The Applicant states, "Prior to me being made redundant I did have and was in contact with the Ombudsman both in Bunbury at [sic] correspondence via email and phone conversation whilst still being employed at Total Harvesting". It is very likely that during this contact with the Ombudsman that the Applicant was made aware of the 21 day deadline for lodging an application for unfair dismissal with the Commission.

Based on the Applicant's submissions it is unlikely that the Applicant will have the opportunity to seek legal representation with respect to his Application. If the Respondent's application for dismissal is rejected, the Applicant must still satisfy the detailed directions from the Commission contained in the Notice of Listing served on the Applicant in order to respond to the jurisdictional objections filed with the Commission by the Respondent.

The Applicant's submissions do not indicate that the Applicant's current work and/or family commitments are likely to change. If the Respondent's application for dismissal is rejected, it is therefore likely that the Applicant will fail to satisfy the detailed directions from the Commission contained in the Notice of Listing for a second occasion. This will result in the listing of a non-compliance hearing which will result in further costs to the Respondent. The Applicant has had sufficient notice of these requirements and has had sufficient time to obtain legal advice and has failed to do so. The Applicant has failed to provide satisfactory evidence to support the reasons stated for his failure to pursue the Application..."

[18] Having reviewed the correspondence received from both parties, I listed the application pursuant to sections 399A and 587 that Mr Whittaker's unfair dismissal application be dismissed for a telephone mention on 16 March 2018.

[19] At the mention, Mr Whittaker apologised for the lateness of his reply and submitted that it was only after the 21 days had elapsed that he discovered his redundancy was unfair. He also made the allegation that Total Harvesting employed another truck mechanic after his termination and he had witnesses who would attest to this.

[20] Total Harvesting made submissions going to s.587(1)(c), asserting that Mr Whittaker's unfair dismissal application has no reasonable prospects of success due to the termination having been a genuine redundancy that had followed a lengthy process, comprising 5 meetings and numerous telephone conversations. It submitted that Mr Whittaker had acknowledged receipt of his termination letter on the date his redundancy took effect. Further, it responded to Mr Whittaker's allegations regarding a truck mechanic having been employed and stated that while it had hired Mr A Malan since Mr Whittaker's termination, Mr Malan had been engaged at a substantially higher rate of remuneration and was performing the role of maintenance supervisor. Finally, Total Harvesting submitted that Mr Whittaker had failed to particularise the remedy he is seeking but in any event, had destroyed any prospect of being re-engaged due to defamatory remarks and behaviour he had directed towards it.

[21] On application by an employer, the Commission has the discretion to dismiss an unfair dismissal application under s.399A because there has been unreasonable non-compliance with directions of the Commission. The power to dismiss an application if the non-compliance was unreasonable is discretionary.

[22] The relevant Explanatory Memorandum said of the proposed s.399A that the intention of this provision was "to address the small proportion of applicants who may pursue claims in an improper and unreasonable manner. ....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."[2]

[23] Mr Whittaker failed to comply with the requirement of the Commission that he file and serve material. The Commission imposed this requirement so that Mr Whittaker's application for an extension of time for the making of his unfair dismissal could be heard and determined.

[24] The role of case management was discussed by the Full Bench of the Australian Industrial Relations Commission in Ghalloub v Aon Risk Services Australia Limited (Ghalloub)[3]. In summary, that decision outlined the following principles:

1. the starting point of any consideration an application to dismiss is that an applicant is entitled to have his or her case heard;

2. directions play an important role in case management;

3. accepting the importance of case management principles, only in extreme circumstances should a party be shut out from litigating an issue which is fairly arguable;

5. a history of non-compliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period of time is relevant;

6. continuing non-compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.

[25] While not an exhaustive list of matters that may be considered, I will adopt the approach of the Full Bench in Ghalloub, in deciding the application made pursuant to s.399A.

[26] I am not persuaded that Mr Whittaker unreasonably failed to comply with the requirement of the Commission that he file and serve his material by noon on 20 February 2018. I note Mr Whittaker is an unrepresented party and this was the first and thus far only direction of the Commission with which he has not complied. He has to date, no history of non-compliance. Further, while I accept Mr Whittaker's assertions regarding his current employment, work schedule and family health commitments have to date been made without full particulars or supporting evidence, ultimately, he has not evinced an unwillingness to pursue his case. Finally, I am not persuaded that Mr Whittaker's delay in filing has resulted in prejudice to Total Harvesting and nor will it unduly delay the hearing of the jurisdictional objection that has been raised, noting the current 23 March 2018 listing has not yet passed.

[27] However, as a general rule, parties must comply with Directions of the Commission and Mr Whittaker should not assume that non-compliance with directions of the Commission going forward is acceptable. In the event Mr Whittaker needs an extension to file material in the future, he needs to make application for one to the Commission, prior to the date the material is due. Whether any non-compliance is reasonable or unreasonable will depend on the circumstances of each case and Mr Whittaker is now on notice that any future non-compliance on his behalf could have serious consequences.

[28] Principles relating to the Commission's general power to dismiss were helpfully identified by Deputy President Gostencnik in Resta v Myer Pty Ltd[4]:

"[39] The power of the Commission to summarily dismiss an application should be used sparingly and approached with caution. As Barwick CJ observed in General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others,[5] 'the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion'.[6]

'It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance".

As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 where he says (at p.91):

"A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."

Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (at p 84), in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.'[7]"

[29] A review of Mr Whittaker's Form F2-Unfair Dismissal Application suggests that in terms of the merits of his application, he intends to argue that his dismissal was not a case of genuine redundancy and was therefore unfair.[8] Mr Whittaker expanded upon the basis for this assertion in his written submissions filed on 6 March 2018, alleging, amongst other things, a heavy duty mechanic is currently employed by Total Harvesting during the hours he used to work.

[30] In order to proceed with his unfair dismissal application, Mr Whittaker will firstly have to satisfy the Commission there are exceptional circumstances warranting him being granted an extension of time to make it. In terms of the reason for his delay in making it,[9] it would appear that Mr Whittaker intends to assert that it did not become apparent to him that his redundancy was not genuine within the 21 days after his dismissal took effect and that it was only after this that he had become aware another truck mechanic had been hired to work a day shift (the shift he had worked prior to being made redundant).

[31] In his written submissions filed on 6 March 2018, Mr Whittaker put forward further explanations for the delay in filing his unfair dismissal application, which included:

• His current employment, work schedule and health commitments within his immediate family.

• His current employer's strict policy on mobile phone use during work, including break times.

• The lack of mobile service at times and "extreme" difficulty accessing his emails due to internet coverage and work commitments.

• The inability to seek legal representation or get the opportunity to speak to his union representative, due to current work commitments.

[32] Mr Whittaker indicated he would be able to supply medical notes and certificates relating to his health commitments within his immediate family.

[33] Total Harvesting submitted Mr Whittaker's unfair dismissal application is statute-barred, due to it having been filed late[10] and that it has no reasonable prospects of success[11] because of the reasons outlined above at [20]. Further, Total Harvesting submitted Mr Whittaker's unfair dismissal application is vexatious[12] because:

• it has been informed by "at least three independent parties" that since 16 October 2017, Mr Whittaker has made several defamatory statements about it and these have resulted in damage to its reputation and ability to conduct business in Albany, Bunbury and Western Australia as a whole; and

• Mr Whittaker has repeatedly defamed Total Harvesting on social media and despite being issued with two Concerns Notices pursuant to section 14 of the Defamation Act 2005 (WA), many of the social media posts are yet to have been removed.

[34] Having had regard to the material that has been filed and the submissions of the parties, I am not persuaded that I should dismiss Mr Whittaker's unfair dismissal application pursuant to s.587 of the Act. There would seem to be a contest regarding the merits of Mr Whittaker's unfair dismissal application and, to date, Total Harvesting has not submitted it has suffered any prejudice due to his delay. Further, if Mr Whittaker also persuades the Commission that it only became apparent to him that his redundancy was not genuine until some time after his dismissal and this, along with some other factors, provides an acceptable explanation for his delay in both making the unfair dismissal application and taking any other action to dispute it,[13] he may succeed in satisfying the Commission that there are exceptional circumstances that would warrant an extension of time.

[35] Ultimately, I am not persuaded that Mr Whittaker's case for an extension of time is "so obviously untenable that it cannot possibly succeed" or "manifestly groundless", such that he should be deprived of the opportunity to have his application for an extension of time heard and determined by the Commission. The evidence of parties should be tested.

[36] For the reasons given above, I advised the parties on 16 March 2018 that I would not grant Total Harvester's application to dismiss Mr Whittaker's unfair dismissal application. Total Harvester's application made pursuant to both s399A and s.587 of the Act is therefore dismissed and an order giving effect to this decision will be issued shortly.

[37] Further directions for the hearing of Mr Whittaker's application for an extension of time will be sent to the parties and they should be under no illusions as to the importance of compliance.

[1] Section 394(2)(a) of the Fair Work Act 2009.

[2] Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161-163].

[3] Print PR956665, 21 March 2005, Giudice J, Hamilton DP and Larkin C.

[4] [2013] FWC 7080.

[5] [1964] HCA 69; (1964) 112 CLR 125.

[6] [1964] HCA 69; (1964) 112 CLR 125, 128-9.

[7] [1964] HCA 69; (1964) 112 CLR 125, 129-30.

[8] Section 385(d) of the Fair Work Act 2009.

[9] Section 394(3)(a) of the Fair Work Act 2009.

[10] Section 587(1)(a) of the Fair Work Act 2009.

[11] Section 587(1)(c) of the Fair Work Act 2009.

[12] Section 587(1)(b) of the Fair Work Act 2009.

[13] Section 394(3)(c) of the Fair Work Act 2009

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