal remedy - s 399A application granted - Non-attendance of applicant - unreasonable act or omission.

[1] On 31 January 2019, Mr Scott Munn made an unfair dismissal application under section 394 of the Fair Work Act 2009 (the Act). Mr Munn’s employment had been terminated by The Grout Guy Pty Ltd (The Grout Guy) on 25 January 2019.

[2] During the course of the proceedings Mr Munn did not present for a directions hearing listed on 9 May 2019, and subsequently did not present for the arbitration listed for 20 May 2019. Prior to the arbitration, Mr Munn, in email correspondence to my Chambers dated 14 May 2019, informed the Commission that he had not attended the directions hearing because a family member had taken sick and he had to make an emergency call overseas. Mr Munn continued that he did not know when he would return but would urge that the arbitration be postponed to a later date.

[3] By email dated 15 May 2019, Chambers sought additional information in support of Mr Munn’s request for an adjournment, and by 16 May 2019, The Grout Guy had filed a Form F1 regarding an application under s 399A seeking orders to dismiss the application for an unfair dismissal remedy.

[4] Mr Munn did not present for the hearing listed on 20 May 2019, and therefore the following directions were issued:

•  The Respondent is granted leave to amend its application under s 399A in light of the recent events; the application, submissions and evidence that the Respondent seeks to rely upon are to be filed by 5.00pm AWST, Wednesday 22 May 2019.

•  The Applicant is to file submissions and evidence it seeks to rely upon by 5.00pm on Friday, 24 May 2019.

•  Either party may request a hearing of the above application. If no such request is made, it will be determined ‘on the papers’.

[5] Neither party requested a hearing regarding the application made under s 399A. I have therefore decided to determine the application on the papers.

[6] The issue to be determined is whether Mr Munn has unreasonably failed to comply with directions of this Commission, failed to attend a hearing held, and if so whether discretion should be exercised to dismiss the application.

Background

[7] On 9 May 2019, the matter was listed for a directions hearing. Mr Munn did not present for the hearing, and did not inform Chambers that he required an adjournment. My Chambers subsequently attempted to contact Mr Munn.

[8] In response from Chambers’ attempts to contact Mr Munn, on 14 May 2019, Chambers received an email from Mr Munn that stated:

Dear Chambers,

I have only just received your emails in regards to this matter the reasons been for me not been able to attend the hearing is that a family had taken sick and had to emergency call to fly overseas ASAP I do apologise for any inconvenience caused I don’t no when my return will be as of this stage but as for the hearing I would urge it be postponed to a later date please preferably next month or when ever FWC are available to have this hearing mentioned again I hope the FWC understands this matter.

I would also like to add the fact that I have Tried to make Mr Young a settlement offer and he’s refused and would prefer to waste he’s money on a lawyer he’s response was I have made him 2 offers to resolve this situation.

This will also mean I will not be able to attend at the next case

hearing I would take it that FWC will understand my reasons

Kind regards

Sent from my iPhone

[9] It is observed the Notice of Listing for the arbitration was provided on 30 April 2019 at 11:46am and the Notice of Listing for the directions hearing had been provided on 1 May 2019. No notification was provided to Chambers before 14 May 2019 that Mr Munn had departed the country due to a family emergency.

[10] On 15 May 2019 at 11:48am my Chambers responded to Mr Munn in the following terms:

Dear Mr Munn

Further to my below reply, we are sincerely sorry to hear of the difficult time that both you and your family member are experiencing.

As observed, a hearing of your matter is listed for Monday, 20 May 2019.

While the topic is indelicate, it is however necessary to ask that you provide as a matter of urgency, evidence:

* of your departure to another country; and

* showing a family member has been taken sick in circumstances of an emergency.

The Deputy President directs you to provide a statutory declaration outlining, in detail, what has occurred, in addition to evidence such as airline tickets / transportation receipts, and medical certificate outlining the expected duration of the illness and its criticality.

If you are unable to provide a statutory declaration due to your location or access to IT facilities, then you are required to provide a detailed email outlining:

* what precisely has occurred;

* when it occurred:

* date when you left the Australia;

* your relation to the family member;

* duration and criticality of family member's illness; and

* expected return date to Australia.

An adjournment of the hearing on Monday will not be granted until such time that the Deputy President is satisfied of the legitimacy of your reasons.

…

Associate to Deputy President Beaumont

[11] On Thursday, 16 May 2019, 11:27 am, The Grout Guy filed a Form F1 – an application under s 399A of the Act seeking orders to dismiss the application for an unfair dismissal remedy.

[12] On 16 May 2019, at 11:47 am, my Chambers wrote:

Dear Mr Munn

We refer to the below correspondence and the attached application. The Deputy President invites you to make any submissions you may have in regard to same by no later than 12:00 (AWST) Friday, 17 May 2019. We note the correspondence of yesterday directing you to provide relevant evidence in support of your reasons for non-attendance. Should same be received, they may also be taken into consideration with regard to the 399A application.

The Applicant will then be afforded an opportunity to respond to any submissions you may make, prior to the Deputy President determining the application.

Regards

…

Associate to Deputy President Beaumont

[13] On 16 May 2019, at 7:16 pm Mr Munn emailed Chambers remarking:

In regards to your email. I am totally disappointed in your response i have made you aware of the fact it was a Emergency vacation which is not something i had any idea was going to happen to then ask for relevant documents to support my case etc is total unjustified I am dealing with a difficult time at this moment and I don’t believe that the FWC has even respected the fact of the matter but to order documents to be sent by certain time is unbelievable there are other things happening that I don’t need added stress and anxiety I will have to take this matter further if the FWC dont wish to take my matters into consideration other than mr young’s lawyer pushing for this matter to be settled I will be seeking legal advice from my lawyer I don’t have the facilities to send all documents you requested at this stage but what I would like you to note is that I have made you aware of my situation and can you please tell Mr young my personal work friends don’t wish for him to contact them as they don’t wish to here from a ex employer in regards to if am in the country or not at least 4 people he has contacted asking questions in some way I would class this as harassment and certainly not acceptable.

[14] It is observed that the provision of details concerning the ‘emergency vacation’ had not been provided. Therefore, a further email was sent from Chambers on Friday, 17 May 2019, at 9:57 am:

Dear Mr Munn

Thank you for the below correspondence; we appreciate that you are experiencing a trying time at the moment. Unfortunately, however, your application remains on foot, and must be dealt with in a timely manner.

We refer to the email sent to you on Wednesday, 11 May 2019. In this correspondence you were directed, in the event you were unable to provide a statutory declaration due to IT issues, to provide a detailed email outlining the following:

* what precisely has occurred;

* when it occurred:

* date when you left the Australia;

* your relation to the family member;

* duration and criticality of family member's illness; and

* expected return date to Australia.

We note that no response was received to this correspondence, and your below response does not provide sufficient grounds for an adjournment to be granted. Unfortunately, absent an email outlining the above information, and any evidence in support of same (ie, flight booking/ticket stub, transportation receipts, and/or medical/carers certificate), the Deputy President is not willing to grant an adjournment. Accordingly, it is expected that you will attend the hearing currently listed for Monday.

In the event you wish to provide a response containing the above requested information, such a response should be received no later than 16:00 (AWST) today, 17 May 2019.

Regards

….

Associate to Deputy President Beaumont

[15] To state the obvious, Mr Munn did not present for hearing, and The Grout Guy subsequently filed an amended application pursuant to s 586, and an outline of submissions. There was no request for a hearing from either party. Section 593 provides that the Commission is not required to hold a hearing except as provided by the Act.

Relevant legislation

[16] 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.

The Grout Guy’s submissions

[17] The Grout Guy submits that Mr Munn unreasonably failed to attend the direction hearing. Observing that the notice of listing had been issued on 1 May 2019 and that Mr Munn gave no prior notice that he would not be attending, it was submitted that, at the least, an email should have been forthcoming advising of the non-attendance.

[18] On 15 May 2019, the Commission issued a direction to Mr Munn to explain and provide evidence regarding his departure to another country for the purpose of attending to a family member who had taken sick. The Grout Guy submitted that Mr Munn unreasonably failed to comply with the direction. Observing that Mr Munn sought to rely upon an assertion that he was overseas and was therefore unavailable, Mr Munn had not provided the required details which would support such an assertion, despite being provided with ample opportunity to do so.

[19] Mr Munn’s non-attendance at the hearing on 20 May 2019 was, according to The Grout Guy, unreasonable because of the lack of explanation for the non-attendance; particularly in light of the email correspondence that Mr Munn had received from Chambers.

Consideration – s 399A

[20] On application by an employer, the Commission has the discretion to dismiss an unfair dismissal application under s 399A because there has been unreasonable non-compliance with directions of the Commission. As observed, the power to dismiss an application if the non-compliance was unreasonable is discretionary.

[21] The Explanatory Memorandum regarding proposed s 399A, states that the intention of this provision was ‘to address the small proportion of applicants who may pursue claims in an improper and unreasonable manner … 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. 1

[22] Mr Munn did not attend a directions hearing on 9 May 2019, and did not comply with directions issued on 15 May 2019, and 17 May 2019 to provide certain information to the Commission regarding his non-attendance on 9 May 2019, or in support of his request for an adjournment. Thereafter he did not attend the hearing listed on 20 May 2019.

[23] It is accepted that the starting point of any consideration regarding an application to dismiss is that an applicant is entitled to have his or her case heard. 2 While directions play an important role in case management,3 it is only in extreme circumstances that a party should be shut out from litigating an issue which is fairly arguable.4 However, the circumstances of each case are central.5

[24] In this matter, Mr Munn was provided with opportunities to provide a detailed explanation for his absence at the directions hearing, and proposed non-attendance at the hearing. All that was required of Mr Munn was that he give evidence or detail, such that I could be satisfied of the legitimacy of his reasons for his absence and request for an adjournment. While appreciative that Mr Munn appeared to be a self-represented litigant, he was simply asked to provide the following information by way of return email:

•  what precisely has occurred;

•  when it occurred:

•  date when you left Australia;

•  your relation to the family member;

•  duration and criticality of family member's illness; and

•  expected return date to Australia.

[25] While Mr Munn’s language use in his email dated 14 May 2019 gave me initial cause for concern regarding his literacy competence, I observed that on his application he had not indicated that he required the use of an interpreter or special assistance.

[26] Further, in response to the directions of 15 May 2019, it was evident that Mr Munn understood what had been asked of him and he had elected to take an imperious course rather than addressing the request that was made. Had he simply complied with the direction issued, it may have been the case that an adjournment would have been granted; dependent, of course, on the evidence provided. However, it was Mr Munn’s choice not to do so – and that rests squarely with him.

[27] While there is empathy for an applicant faced with the most challenging of circumstances, namely the ill health of a family member, what was asked of Mr Munn was not, in the circumstances, unreasonable. To adjourn a hearing and postpone it to an indeterminate date – perhaps in a month, based on nothing more than the information ‘that a family had taken sick and he had to emergency call to fly overseas ASAP’, simply does not accord with exercising power in a manner that is fair and just in the absence of further detail. 6

[28] In circumstances where the applicant was afforded multiple opportunities to satisfy this Commission of the legitimacy for his request for an adjournment or absence, but elects not to so comply, and there is a history of non-compliance with directions indicating an inability, or an unwillingness to have the matter ready for hearing, then circumstances warrant Mr Munn being precluded from proceeding with his application.

[29] In such circumstances, I will exercise my discretion and dismiss Mr Munn’s application. An order giving effect to this decision is issued concurrently with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR708891>

 1   Explanatory Memorandum, Fair Work Amendment Bill 2012 (Cth) [161] – [163].

 2   Ghalloub v Aon Risk Services Australia Limited PR956665, 21 March 2005, Giudice J, Hamilton DP and Larkin C.

 3   Adam Whittaker v Total Harvesting Pty Ltd T/A Total Harvesting [2018] FWC 1583.

 4   Ibid [24].

 5   Ibid.

 6   Fair Work Act 2009 (Cth) s 577.