Andrew Farrugia v Longbow Group Pty Ltd [2021] FWC 3524

1 Fair Work Act 2009 s.394—Unfair dismissal Andrew Farrugia v Longbow Group Pty Ltd (U2021/4494) DEPUTY PRESIDENT CLANCY MELBOURNE, 11 AUGUST 2021 Application for an unfair dismissal remedy. [1] On 25 May 2021, Mr Andrew Farrugia made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). In his Form F2 – Unfair Dismissal Application (Form F2), Mr Farrugia said his employment had been terminated by Longbow Group T/A Longbow on 17 May 2021. [2] When the Form F3 – Employer response to application for an unfair dismissal remedy was subsequently filed, it became apparent that the correct name for the Respondent to Mr Farrugia’s unfair dismissal application is Longbow Group Pty Ltd (Longbow). I am satisfied that this entity is the correct Respondent and order, pursuant to s586(a) of the Act, that the name of the Respondent be amended from “Longbow Group T/A Longbow” to “Longbow Group Pty Ltd”. [3] On 26 May 2021, the Commission spoke with Mr Farrugia on the telephone to discuss with him whether he was eligible to make an unfair dismissal application because he had stated on the Form F2 that he was a subcontractor. Mr Farrugia told the Commission staff member that he thought he was a subcontractor of Longbow but was not sure. He was advised that he had 14 days to confirm whether he wanted to proceed with his unfair dismissal application. On that same day an email was sent to Mr Farrugia with a range of links to various sources of information regarding unfair dismissal, contracting and the Commission’s Workplace Advice Service. This email also indicated that Mr Farrugia had until Wednesday 9 June 2021 to confirm whether he wanted to proceed with his unfair dismissal application or discontinue it. Mr Farrugia was advised that his application may be dismissed without further notice if the Commission did not hear from him. [4] Mr Farrugia provided two mobile numbers to contact him on in his Form F2. He also supplied an email address which was used by the Commission throughout the conduct of this matter. On no occasion did an email sent from the Commission to Mr Farrugia receive the response that it was “undeliverable”. [2021] FWC 3524 DECISION -- 1 of 4 -- [2021] FWC 3524 2 [5] What has transpired since has been approximately 30 communications or attempts at communication with Mr Farrugia through a variety of telephone calls, emails, SMS messages, regular mail and Commission hearings. With each mode of communication, the Commission has used details provided by Mr Farrugia in its attempts to contact him. With three exceptions, these attempts have been ignored and met with no response. [6] The first exception was on 15 June 2021. The Commission was able to call and speak briefly to Mr Farrugia on one of the mobile telephone numbers he had supplied but Mr Farrugia indicated that he was unable to take the call as he was on another call with his bank. While Mr Farrugia said that he would call back later than day, no return call was ever received by the Commission. [7] The second exception was on 16 July 2021, when Mr Farrugia answered a call from the Commission but said he was unable to hear as he was riding a motor bike. He made no attempt to get back in touch with the Commission. [8] A telephone conciliation that had been listed for 6 July 2021 could not proceed because Mr Farrugia did not respond to contact from the Commission and the matter was eventually allocated to me on 21 July 2021. On that day a Notice of Listing was sent to the parties scheduling a Case Management Conference to take place on 23 July 2021. After rescheduling the starting time from 10am to 5.15pm on 23 July 2021 at the request of Longbow, the Case Management Conference proceeded in the absence of Mr Farrugia. He had not responded to any of the emails regarding the Case Management Conference and nor did he answer any of the four phone calls made to his nominated telephone numbers, as outlined in the Form F2. [9] On 26 July 2021, I issued Directions. Mr Farrugia was directed to file and serve his material by no later than 3.00pm on 6 August 2021 and Longbow was to file and serve its material in response by no later than 3.00pm on 20 August 2021. The Notice of Listing and accompanying Directions were sent to Mr Farrugia’s nominated email address. [10] No material was received from Mr Farrugia by 3.00pm on 6 August 2021 so at 3.56pm that day, an email was sent to the parties outlining that as Mr Farrugia had not complied with the Directions, the matter would be listed for a Non-Compliance Hearing by telephone on Monday 9 August 2021 at 5.30pm. The parties were requested to provide their telephone numbers in advance so that they could be contacted for the Non-Compliance Hearing. [11] On Saturday 7 August 2021, my Chambers received an email from Mr Farrugia in response to the Notice of Listing. He provided a new mobile telephone number for further contact. Following 26 May 2021, this was only the third (and last) occasion on which Mr Farrugia engaged with contact from the Commission. [12] The Non-Compliance Hearing took place before me on 9 August 2021 at 5.30pm. Mr Farrugia could not be contacted, despite four attempts to call the newly advised telephone number and the leaving of two voice messages. At the Hearing, Longbow made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Farrugia’s failure to comply with the Directions of the Commission requiring him to file material and his non-attendance at proceedings before me. I waived compliance with the Fair Work Commission Rules 2013 and accepted Longbow’s oral application. -- 2 of 4 -- [2021] FWC 3524 3 [13] Immediately following the Non-Compliance Hearing, correspondence was sent to Mr Farrugia via email advising him of Longbow’s s.399A application. Mr Farrugia was directed to file submissions explaining why he had failed to attend both the Case Management Conference on 23 July 2021 and the Non-Compliance Hearing on 9 August 2021 and why he had not complied with the Directions made on 26 July 2021 requiring him to serve his material by 3.00pm on 6 August 2021. It was stated that his response was required by no later than 4pm on Wednesday 11 August 2021. The correspondence also noted that if the Commission did not receive a response, the s.399A application would be determined based on the material currently before the Commission and Mr Farrugia’s unfair dismissal application would likely be dismissed without further notice. [14] To date, Mr Farrugia has not filed any material with the Commission in response. [15] 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. [16] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. [17] As Mr Farrugia did not file any material in opposition to the application to dismiss, I will determine the application on the papers. [18] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Other than initially filing his application, answering three phone calls, and responding to a single email to provide an updated phone number, Mr Farrugia has failed to actively prosecute his case and has provided no explanation to the Commission for either his continued failure to comply with the Directions requiring him to file material or his failure to attend the Case Management Conference on 23 July 2021 and the Non-Compliance Hearing on 9 August 2021. One could be forgiven for concluding that Mr Farrugia filed his unfair dismissal application out of spite and became determined to put Mr Schreuders, the Director of Longbow, to maximum inconvenience by doing so. Certainly, Mr Farrugia has -- 3 of 4 -- [2021] FWC 3524 4 demonstrated scant regard for the efforts of various members of the Commission’s staff, who conscientiously and repeatedly attempted to make contact with him so that he had the opportunity to engage with the Commission’s processes and prosecute his case. [19] In the circumstances of this matter, I am satisfied that Mr Farrugia has acted unreasonably and that I should exercise my discretion under s.399A and dismiss his unfair dismissal application. This ends Mr Farrugia’s unfair dismissal application. [20] An Order to this effect will be issued with this Decision. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR730847> -- 4 of 4 --