Andrew Whatarau v The Trustee for Catresca Unit Trust [2023] FWC 1766

1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Andrew Whatarau v The Trustee for Catresca Unit Trust (U2023/4463) COMMISSIONER JOHNS MELBOURNE, 26 JULY 2023 Application for an unfair dismissal remedy – s.339A – failure to attend hearing held by the Commission – application granted – s.400A – costs order application filed too early – costs application invalid Background [1] This decision concerns an application made under s.399A of the Fair Work Act 2009 (Cth) (FW Act) by the Trustee for Catresca Unit Trust (the Respondent) to dismiss an unfair dismissal application brough against it by Mr Andrew Whatarau (the Applicant). The Respondent in filing its submissions in reply also sought an order pursuant to s.400A for the costs incurred by it. [2] For the reasons that follow, the Respondent’s application under s.399A is granted and the Applicant’s application for an unfair dismissal remedy is dismissed. However, the Respondent’s application under s.400A is dismissed for invalidity and want of jurisdiction. Procedural Context [3] On 23 May 2023, the Applicant filed an application in the Fair Work Commission (Commission) for an unfair dismissal remedy pursuant to s.394 of the FW Act. [4] On 6 June 2023, the parties were emailed a Notice of Listing for the conciliation conference to be conducted on 3 July 2023. [5] On 13 June 2023, the Respondent filed its response. No jurisdictional objections were raised. [6] On 3 July 2023, the Commission conducted a conciliation conference between the parties. The matter was not resolved. Accordingly, on the same day, the matter was allocated to my Chambers. [2023] FWC 1766 DECISION -- 1 of 12 -- [2023] FWC 1766 2 [7] On 4 July 2023, I listed the matter for a mention/directions hearing (MD Hearing) at 2:30PM on 11 July 2023. A Notice of Listing was sent to the nominated email addresses of the Applicant and the Respondent. [8] On 11 July 2023, the Respondent attended the MD Hearing. However, the Applicant did not attend nor was reachable despite five separate attempts by my Associate to his nominated phone number. Consequently, before me the Respondent applied to have the application dismissed pursuant to s.399A(1)(a) of the FW Act on the basis of the Applicant’s non-attendance. I waived compliance with the Fair Work Commission Rules 2013 and accepted the oral application. [9] Following the MD Hearing, the Applicant was sent a letter to his nominated email address noting of the Respondent’s s.399A application. The Applicant was afforded until 5PM (Melbourne time) on 18 July 2023 to provide and serve on the Respondent his reason/s for not attending the MD Hearing. The Applicant was put on notice that if he failed to file or his reason/s were not reasonable, his unfair dismissal application would be dismissed. [10] On 12 July 2023 at 9:52AM, the Applicant was sent an SMS requesting him to check his emails. At 12:09PM on the same day, the Applicant contacted my Chambers via phone and advised that he could not attend the MD Hearing because he had started a new job and did not have his phone on him. My Associate requested that the Applicant provide his reasons in writing. At 12:13PM on the same day, the Applicant sent an email to my Chambers noting: “Sorry for missing the appointment on the 11th of july i started a new job on the 10th and didnt have my phone on me at the time of the call sorry that happened but it wont happen again” (First Explanation) [11] On 12 July 2023 at 12:41PM, the Applicant was sent an email by my Chambers noting: “Dear Mr Whatarau, In support of your reasons, you are invited to provide: • relevant evidence to demonstrate as proof of your new employment and the commencement date (e.g. employment contract, letter of offer etc); • an explanation as to why you did not have your phone with you; and • an explanation as to why you did not inform the Commission of your unavailability so that the hearing could have been re-scheduled. You must provide your response by 5pm (Melbourne time) on 18 July 2023. If you do not do so, the Commission will have to determine the s.399A application on the basis of your reasons below.” [12] On 18 July 2023 at 10:54AM, the Applicant was contacted by my Chambers via phone but the call went unanswered. The Applicant was left a voice mail reminding him of the 5PM deadline. At 11:04AM on the same day, the Applicant was sent an SMS providing him with another courtesy reminder of the deadline. -- 2 of 12 -- [2023] FWC 1766 3 [13] On 18 July 2023 at 11:55AM, the Applicant contacted my Chambers via phone and noted that he has already provided his reasons. My Associate advised the Applicant that a further email was sent requesting further evidence and that it is a matter for him if he wishes to file further material but that if he does not do so, the Commission will have to determine the s.399A application on the basis of his email only. [14] The Applicant explained that he has been unable to check his emails because he has been preoccupied with attending hospitals in relation to a baby. The Applicant was further advised that he must provide all his reasons in writing. At 12:20PM on the same day, the Applicant sent an email to my Chambers noting: “Heres my contract stating i was at work with my start date and the reson why i didnt have my phone is no phones are allowed to be in the processing area” [15] The email substantiated that the Applicant was offered a casual role commencing on 3 July 2023. However, no other evidence was supplied in support of any other explanations for his non-attendance. The evidence did not establish that on 11 July 2023 the Applicant was rostered to work as a casual employee. [16] At 12:56PM on the same day, my Chambers invited the Respondent to provide its submission in reply by 4PM (Melbourne time) on 20 July 2023. [17] On 20 July 2023 at 2:41PM, the Respondent provided its reply submissions stating as follows: “[…]We have indisputable evidence that the applicant was not at work at his new place of employment, Meat 2 Please, on Tuesday 11th July and Wednesday 12th July 2023 and therefore could have attended the hearing. In any case, Meat 2 Please stops production at 1,00 pm every day as advised by their production team. We wish to express our deep concern about the seriousness of the applicant’s mendacious response as it undermines the system’s credibility further eroding the trust between Catresca and the applicant. We kindly request that the Commission uphold the respondent’s application to have the case dismissed under Section 399A of the FW Act and to make an order under section 400A for costs incurred by the respondent[…]” [18] The reply submissions did not include any documentary evidence, they were merely submissions. Consequently, my Chambers responded on the same day at 3:04PM requesting the Respondent provide the referenced evidence before the 4PM deadline. The Respondent provided the following statement at 3:52PM in an email format: “I, Eddie Travaglini of [address redacted], Managing Director, do solemnly and sincerely declare that on Thursday 20/7/2023 at approximately 1:15 pm, I had a telephone conversation with Mr Ben Spargo, owner of Meat 2 Please, a long standing -- 3 of 12 -- [2023] FWC 1766 4 friend. During the conversation I was advised that the applicant had been employed by his company. When asked how he was going, Mr Spargo replied that the applicant has already been absent from work for a few days. When asked about the applicant’s attendance at work on the 11th July 2023, Mr Spargo checked the attendance register and told me that the applicant was absent on 11th and 12th July 2023. Eddie Travaglini Witness Name Rhiannon Dack Contact Number : [phone number redacted] Date 20/7/23” [19] As a matter of procedural fairness and noting the gravity of the Respondent’s statement, on 21 July 2023 at 4:32PM the Applicant was provided with an opportunity to reply by 4PM (Melbourne time) on 25 July 2023. [20] On 22 July 2023 at 11:35AM and 12:16PM respectively, the Applicant sent two emails to my Chambers. The first email stated as follows: “I was off work cause i slipped down the stairs of my new employer and sprained my hand.. [(Second Explanation)] …” [21] The Applicant provided no evidence of his alleged workplace injury. [22] The Applicant’s Second Explanation (that he was off work) contradicts his First Explanation (that he had started a new job and did not have his phone on him). The explanations are mutually exclusive. [23] Further the Second Explanation is effectively a concession that the Applicant was not at work on the day of the MD Hearing. Consequently, he could have attended the MD Hearing. Alternatively, he could have made contact with my Chambers to explain that he was injured and could not attend. The Applicant took neither step. Legislative Framework [24] Section 399A of the FW Act provides: “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 -- 4 of 12 -- [2023] FWC 1766 5 (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.” [25] The Explanatory Memorandum to the Fair Work Act Amendment Bill 2012 (Cth) in respect of s.399A provided as follows: “161. Item 2 inserts a new section 399A to enable the FWC to dismiss an unfair dismissal application where the FWC is satisfied that the applicant has unreasonably: • failed to attend an FWC conference or hearing relating to the application • failed to comply with an FWC direction or order relating to the application, or • failed to discontinue the application after a settlement agreement has been concluded. 162. The power to dismiss an unfair dismissal application in these circumstances is not intended to prevent an applicant from robustly pursuing a legitimate unfair dismissal claim. Rather, the amendment is intended to address the small proportion of applicants who may pursue claims in an improper or unreasonable manner. This amendment responds to Panel recommendation 42. 163. 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. Examples of when the FWC may exercise its discretion to dismiss an application under these provisions may include where: • an applicant fails to attend an FWC proceeding relating to the matter without providing prior advice and/or without any reasonable excuse for their failure to attend, or • an applicant continues to pursue an unfair dismissal application despite a settlement agreement having been concluded by the parties. 164. Note 2 to new subsection 399A(1) draws the reader’s attention to the FWC’s capacity to make an order for costs under new section 400A (explained below) if satisfied that the applicant’s failure caused the other party to the matter to incur costs. 165. New subsection 399A(2) provides that the power to dismiss applications is only exercisable on application by an employer. -- 5 of 12 -- [2023] FWC 1766 6 166. Subsection 399A(3) and Note 1 to subsection 399A(1) make clear that new section 399A is not intended to limit the FWC’s general power to dismiss applications on grounds such as where the application is frivolous or vexatious or has no reasonable prospects of success under section 587. Similarly, item 3 inserts a note to subsection 587(1) to highlight the FWC’s power to dismiss an unfair dismissal application under new section 399A. 167. Item 1 of Schedule 11 inserts a new Schedule 3 into the FW Act. Item 11 of Schedule 3 provides for these amendments to apply in relation to dismissals that take effect after the commencement of this Part.” [26] Section 400A and 402 of the FW Act provide as follows: “Costs orders against parties (1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter. (2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402. (3) This section does not limit the ’WC's power to order costs under section 611. … Applications for costs orders An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 400A or 401, must be made within 14 days after: (a) the FWC determines the matter; or (b) the matter is discontinued.” [emphasis added] Consideration The s.399A application [27] The Full Bench of the Commission in Ian Kenneth Lockyear v Graeme Cox (Lockyear) relevantly provided as follows in relation to the operation of s.399A of the FW Act:1 -- 6 of 12 -- [2023] FWC 1766 7 “[30] We observe at the outset that the power to dismiss an application is to be exercised cautiously. As the Full Bench observed in John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station: ‘The Courts have long held that the power to dismiss a substantive application should only be exercised cautiously and sparingly; a fortiori where, as here, the appellant has sought orders for relief for his alleged unfair dismissal. This is so because it results 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. In short, the application is dismissed before an applicant has had his/her ‘day in court’, or as the appellant pleaded, he just wanted his case heard.’ … [57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following: 1. An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application. 2. The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application. 3. The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy. 4. In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party. 5. A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application. [58] In most cases, it is not until these steps have been observed that the Commission is in a position to determine the s.399A application before it. It is worth reiterating that a cautious approach should be taken to dismissing a substantive application for relief.” -- 7 of 12 -- [2023] FWC 1766 8 [28] As set out in the procedural context section of my decision, the first four steps have been satisfied. Noting the Applicant’s concession (in his Second Explanation) that he was not at work during the day of the MD Hearing, there were no facts in dispute in which a conference or hearing was required. [29] I must now determine the s.399A application before me. [30] I note the observations made by Deputy President Anderson in Madelyn Taylor v Northline Pty Ltd T/A Northline who stated as follows:2 “[20] It is well-established that an applicant has an obligation to comply with directions and actively and attentively prosecute their claim. There are minimum disciplines associated with invoking a statutory jurisdiction and litigating in a quasi-judicial tribunal. Invoking the Commission’s jurisdiction is neither cost nor consequence free; doing so puts a responding party (in this instance, the employer) to time and expense in defending its position. It also utilises the services of a publicly funded tribunal whose members and staff have statutory obligations to conduct the institution’s business fairly and efficiently having regard to the interests of multiple applicants and respondents. A minimum discipline is to attend hearings and comply with directions in advance of hearings or, at the very least, provide explanations and seek timely extensions should compliance not be possible. [21] In Peter Viavattene v Health Care Australia, a full bench stated: “There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).” [22] Leaving aside the jurisdictional objections in this matter, it is a significant step to dismiss an application that is otherwise within jurisdiction without a merits hearing. However, parliament has underscored the importance of actively and attentively prosecuting one’s claim by empowering the Commission to dismiss applications of its own motion (section 587) or to do so for specific non-compliance on application by a respondent employer (section 399A). [23] I concur with the observations of Deputy President Colman in Diane Porteous v G. Kakafikas and A.G. Bek Partnership T/A Yarra Glen Pharmacy: “[19] It is completely unacceptable that a person can institute a legal proceeding, fail to prosecute it, and waste the other party’s time and that of the Commission, all with impunity and at no cost to themselves other than a filing fee of $73.20. Although there is the possibility under the Act to bring an application for costs, there is a high bar for success and such applications are, understandably, rarely -- 8 of 12 -- [2023] FWC 1766 9 brought. Further, in many cases, particularly those involving small businesses, there are no costs such as legal fees that might be recouped through cost orders. What has been expended is valuable time that could have been put to productive use. In my view there should be more robust consequences under the Act for litigants who fail to make reasonable efforts to prosecute applications.” [24] Ms Taylor has, for reasons unknown to the Commission, been non-responsive. If the reason is to be gleaned from her email of 9 September 2021 that she has secured alternate employment and does not wish to proceed with her application, it is disrespectful to the process Ms Taylor instituted to not file or inform the Commission of a discontinuance. If it is because Ms Taylor is occupied between the hours of 8.30am and 5pm weekdays it is equally discourteous not to respond to the Commission’s telephone calls and emails and seek rescheduling. [25] Working in a new job after being dismissed does not displace an applicant’s obligation to actively and responsibly attend to litigation they have voluntarily initiated seeking a remedy concerning their former employment.” [31] Having regard to the materials filed by the Applicant, it is clear that he was aware of the listing of the MD Hearing. Notwithstanding that knowledge, the Applicant neither attended the MD Hearing nor requested an adjournment to a later time. [32] The Applicant’ First Explanation is contradicted by the Second Explanation. The inconsistency in the Applicant’s explanations weigh heavily against finding his reasons being reasonable. [33] In any case, neither explanation is a reasonable excuse for not attending the MD Hearing. A sprained hand is not a satisfactory excuse. The Applicant’s ability to call the Commission and send an email the next day to proffer the First Explanation is suggestive that the injury was not completely debilitating. I am not convinced that the injury was significant enough to incapacitate the Applicant. If it were, the Applicant would have proffered the Second Explanation in the first place. The Second Explanation has all the hallmarks of a recent invention when it became apparent to the Applicant that the First Explanation was unlikely to be accepted. [34] The Applicant was given every opportunity to put his best case forward with several prompts and reminders from my Chambers despite no obligation to do so. Overall, on the basis of the Applicant’s emails, the only substantiated explanation provided were the commitments of a new employment. As Deputy President Anderson noted in the above decision, a new employment does not displace an applicant’s duty to prosecute its case. In any event, and gravely for the Applicant, he conceded that he was not working on the day of the MD Hearing. Therefore, the Applicant could have attended the MD Hearing, returned the Commission’s five separate calls, or at the very least sought an adjournment if the listing time was not amenable to him within the six (6) clear days between the listing and the MD Hearing date via an email. [35] For the avoidance of doubt, I do not suggest that finding new employment is inconsistent with an applicant’s duty to prosecute its case. It is in fact a natural human response and in line with the unfair dismissal jurisdiction principles for applicants to take reasonable steps to mitigate their loss.3 However, in the matter before me, the Applicant’s only substantiated -- 9 of 12 -- [2023] FWC 1766 10 explanation were the commitments of a new employment which for the reasons set out above were not reasonable. [36] I am satisfied that the requirements of s.399A have been met because Applicant’s explanations were not reasonable. I am therefore satisfied that the Applicant’s application for an unfair dismissal remedy should be dismissed. The s.400A application [37] The Respondent’s costs application is premature. The application may only be brought before the Commission after the determination or discontinuance of a matter pursuant to s.402 of the FW Act. At the time of the application, the matter had not yet been determined. In the alternative, the application was also not brought before the Commission in the prescribed form F6 as required by the Fair Work Commission Rules 2013.4 Accordingly, I cannot order the relief sought by the Respondent. However, before making any future application the Respondent would be minded to think carefully about the utility of the same having regard to the principles applicable to the operation of s.400A. [38] The Explanatory Memorandum to the Fair Work Bill 2012 provided as follows: “168. Item 4 inserts a new section 400A to enable the FWC to order costs against a party to an unfair dismissal matter (the first party) if it is satisfied that the first party caused the other party to the matter to incur costs by an unreasonable act or omission in connection with the conduct or continuation of the matter. 169. As with the new power to dismiss applications under section 399A, the power to award costs under section 400A is not intended to prevent a party from robustly pursuing or defending an unfair dismissal claim. Rather, the power is intended to address the small proportion of litigants who pursue or defend unfair dismissal claims in an unreasonable manner. The power is only intended to apply where there is clear evidence of unreasonable conduct by the first party. 170. The FWC's power to award costs under this provision is discretionary and is only exercisable where the first party (whether the applicant or respondent) causes the other party to incur costs because of an unreasonable act or omission. This is intended to capture a broad range of conduct, including a failure to discontinue an unfair dismissal application made under section 394 and a failure to agree to terms of settlement that could have led to the application being discontinued. 171. However, the power to award costs is only available if the FWC is satisfied that the act or omission by the first party was unreasonable. What is an unreasonable act or omission will depend on the particular circumstances but it is intended that the power only be exercised where there is clear evidence of unreasonable conduct by the first party.” [39] Deputy President Easton in Dimitrios Perdikaris v KLF Holdings Pty Ltd further summarised the relevant principles:5 -- 10 of 12 -- [2023] FWC 1766 11 “[18] Section 400A only applies to unfair dismissal claims in the Commission. Section 400A is concerned with unreasonable acts or omissions in connection with the conduct or continuation of a matter already instituted, not whether it was reasonable to have instituted a matter in the first place (per Gugiatti at [43]). The following principles apply in relation to s.400A: (a) there are two pre-conditions for the making of a costs order: i. that a party engaged in an unreasonable act or omission in relation to the conduct or continuation of a matter; and ii. that the act or omission caused the other party to the matter to incur costs (per Gugiatti at [43]); (b) whether an act is “unreasonable” is informed by its context and requires an evaluative assessment of all the circumstances (per Celand v Skycity Adelaide Pty Ltd (2017) 274 IR 420, [2017] FCAFC 222 at 171); (c) the continuation of a matter after arbitration has commenced might be an unreasonable act if, on the facts apparent to the applicant at the relevant time, there was no substantial prospect of success (per Tracey at [24]); (d) a failure to inform another party of an inability to attend proceedings would be, if intentional, unreasonable and if accidental, an unreasonable omission (per Roy Morgan Research v Baker [2014] FWCFB 1175 at [10] (Roy Morgan) citing Goffet v Recruitment National Pty Ltd [2009] AIRCFB 626 at [35], see also Emma Sidney v Employsure Pty Ltd [2016] FWC 2659 at [28]); and (e) a failure to advise the other party of the first party’s intentions, such as the intention to maintain a jurisdictional objection, if deliberate or reckless would be unreasonable and if an omission could be equally unreasonable (per Roy Morgan at [10]). [19] Even when a condition under s.400A or s.611 is satisfied, the power to award costs is discretionary.” [40] Overall, the remedies of s.400A are entirely discretionary and the onus rests on the Respondent to discharge the high bar that it requires to meet. Conclusion [41] The Respondent’s s.399A application is granted but its s.400A application is dismissed for invalidity and want of jurisdiction. [42] Pursuant to s.399A of the FW Act, the Commission, as presently constituted, dismisses the Applicant’s application for an unfair dismissal remedy on the basis that the Applicant has unreasonably failed to attend a hearing. -- 11 of 12 -- [2023] FWC 1766 12 [43] An order giving effect to this decision will be issued simultaneously with this decision [PR764406]. COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR764405> 1 [2021] FWCFB 875, [30] & [57] – [58]. 2 [2021] FWC 6213, [20] – [25]. 3 Mr Jason Morley v Collins Transport Adelaide [2019] FWC 11, [42] 4 Rule 8. 5 [2022] FWC 2192, [18] – [19]. -- 12 of 12 --