Alexander Burkitt v Cunningham Lindsey Australia Pty Ltd T/A Cunningham Lindsey [2018] FWC 2417

1 Fair Work Act 2009 s.394—Unfair dismissal Alexander Burkitt v Cunningham Lindsey Australia Pty Ltd T/A Cunningham Lindsey (U2018/1244) SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 7 MAY 2018 Application for an unfair dismissal remedy – Fair Work Act 2009 (Cth) s.399A – application by respondent to dismiss originating application because applicant has failed to comply with direction – applicant’s failure found to be unreasonable – s.399A application granted – originating application dismissed. [1] On 8 February 2018, Mr Alexander Burkitt’s solicitors, JFM Law, made an application under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy against Mr Burkitt’s former employer, Cunningham Lindsey Australia Pty Ltd, on his behalf. [2] The respondent filed its response to the applicant’s unfair dismissal application on 2 March 2018. [3] On 12 March 2018, I listed this matter for hearing on 14 May 2018 and issued directions for the filing of material. [4] The directions included that the applicant file and serve an outline of submissions, witness statements and other documentary material he intends to rely on in support of his application by no later than 4:00pm on 3 April 2018. [5] On 5 April 2018, following the applicant’s non-compliance with the directions, my chambers wrote to the applicant’s legal representative to advise that the applicant’s material had not yet been received and requested an update as to whether the material had been filed or when the material could be expected to be received. [6] On 6 April 2018, the applicant’s solicitor, Mr John Morrisey, wrote to chambers: ‘Thank you for your communication on 5 April 2018 in the above matter. We confirm that we have been unable to receive further instructions from the Applicant. In light of the circumstances, this firm intends to lodge a Notice of Representative Ceasing to Act on Tuesday, 10 April 2018, if we are unable to receive and further instructions from the Applicant.’ [2018] FWC 2417 DECISION -- 1 of 6 -- [2018] FWC 2417 2 [7] On 6 April 2018, my chambers sent a reply email to Mr Morrisey in which the applicant and respondent were copied into. Relevantly, the email stated: ‘The applicant (copied into this email) is requested to contact chambers without delay to advise whether he still intends to pursue this application, given his submissions and evidence are overdue. I note that the applicant was provided a copy of the directions/notice of listing by email on 12 March 2018 and copied into the email dated 5 April 2018 in which an update as to the filing of material was sought.’ [8] On 10 April 2018 the applicant’s solicitors, JFM Law, filed a form F54- Notice of representative ceasing to act. The applicant and respondent’s representatives were served a copy of the notice on the same date. My chambers subsequently acknowledged receipt of this notice and again requested that Mr Burkitt contact chambers to advise whether he intended to pursue his application. [9] Also on 10 April 2018, my chambers attempted to contact Mr Burkitt on the mobile phone number provided on his originating application form. The call was unanswered and a voicemail message left requesting that he urgently contact my chambers to advise whether he wished to pursue his unfair dismissal application. [10] On 11 April 2018 an email was sent to the parties confirming that the respondent had applied to have Mr Burkitt’s application dismissed under s.399A of the Act. I issued directions for the filing of submissions on the respondent’s s.399A application which were dispatched with this email. The directions were as follow: ‘1. Cunningham Lindsey Australia Pty Ltd (the Respondent) shall file in the Commission and serve on Mr Alexander Burkitt (the Applicant) submissions in support of the application to dismiss the Applicant’s unfair dismissal application pursuant to s.399A of the Fair Work Act 2009 (Cth) by 5.00pm Wednesday, 18 April 2018. 2. The Applicant shall file in the Commission and serve on the Respondent submissions in reply outlining why the Commission should not dismiss his unfair dismissal application in accordance with s.399A of the Fair Work Act 2009 (Cth) by 5.00pm Thursday, 26 April 2018.’ The email also stated: ‘Should you not respond or comply with the directions dated 11 April 2018 your unfair dismissal application may be dismissed without further notice.’ [11] The respondent filed submissions in accordance with the directions on 17 April 2018. The submissions set out the factual background to the matter and submitted in accordance with case authority1 that the application should be dismissed as the applicant had unreasonably failed to comply with numerous directions and the applicant’s omission had caused costs to be incurred by the respondent. [12] On 26 April 2018, Mr Burkitt telephoned my chambers to advise that he had been hospitalised on 1 April 2018 and as such had not complied with the original timetable for -- 2 of 6 -- [2018] FWC 2417 3 filing as directed. Mr Burkitt further advised that he would send an email providing further explanation and corroborating documentation. [13] On 27 April 2018, Mr Burkitt emailed my chambers and the respondent stating that he suffered ‘a severe head injury’ on 1 April 2018, two days before he was due to file his material. Attached to this email was a discharge summary from St Vincent’s Hospital dated 1 April 2018 and a WorkCover NSW – certificate of capacity dated 12 April 2018. [14] The discharge summary relevantly stated that he had presented at the Emergency Department on 1 April 2018 with a ‘SCALP LAC’ and stated that the diagnosis was ‘OPEN WOUNDS, LACERATIONS- HEAD – SCALP, UNCOMPLICATED’. The WorkCover certificate related to the diagnosis of ‘possible carpal tunnel in both hands’ associated with the applicant ‘having to use his mouse more at work, as a result of increased work load’. The certificate stated that he had ‘no current work capacity for any employment from 30/3/2018 to 23/04/2018’. The certificate also noted: ‘Had review Dr Hargreaves on 13/2/18- had to delay next review until 17.4.18 [Alex had a head injury that required hospitalisation].’ [15] Mr Burkitt provided that following chronology in his email: ‘Below is a summary of events. 1. This occurred on the afternoon of this date and I have attached the admission document from Saint Vincent‘s Hospital, where I presented at approximately 6 o’clock. 2. Prior to this, I was preparing the final submission for this matter. 3. The wound to my head required a total of six stitches; on the morning of 3 April, I awoke to find that two of the stitches fell out and I therefore made an emergency visit to Macleay Medical Practice (my GP) - this follows general advice from the hospital, in relation to removal of the stitches in due course. 4. This as I understand it was the deadline for submission. 5. In the attached document from the Emergency Department, crucially, it states that I deny LOC - in this context, this means loss of consciousness. 6. The stitches were subsequently removed by Jeremy Smith (GP) on 12 April. Clearly by this time, the deadline was missed for submitting documents to regarding this matter with Cunningham Lindsey. 7. A few days later on 19 April, I received your email stating that the deadline for submission was indeed yesterday, 26 April. 8. A further point to consider, please, is that I remain signed-off with nil capacity to perform any work or computer related task. This is ultimately determined by my GP, which in turn makes this determination in consultation with the hand specialist and hand therapist. -- 3 of 6 -- [2018] FWC 2417 4 9. This was of course the initial cause of my work related injury, and in my view, played a significant part of my dismissal. 10. The relevance of this is my ability to undertake any computer related task for any significant period of time. This would of course include the submission and response to yourselves and/or JFM Law. Whilst I acknowledge that this response is somewhat late and exceeds the various deadlines, I would of course appreciate your special consideration under somewhat unusual circumstances, especially in view of my ongoing work-related injury.’ [16] On 1 May 2018, following receipt of Mr Burkitt’s email, the respondent sought leave to file brief submissions in response the applicant’s summary of events. On 2 May 2018, I granted leave for the respondent to file the submissions which were attached to the email dated 1 May 2018. The respondent’s submissions in reply took issue with the applicant’s submission that he sustained a ‘severe head injury’ noting that this was inconsistent with the Discharge Summary which described the injury as ‘minor’. The respondent further submitted that the applicant had been on notice since 12 March 2018 of his obligation to submit evidence by 3 April 2018 and accordingly, it is ‘untenable for the Applicant to submit that the injury sustained on 1 April 2018 prevented him from complying’. Further, the respondent submitted that the WorkCover certificate is insufficient evidence to support the applicant’s assertion that he was unable to file evidence with the Fair Work Commission: ‘The WorkCover Certificate is insufficient evidence to support his inability to file his evidence with the FWC, or to notify the FWC of such inability. This is because the WorkCover Certificate provides a restriction whereby the Applicant would require a 10 minute beak every 20 minutes. It is difficult to understand that this single restriction is sufficient basis for the Applicant’s failure to both comply with the directions or to notify the FWC of his inability to do so. … The Applicant’s inability to perform any work or computer related tasks is provided as a reason for being unable to prepare his submissions and respond to the FWC. This is refuted because: (a) there is no foundation to suggest the Applicant’s inability to perform computer related work prevented him from contacting the FWC or his lawyers by way of telephone; and (b) the WorkCover Certificate provided merely states that the Applicant requires rest breaks in relation to work. It does not stat that he could not prepare any material at all.’ Consideration [17] Section 399A of the Act states: ‘399A Dismissing applications -- 4 of 6 -- [2018] FWC 2417 5 (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. 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] It is clear that Mr Burkitt has failed to comply with my direction to file relevant material by 4:00 pm on 3 April 2018. Mr Burkitt also failed to comply with the direction to file submissions outlining why his application should not be dismissed in accordance with s.399A of the Act by 5:00pm on 26 April 2018. [19] Having reviewed Mr Burkitt’s emails dated 27 April 2018 and my chambers’ file note in respect of his telephone call on 26 April 2018, I do not consider that he has provided any reasonable basis for failing to file relevant material on 3 April 2018. [20] I accept the evidence that Mr Burkitt attended St Vincent’s Hospital on 1 April 2018. However, there is no evidence that he was incapacitated or that the injury he sustained was so serious as to render him incapable of contacting my chambers or his then legal representative regarding the 3 April 2018 date for filing. Indeed, Mr Burkitt’s evidence, consistent with the medical report, is that he did not lose consciousness at any time. I accept Mr Burkitt’s evidence that he attended his doctor on 3 and 12 April 2018 seeking medical attention in relation to the injury sustained on 1 April 2018. However, he has not provided a reasonable explanation for why he failed to file his material by 3 April 2018. [21] Having regard to the WorkCover certificate provided by Mr Burkitt, I have formed the view that the certificate is of little assistance to Mr Burkitt. The certificate states that Mr Burkitt was unfit for work from 30 March 2018 to 23 April 2018 due to a medical condition which he had sustained in November 2015 (‘possible carpal tunnel in both hands’). Furthermore, the certificate refers to ‘Overuse of mouse & typing. Needs a 10 minute break every 20 minutes.’ While I accept that Mr Burkitt’s carpal tunnel syndrome may make it difficult for him to prepare material to be filed, it does not render him incapable of complying with the Commission’s directions or at the very least, notifying the Commission of his situation. -- 5 of 6 -- [2018] FWC 2417 6 [22] Mr Burkitt and his legal representative were on notice of the directions as of 12 March 2018. I am satisfied that Mr Burkitt was aware of the directions as the notice of listing and directions were sent by email to the same email address that Mr Burkitt has used to subsequently correspond with my chambers. Furthermore, Mr Burkitt was legally represented until 10 April 2018 when representation was withdrawn due to Mr Burkitt being uncontactable. Based on the submissions and evidence provided, I am not satisfied that Mr Burkitt’s injury sustained on 1 April 2018 is a reasonable basis for failing to comply with my directions. I am also not satisfied that his carpal tunnel syndrome which he suffered from prior to the issuing of those directions is a reasonable basis for failing to comply with the directions. [23] I therefore find that s.399A(1)(b) of the Act is satisfied in this case. Conclusion [24] Pursuant to s.399A(1)(b) of the Act and on application by the respondent, Mr Burkitt’s application for an unfair dismissal remedy is dismissed. The hearing listed on 14 May 2018, will therefore not proceed and will shortly be vacated. SENIOR DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR606694> 1 Frerichs v Videoezy [2013] FWC 9776; Aragon v Aegis Safety Pty Ltd T/A Techinspect [2013] FWC 5993. -- 6 of 6 --