Aaron Reid v Regal Engineering & Lineboring Pty Ltd T/A Regal Engineering & Lineboring [2020] FWC 4413

1 Fair Work Act 2009 s.394—Unfair dismissal Aaron Reid v Regal Engineering & Lineboring Pty Ltd T/A Regal Engineering & Lineboring (U2020/5594) DEPUTY PRESIDENT BEAUMONT PERTH, 31 AUGUST 2020 Application for an unfair dismissal remedy – application to dismiss under s 587 – application for an unfair dismissal remedy dismissed. [1] On 24 April 2020, Mr Aaron Reid (the Applicant) filed an application for unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (the Act) (original application). Subsequent to the original application, the Applicant has repeatedly failed to communicate with Chambers, and did not appear at the directions hearing listed for 10 August 2020. [2] It is accepted that there is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where an applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at her or his initiative.1 Following the Applicant’s non-attendance at a mention/directions hearing on 10 August 2020, Regal Engineering & Lineboring Pty Ltd (the Respondent) made an application under s 587 for the original application to be dismissed. The basis for the application is that the Applicant has not: 1. prosecuted or provided evidence to support his claim that his dismissal was unfair; 2. confirmed his intent to continue with his application; 3. complied with the directions of the Commission; 4. attended a listed directions hearing on 10 August 2020; and 5. responded to three phone messages from Chambers on 10 August 2020, in circumstances where the Applicant did not appear at the directions hearing. [3] In light of the application, consideration turns to whether the original application should be dismissed. In these types of applications, one is always guided by the principle 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 1 Viavattene v Health Care Australia [2013] FWCFB 2532, [39]. [2020] FWC 4413 DECISION -- 1 of 6 -- [2020] FWC 4413 2 unfair dismissal.2 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’.3 [4] However, I have decided to dismiss the original application. In short, the Applicant has unreasonably failed to comply with a direction of the Commission relating to the original application, has failed to attend a listed mention/directions hearing, has not provided any material in support of his original application, as directed, and has not provided any material as to why the original application should not be dismissed. My detailed reasons follow. Background [5] Following the lodgement of the original application on 24 April 2020, the matter was listed for conciliation with a staff conciliator on 4 June 2020. The parties were unable to reach a settlement and the matter was allocated to my Chambers. [6] On 27 July 2020, Chambers sent directions to the parties with a view to programming the matter. Responses were sought to preliminary questions. The email informed the parties of both ss 399A and 587 of the Act, noting the sections pertained to the dismissal of applications. The Applicant did not respond within the required period and his non- compliance was raised by way of email on 31 July 2020. It read: I refer to Chambers’ email of 27 July 2020. To date, a response has not been received from the Applicant. I remind the parties of s 399A and s 587 of the Fair Work Act 2009. Failure to comply with the directions of the Commission can adversely impact an application, which may also include the dismissal of an application. Mr Reid should urgently respond to the questions below. If a response is not received by 10:00 AWST, Monday 3 August 2020, the matter will be listed for a mention/directions hearing by telephone. Failure to attend before the Commission may also adversely impact an application, and may lead to the dismissal of an application. If the Applicant no longer wishes to continue with his application, then a Form F50 (attached) should be completed and returned to Chambers, or the Applicant may also write to Chambers informing the Commission that they wish to discontinue their application. [7] On the 5 August 2020, my Associate called the Applicant, but was unable to speak to him. My Associate left a voice mail referring to the emails sent on 27 July 2020 and 31 July 2020, and that no response had been received from the Applicant to the same. The Applicant was directed that he was to respond to Chambers’ correspondence. [8] As of 7 August 2020, no response had been received from the Applicant. A further non-compliance email was sent on that same date. It read: The Commission has not received a response from the Applicant. Chambers has also attempted to phone Mr Reid regarding our correspondence. 2 Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925. 3 Ibid, [31]. -- 2 of 6 -- [2020] FWC 4413 3 The matter will be listed for mention by telephone at 11:30 AWST, Monday 10 August 2020 before the Deputy President; failure to attend a listed conference may adversely impact the progress of an application, including the dismissal of an application. Please provide your best contact number to Chambers by 09:00 AWST, Monday 10 August. Chambers again reminds you of s 399A and s 587 of the Fair Work Act 2009. [9] A notice of listing was then issued for 10 August 2020 for a mention/directions hearing. My Associate then attempted to call the Applicant and left a voice message stating that the matter had been listed for a mention, provided the listing date and time, and that the listing related to the Applicant’s non-compliance. [10] On the 10 August 2020, my Associate attempted to contact the Applicant on three separate occasions to initiate the mention/directions hearing. Voice messages were left requesting the Applicant contact Chambers urgently so that the hearing could commence. My Associate raised that non-attendance for a listed directions hearing could adversely impact an application, including through the dismissal of the application. [11] The mention/directions hearing was then initiated without the Applicant present. During the mention/directions hearing, the Respondent orally raised the dismissal of the application. [12] On the 11 August 2020, no contact had been received from the Applicant. My Chambers sent the following email to all parties: Following the Applicant’s non-attendance before a listed hearing, the Respondent has made an oral application for the matter to be dismissed, pursuant to either s 399A or s 587 of the Fair Work Act 2009 (Cth). The Deputy President has directed that the Respondent make such an application to Chambers by way of a Form F1. The Form F1 should be submitted to Chambers before close of business today. Upon receipt of the Form F1, the Deputy President directs that:  Mr Reid (the Applicant) is to file and serve any submissions, witness statements or other documents upon which he wishes to rely in response to the Form F1 application to dismiss by 16:00 AWST, Friday 14 August 2020.  The Respondent may file and serve any submissions, witness statements or other documents upon which they wish to rely in reply to the Applicant’s submissions by 16:00 AWST, Tuesday 18 August 2020. The application to dismiss will thereafter be listed for a hearing by telephone, unless the parties’ consent to the matter being determined on the papers (i.e. based upon the materials submitted by the parties, without a hearing). The Parties should indicate by 10:00 AWST, Wednesday 19 August 2020 if they consent to the matter being determined on the papers or if they wish for the matter to be heard. [13] A Form F1 application was received from the Respondent at 15:30 AWST on 11 August 2020. [14] No response was received from the Applicant on 14 August. On 18 August 2020, my Chambers wrote to both Parties stating: -- 3 of 6 -- [2020] FWC 4413 4 I note the directions of the Deputy President issued on 11 August 2020. No submissions have been received from the Applicant. The Respondent may still file and serve submissions, witness statements, etc., by 16:00 AWST, today, as directed. [15] On that same day, the Respondent submitted a duplicate of its Form F1, seeking the dismissal of the matter, as well as several documents in support. [16] To date, no further contact has been received from the Applicant concerning the original application. Legislative framework [17] The Commission’s powers to dismiss an application are set out generally at s 587 of the Act and specifically in respect to unfair dismissal applications under s 399A. Those sections state: 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. 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 -- 4 of 6 -- [2020] FWC 4413 5 (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. 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. [18] Whenever exercising the power to dismiss an application under either section, s 578 is relevant. It provides: 578 Matters the FWC must take into account in performing functions etc. In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account: (a) the objects of this Act, and any objects of the part of this Act; and (b) equity, good conscience and the merits of the matter; and (c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. Consideration [19] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. [20] As the Applicant did not file any material in opposition to the application to dismiss, I will determine the application on the papers. [21] Having regard to the circumstances of this matter, I am satisfied that the original application has no reasonable prospects of success (see s 587(1)(c)). The Applicant has demonstrated an unwillingness to pursue his application, notwithstanding the fact that he had been placed on notice of those sections of the Act pertaining to the dismissal of an application and to the consequences of non-compliance with directions and non-appearance. At best, indifference has been demonstrated. He has taken no action to prosecute his case and has provided no explanation for this. -- 5 of 6 -- [2020] FWC 4413 6 [22] While there is a reluctance that arises when it comes to extinguishing an applicant’s right to have their matter heard, the context is such, that the Applicant has had ample opportunity to present himself (by telephone or otherwise) to this Commission so that the matter might be programmed - he has not done so. In such circumstances, it is open to conclude that the original application has no reasonable prospects of success. [23] In the exercise of my discretion, I dismiss the application for want of prosecution under s 587(1)(c) of the Act. An order4 dismissing the application is issued alongside this decision. DEPUTY PRESIDENT On the papers Printed by authority of the Commonwealth Government Printer <PR722003> 4 PR722004. -- 6 of 6 --