[2013] FWC 3070 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Garry Dawkins
v
East Coast Commercials
(U2012/16512)
COMMISSIONER SPENCER |
BRISBANE, 17 MAY 2013 |
s.394 - Application for an unfair dismissal remedy — Applicant's non-compliance with directions of the Fair Work Commission — Respondent applied for application to be dismissed — no reasonable prospects of success — want of prosecution — application dismissed under s.587.
[1] This decision relates to an application made by Mr Garry Dawkins (the Applicant) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (the Act) against East Coast Commercials (the Respondent).
[2] The Respondent has applied for the Applicant’s application for an unfair dismissal remedy (the substantive application) to be dismissed pursuant to s.587 of the Act.
Legislative scheme
[3] Section 587 of the Act provides as follows:
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.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.
Procedural history
[4] The Applicant lodged his substantive application on 7 December 2012. The Respondent provided its response on 21 December 2012 and did not lodge a jurisdictional objection to the Applicant’s substantive application.
[5] A Fair Work Commission (the Commission) Conciliator held a conciliation in the matter on 11 January 2013. 1 The matter was unable to be resolved and subsequently the matter was listed for hearing on 15-17 May 2013.
[6] Directions were issued requiring the Applicant to file with the Commission and serve on the Respondent an outline of submissions, witness statements and any other documentary material he intended to rely upon at the hearing on or by 18 March 2013. 2 The Respondent was required to file and serve the material it intended to rely upon at the hearing on or by 15 April 2013.3
[7] Prior to the file being allocated to the Commission, as currently constituted, a series of events occurred with the application as follows.
[8] On 25 March 2013, the file documents that a staff member of the Commission contacted the Applicant in relation to the submissions and evidence he was required to file and serve by 18 March 2013. 4 The Applicant claimed he did not realise he had to file material before the hearing. He asked for an extension and was advised to email his request, with reasons and evidence, to the Commission.5
[9] On 26 March 2013, the Commission received an email from the Applicant requesting an extension to file and serve his material on the basis he had recently been burgled and that his computer was either stolen or broken in the robbery. 6
[10] The Commission forwarded the Applicant’s request for an extension to file and serve material to the Respondent for comment. The Respondent noted the burglary occurred on 9 March 2013 and submitted that the Applicant had “ample time” to file and serve his material. 7
[11] On 26 March 2013, the matter was listed for a non-compliance hearing, before Commissioner Jones, to be heard the next day by telephone. On 27 March 2013, a decision was made to give the Applicant more time, to obtain a police report regarding the burglary and the non-compliance listing was cancelled. 8 On 5 April 2013, the Commission followed up the Applicant’s progress in obtaining the police report, as the Applicant had still not provided a copy of the police report to the Commission or the Respondent.9
[12] On 15 April 2013, the Respondent filed and served its material, despite the Applicant not having filed any material as at that time. In addition to the materials filed and served, the Respondent filed an application for the matter to be dismissed pursuant to s.587 of the Act.
[13] On 16 April 2013, the matter was listed before Commissioner Jones for a non-compliance hearing, which was held on 18 April 2013.
[14] At the non-compliance hearing Commissioner Jones directed that, the hearing of the arbitration listed for 15-17 May 2013 be vacated and that the file be allocated to a member in Brisbane for the purpose of considering the Respondent’s application for the Applicant’s substantive application to be dismissed pursuant to s.587 of the Act. In addition, the Applicant was directed to file and serve submissions and evidence in relation to the application under s.587 by close of business on 29 April 2013. 10 The matter was allocated to the Commission as currently constituted.
[15] The due date of 29 April 2013 passed without the Applicant having filed or served any material.
[16] On 2 May 2013, the Respondent sent an email to the Commission further requesting the Applicant’s substantive application be dismissed, as the Applicant had not filed or served any material as directed.
[17] On 3 May 2013, the Commission sent an email to both parties outlining that the Applicant had a “final opportunity to provide written reasons as to why the Directions issued by Commissioner Jones have not been complied with and why the Applicant should be allowed to file material in response to the form F1 after the Directions have expired”. The email stated the Applicant had until close of business on 8 May 2013 to respond — failing to do so would result in the Commission considering dismissal of the Applicant’s substantive application on the material already before it. A copy of that email was also sent to the Applicant in hardcopy via express post. 11
[18] The subsequent date of 8 May 2013 passed without the Applicant having responded to the Commission’s email regarding the consideration of the dismissal of his substantive application. As at the date of this decision the Applicant had provided no response.
Consideration
[19] In this matter the Respondent submitted, the Applicant’s substantive application has no reasonable prospects of success and hence should be dismissed pursuant to s.587 of the Act. The Respondent submitted this is appropriate as the Applicant had failed to comply with a series of directions issued by the Commission, and had failed to provide a reasonable excuse as to his conduct.
[20] The Applicant has not filed or served any material in relation to the Respondent’s application for the matter to be dismissed, despite being given ample opportunity to do so.
[21] The words “Without limiting when the FWC may dismiss an application” in s.587(1) of the Act, indicate that the Commission may consider dismissing an application in circumstances not contemplated by s.587(1)(a), (b) or (c) of the Act. The Explanatory Memorandum to the Fair Work Bill 2008, further states that this “provision is not intended to limit FWA’s power to dismiss applications for other reasons, such as failure to meet jurisdictional requirements.”
[22] In Chand v State Rail Authority of NSW, 12 a Full Bench of the Australian Industrial Relations Commission dealt with an appeal against a decision at first instance to strike out an applicant’s application for relief in respect to termination of employment.
[23] Though Chand v State Rail Authority of NSW related to an earlier legislative scheme, the principles enunciated by the Full Bench for the dismissal of an application in relation to an applicant’s non-compliance with directions issued by the Commission are relevant to the exercise of the Commission’s discretion under s.587.
[24] The Full Bench described want of prosecution and how it interacts with the discretion to dismiss an application, especially in relation to a failure to follow directions, in the following terms:
[48] The classic circumstances that enliven a court’s discretion to dismiss an action for want of prosecution are a failure, typically a repeated failure, by a plaintiff to comply with directions of the court or a prolonged period of inactivity on the part of a plaintiff.
[49] In Ghalloub v Aon Risk Services Australia Limited the Full Bench identified the considerations relevant to the exercise of discretion to summarily dismiss a matter for non-compliance with directions or otherwise for want of prosecution:
“[25] Directions are often issued to facilitate the timely and expeditious determination of the application. While the utility of directions may vary depending on the nature of the proceedings, directions can play an important role in case management. If complied with they help to delineate the issues of fact and law and reduce the need for adjournments to take instructions or to gather evidence. The importance of case management is now widely recognised in the law, and directions for hearing a matter are an important aspect of case management in the Commission. In Queensland v. J.L. Holdings Pty Limited [(1996-97) 189 CLR 146] the High Court accepted the importance of case management principles but said:
“However, nothing in that case suggests that those principles might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.” [ibid., at p.154]
[26] Most if not all Australian courts have an inherent power to control abuse of their process and to dismiss a proceeding for want of prosecution. In many jurisdictions the rules of court govern the circumstances in which an action may be dismissed on that basis. In Lenijamar Pty Ltd and Others v AGC (ADVANCES) Limited [(1990) 27 FCR 388] Wilcox and Gummow JJ considered the application of Order 10 rule 7 of the Rules of the Federal Court and said:
“The discretion conferred by Order 10, rule 7 is unconfined, except for the condition of non-compliance with a direction. As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an appellant is such as to indicate an inability or unwillingness to cooperate with the court and the other party or parties in having the matter ready for trial within an acceptable period and cases - whatever the appellant's state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non-compliance may be minor, the cumulative effect of an appellant's defaults may be such as to satisfy the judge that the appellant is either subjectively unwilling to cooperate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.
In the second of the two situations we postulate, a significant continuing default, it does not really matter whether there have been earlier omissions to comply with the court's directions. Ex hypothesi the default is continuing and is imposing an unacceptable burden on the respondent. But the continuance of the non-compliance is of the essence of this situation. If, when the court looks at the matter, the direction has already been complied with, the defaulting appellant may be ordered to pay any wasted costs; but it would be difficult to justify the dismissal of the proceeding solely because of that default.” [ibid., at p.396-7]
[27] As is evident the Court noted the width of the discretion conferred by the rule and went on to specify two situations in which an application might be dismissed for want of prosecution. The first situation is one in which the appellant has a history of non-compliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period. The second situation is one in which continuing non-compliance is causing unnecessary delay, expense or other prejudice to the respondent. Although obviously not binding in relation to the Commission's proceedings, we think that these observations usefully summarize some of the matters to which the Commission should have regard when considering whether to dismiss an application for want of prosecution.
[50] The ultimate the issue is what is required by the interests of justice in the circumstances of the particular case. In Sali v SPC Ltd 23 Brennan, Deane and McHugh JJ noted that:
“It is true that it is only in extraordinary circumstances that the interests of justice will be served by a refusal of an adjournment in a case such as the present where the practical effect of the refusal is to terminate the proceedings.”
[25] In this matter it is relevant that the directions issued by the Commission required the Applicant to provide submissions and evidence firstly, for the purposes of holding an arbitration in the substantive matter, and secondly, to address the Respondent’s application for the substantive application to be dismissed.
[26] The first class of directions were in the nature of procedural directions or for the purposes of managing the case for a prospective hearing. The second class of directions were to give the Applicant an opportunity to respond to the Respondent’s application for the Applicant’s substantive application to be dismissed. In both instances the Applicant was given a number of opportunities, and was notified using a variety of communication methods, to respond to the Commission’s concerns. The Applicant failed to do so.
[27] I am satisfied that the Applicant has failed to comply with the reasonable directions of the Commission within the timeframes required. The timeframes for complying with either class of directions issued by the Commission had been adjusted on more than one occasion to provide further opportunities for the Applicant to put his position — on each occasion, the Applicant, failed to provide the materials required or a reasonable response to the request.
[28] The Commission also has an obligation to afford procedural fairness to both parties. The purpose of directions being issued is to ensure the receipt of the Applicant’s documentation and to enable the Respondent to respond to the Applicant’s case. In this case, the Respondent had met the directions of the Commission in regards to the substantive application, despite not having receipt of the Applicant’s submissions and evidence to enable it to properly respond to the Applicant’s case.
[29] The Applicant was put on notice on multiple occasions that non-compliance with directions of the Commission may result in his substantive application for an unfair dismissal remedy being dismissed for want of prosecution. Natural justice must be considered in regards to the rights of both parties to the proceedings. The Applicant has exhausted all opportunities to put his case before the Commission.
Decision
[30] Accordingly, in all the circumstances of the matter, it is fair and reasonable to dismiss the Applicant’s substantive application for want of prosecution. Pursuant to s.587 of the Act, the Applicant’s application for an unfair dismissal remedy is dismissed.
[31] I Order accordingly.
COMMISSIONER
1 Conciliator Report 11 January 2013.
2 Directions issued 28 February 2013.
3 Directions issued 28 February 2013.
4 Fair Work Commission File Note dated 25 March 2013.
5 Fair Work Commission File Note dated 25 March 2013.
6 Email received from the Applicant dated 26 March 2013.
7 Email received from the Respondent dated 26 March 2013.
8 Email received from the Respondent dated 2 April 2013.
9 Fair Work Commission File Note dated 5 April 2013.
10 Transcript of Proceedings dated 18 April 2013.
11 Email sent by the Commission to the Applicant dated 3 May 2013; A search of the relevant tracking number on Australia Post’s website indicates the letter was delivered to the Applicant’s address on 7 May 2013.
12 PR975108 per Lawler VP, McCarthy DP and Redmond C (19 December 2006).
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