s.394 - Unfair dismissal

Unfair dismissal application - non-compliance - jurisdictional objection - applicant not covered by an award - earnings exceed high income threshold - application dismissed - jurisdictional objection upheld - s.587 - dismissing applications - application has no reasonable prospects of success

• [1] Mr Isaac Axford (the Applicant) made an unfair dismissal application on 8 January 2024 under s 394 of the Fair Work Act 2009 (Act). This decision concerns a jurisdictional objection raised by AIC Copper Pty Ltd (the Respondent).

• [2] The Applicant was employed by the Respondent as a shift supervisor. He submits that he was dismissed from his employment on 29 December 2023, and that his dismissal was unfair.

• [3] The Respondent contends that the Applicant was not a person protected from unfair dismissal because he earned more than the high-income threshold and his employment was not covered by an award or enterprise agreement.

• [4] The Applicant contests the company's jurisdictional objection. He contends that his remuneration did not exceed the high-income threshold, and that his employment at the Respondent was covered by the Mining Industry Award 2020 (Award).

• [5] Directions for the application were issued by my chambers on 28 March 2024. They provided for a preliminary case management conference at 10am on 15 Apr 2024. In respect of the jurisdictional objection, they provided:

• The Respondent to file their submissions and witness statements (material) by 4:00pm (AEST) on 4 April 2024;
• The Applicant to file their material by 4:00pm (AEST) on 11 April 2024;
• The Respondent to file any reply material by 4:00pm (AEST) 18 April 2024;
• Legal authorities/witnesses required were to be filed/advised by 4:00pm (AEST) 19 April 2024; and
• A hearing would be listed at 10:00am (AEST) on 26 April 2024.

• [6] In respect of the merits of the matter, they provided for:

• The Applicant to file their material by 4:00pm (AEST) on 3 May 2024;
• The Respondent to file their material by 4:00pm (AEST) on 17 May 2024; and
• The Applicant to file their material in reply by 4:00pm (AEST) on 24 May 2024.
• Legal authorities/witnesses required were to be filed/advised by 4:00pm (AEST) on 27 May 2024; and
• A hearing would be listed at 10:00am (AEST) on 4 June 2024.

• [7] The directions were amended on 2 April 2024 following an adjournment request from the Respondent to provide the parties with a further 4 days for the filing of material. In respect of the jurisdictional objection, they provided for:

• The Respondent to file their submissions and witness statements (material) by 4:00pm (AEST) on 8 April 2024;
• The Applicant to file their material by 4:00pm (AEST) on 15 April 2024;
• The Respondent to file any reply material by 4:00pm (AEST) 22 April 2024;
• Legal authorities/witnesses required were to be filed/advised by 4:00pm (AEST) 23 April 2024; and
• A hearing would be listed at 10:00am (AEST) on 26 April 2024.

• [8] The matter was listed for a conference before me on 15 April 2024. Attempts to resolve the matter were not successful and in preparation for the hearing, the Applicant was reminded at this conference, that his material would be due before 4:00pm AEST that day. The Applicant failed to comply with this direction.

• [9] On 16 April 2024 at 1.50pm, my Chambers wrote to the Applicant and his representative and granted an extension to 4:00pm on 17 April 2024. That email said:

Paragraph [3] of the Directions required you to file your material by no later than 4:00pm (AEST) on 15 April 2024**.** You were reminded of this obligation during the conference yesterday. At the time of writing, no materials have been filed as directed and there has been no request for an extension to file submissions. Accordingly, the Deputy President directs you to provide your material, accompanied by an explanation for your apparent failure to comply with the directions by no later than 4:00pm (AEST) on 17 April 2024.

In the absence of any material filed by you, the matter may be determined without further reference to you. Alternatively, should the Respondent file according to s.399A of the Act, the Deputy President will be required to consider whether the matter be dismissed."

• [10] On 16 April 2024 at 5.56pm, my Chambers received correspondence from the Applicant's representative advising that they no longer acted for the Applicant and requesting all future correspondence be sent to the Applicant directly.

• [11] On 17 April 2024 at 4.34pm, my chambers wrote to the Applicant advising him that I was considering whether his application should be dismissed pursuant to s 587 of the Act and directing him to make contact with chambers providing the material sought and an explanation for his failure to comply with directions, by 4:00pm 18 April 2024. The email said:

It is noted that we did not receive your material in response to our correspondence. It is the Deputy President's current view that your unfair dismissal application should be dismissed under s 587 of the Fair Work Act 2009 (Cth) on the basis that you are not prosecuting your unfair dismissal claim.

If you wish to proceed with your unfair dismissal application, you must make contact with us, providing your material and explanation for your failure to comply, by 4:00pm (AEST/QLD) tomorrow, 18 April 2024. If we do not hear from you by that time, your unfair dismissal application may be dismissed without further notice to you. You may contact us by email (chambers.dobson.dp@fwc.gov.au) or by telephone 07 3028 7805.

I note that if you do not discontinue your application and the Commission dismisses it because you are not pursuing your application, a decision must be published on the Fair Work Commission website.

Alternatively, if you do not wish to proceed with your unfair dismissal application you can inform us, by reply email, that you wish to discontinue your application."

• [12] On 17 April 2024 at 6.18pm, my chambers received the following email from the Applicant, it was not copied to the Respondent:

I.m I couldn't organise a letter or witnesses, statements, due to my Solicitor at the time,resigning from the case on the 16th of April, after our online discussion.

Strategic Lawyers, excuse was that they where not equipped with the right information and researched the wrong issues of unfair dismissal laws.

And not I.m getting nasty emails, from AIC COPPER ELOISE MINE, LAWYERS, demanding, they cost for legal services, and fees.

I was advised by my solicitor, they can't do this."

• [13] On 18 April 2024 at 11.45am, my chambers wrote again to the Applicant, reminding him, inter alia, of the directions he was required to follow:

It is noted that your below email has again not been clearly copied to the Respondent. Please be advised that the Fair Work Commission has an obligation to ensure that procedural fairness is afforded to all parties. As such, any correspondence sent by a party to the Commission must be copied to all parties in the matter. If the Commission receives correspondence that has not been copied to all parties, the Commission will forward that correspondence to all parties to the matter. The Respondent has been copied in by way of service.

Further correspondence sent to Chambers without being copied to the Respondent may not be considered.

You have been asked to advise the Commission whether you intend to proceed with your application. You have failed to do so. You are again asked to advise the Commission whether you intend to do so by 4:00pm AEST this afternoon.

Your material remains due to be filed by 4:00pm AEST this afternoon. There are resources on the Commission website to assist you and these were provided in the first email from chambers. There are also further details about what you need to file contained within the directions.

There is also information about costs applications on the Commission's website. People who incur legal costs in a matter before the Fair Work Commission generally pay their own costs.

The Commission has the discretion to order one party to an unfair dismissal matter to pay the other party's legal or representational costs, but only where the Commission is satisfied the matter was commenced or responded:

• vexatiously or without reasonable cause, or
• with no reasonable prospect of success.

Costs may be awarded to one party if the Commission is satisfied that the costs were incurred as a result of an unreasonable act or omission of the other party.

You should be aware if you fail to respond to the Commission as requested and/or fail to follow the Directions to file your material, particularly given this is the third request and/or extension that you have been given by the Commission, the Deputy President may dismiss your matter without further recourse to you pursuant to s.587 of the Act."

• [14] On 18 April 2024, my chambers received the following response from the Applicant, which was not copied to the Respondent and failed to comply with my directions for the filing of material, stating:

"As I advised Chambers hearing board, that my legal council has,resigned, from representativing me,on this case,due to the fact ,there legal system is no win,no payment,and after them not doing enough research into this matter,of unfair dismissal, bullying, harassment, and discrimination, against me,so they cut there lost,s because there where not a good legal firm,and have left me,hanging.

I think it would be a injustice to me,if I.m force into making a decision without, legal advice from a Lawyer.

I have a meeting with a law firm, on Monday 22 Nd of April. Purcell Taylor Lawyer,s.

I have called, the ombudsman, yesterday and he has advised me to asked for another hearing date, and time for my new legal representation to research, and check any cases to refer,to,and assist with my unfair dismissal claim, or sources, any information reguarding criminal offences in, what AIC COPPER ELOISE MINE, has occurred on me,when I was terminated in front of my work crew and contractors onsite in a pass meeting,and not delt with,straight away,when incident occurred and holding off,for twelve hrs,to shame me in front of all my workforce,

Adam Uren underground manager and Richard Bennett, who are senior managers at AIC ELOISE MINE, have dun this act to show the underground crew of people, that,s how they deal with a personal,,too shame ,embass,and disrespect, a person,in front of a workforce,for alcohol reading of 0.002.mouthwash.and tested 0.00,later."

• [15] On 18 April 2024, following my consideration of the Applicant's correspondence, noting the difficulty he had encountered with his former lawyers ceasing to act and the Applicant having scheduled a meeting with a new lawyer on 22 April 2024, my chambers wrote to the Applicant in the following manner:

It is noted that your email again has not been copied to the Respondent. Further correspondence must be copied to the Respondent.

The Deputy President has already granted two extensions for the filing of your material despite there being no notification whatsoever of the intention not to comply with the initial directions. You have now failed (sic) to comply with the Deputy President's directions on 3 occasions.

The Deputy President will grant a final extension for you to file your material by no later than 12:00pm AEST on 23 April 2024.

The Respondent should file any material in reply to the Applicant's material by no later than 4:00pm AEST on 24 April 2024.

The Hearing will proceed as listed at 10:00am (AEST) on 26 April 2024. The Deputy President has determined that the matter can be heard by Video using Microsoft team. Further information will be contained in a notice of listing.

The Deputy President has determined that the hearing on 26 April 2024 will only deal with whether the Applicant is eligible to apply for a remedy for unfair dismissal. That is, it will only be to determine whether the Applicant's annual salary/remuneration, at the time of dismissal was over the High-Income Threshold and whether the Applicant was covered by an Award/Enterprise Agreement. Any witnesses about the merits of the matter will not be required for this hearing."

• [16] On 18 April 2024, at around 8pm, my chambers received the following correspondence from the Applicant, again not copied to the Respondent:

"I think this is a injustices of your legal system, to me and my new legal team,to be ready for a hearing, with a half days notice,to prepare for a serious injustice to a human being,just because they're a big company and a have millions to back them,and you must understand, being a commission of the legal system, that nobody, can prepare for a video hearing, and sources,evidence, witnesses, with a half days notice ,its being going on for four months now whats another month. .

I will travel to Townsville,tomorrow and logged a stay order ,at Federal court, hopefully this will ,give me time to talk to my new legal team on Monday,and acquired the legal documents and evidence, we need to show cause,and show the discrimination, against high income earns,which you seem to support.

This is a 123 klm trip to lodge this stay order against your set dead line,and hopefully it will be sent to your email address tomorrow afternoon if not Monday afternoon,it should put a delay on your processing,to give my new legal team a chance to prepare, new evidence and previous cases,and ,to lodge evidence, for you too view.

I would just like to say this is a discrimination against a working person, who loses half of his life working a 14/14 roster,650 klms away from family and not been imform of this in there contract when signing on to a company.

Hopefully when I talked to the Current Affairs show tomorrow, I will raise this issue, so they can inform all of the other high income working people, of this looping hole for big companies to treat people, like a number,and dismiss them with no cause.and use double standards,and cover ups.

Hopefully it makes,a few waves, in the mining industry, and get a union started in the metalliferous mining, to prevent, big companies running there own show,and dictating terms to the commission board."

• [17] On 19 April 2024, my chambers wrote to the Applicant again, correcting how much notice had been provided to the Applicant, asking again that correspondence be copied to the Respondent and otherwise as follows:

It is again noted, for the third time, that your email to Chambers has not been copied to the Respondent. Further correspondence must be copied to the Respondent to maintain transparency. To clarify this obligation, it is noted that all correspondence sent to the Chambers of the Deputy President must be simultaneously sent all other parties in the proceeding. All such communication must be undertaken with care to ensure that the impartiality and integrity of the Commission's processes are not undermined (for further information see John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34).

Any correspondence that is not copied to the other party will not form part of the file and will not be provided to the Deputy President.

Parties were informed on 28 March 2024, with about 1 month's notice, that the hearing of the jurisdictional objection would be listed for 10:00am (AEST) on 26 April 2024. Parties were informed of this by way of an email sent that day which also enclosed directions to that effect. A copy of that email is attached.

At this stage, the hearing of solely the Respondent's jurisdictional objection to your application will proceed as listed at 10:00am (AEST) on 26 April 2024, heard by video on Microsoft Teams."

• [18] On Monday 22 April 2024, my chambers received the following correspondence from the Applicant:

Nothink has come through on your behalf, of a email you have sent to,me.on 22/4/2024

I have found a new legal representation, and the should be contacting you and emailing with AIC COPPER ELOISE MINE.Lawyers.

I hope they can help you with this matter, as soon as possible,as they have told me ,they have all time in world they need to settle the matter.'

• [19] On 23 April 2024, the Applicant failed again to comply with my directions or provide an explanation for doing so and further, my Chambers has not received any correspondence from any party on behalf of the Applicant as at the date of this decision.

• [20] After the time had passed for the filing of the Applicant's material, my chambers received an email from the Respondent's representative noting the Applicant's extension/s of time to comply with directions, enquiring whether any material had been filed and advising that in the event there was no response, requesting "that the proceedings be dismissed on the basis that the application has no prospects of success, and due to the Applicant's failure to comply with the Commission's directions, pursuant to sections 399A and 587 of the Fair Work Act 2009 (Cth)."

• [21] Later that day (23 April 2024), my chambers wrote again to the Applicant in the following manner:

"Chambers confirms that the Applicant has not filed any material as directed.

• Directions were issued on 28 March 2024 and amended on 2 April 2024.
• You were reminded during the conference on 15 April 2024, that your material in reply to the Respondent's Jurisdictional Objection material was due that afternoon and you failed to comply with this direction.
• On 16 April 2024, you were granted an extension to file your material until 4:00pm on 17 April 2024, you failed to comply again.
• On 17 April 2024, you were granted an extension until 4:00pm AEST on 18 April 2024 to file your material. You were reminded about this by email on 18 April 2024. You failed to comply with this direction.
• On 18 April 2024, the Deputy President granted you a further extension to file your material by no later than 12:00pm AEST on 23 April 2024. You have again, failed to comply with the Deputy President's directions.

Each of these failures to comply occurred without warning or explanation, save your advice that your representative had resigned, and that you have engaged a new solicitor who has not contacted the Commission.

The Respondent has now formally requested that the Commission dismiss your application pursuant to ss 399A and 587 of the Fair Work Act 2009 (Cth).

The Deputy President directs you to provide your material in relation to the Jurisdictional Objection and the reasons why your application should not be dismissed by no later than 5:00pm AEST tomorrow 24 April 2024.

In the absence of a response from you, the Deputy President intends to make a decision on your matter. Any decision by the Commission in relation to your matter must be published Commission's public website."

• [22] The Respondent's jurisdictional objection was listed before me on 26 April 2024. We did not receive any communication from the Applicant and the matter proceeded as listed. The Respondent sought to be represented by KHQ Lawyers. The Applicant failed to attend. My chambers attempted to contact the Applicant by phone thrice, by text message and by leaving a voicemail message. None of the calls were answered nor the messages responded to. In the proceeding, the Respondent again pushed that the matter be dismissed in accordance with their earlier request. At 10.27am the hearing was adjourned due to the failure of the Applicant to attend.

• [23] Later that morning, at 10.40am, my chambers received the following email:

I,m at a family funeral, in charters towers, and if you keep hassling me,while I.m, grieving and attending this funeral, I will pass on the hassling phones and emails to the proper legal system.

If you want do some research, into this,and get back to me,"

• [24] The Applicant failed to advise of his intention not to attend the hearing and nor did the Applicant provide any material in support of his claim that he was attending a family funeral. Further, the Applicant threatened my chambers with legal action for harassment and despite numerous reminders to do so, the email was not copied to the Respondent.

• [25] A short time later, at 10.45am, my chambers received another email that said:

(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

(c) the application has no reasonable prospects of success.

(2) Despite paragraphs (1)(b) and (c), FWC must not dismiss an application under section 365 or 773 on the ground that the application:

REASONABLE PROSPECTS OF SUCCESS - JURISDICTIONAL OBJECTION

• [27] Having considered the material provided by the parties to the Commission in respect of the Respondent's jurisdictional objection, I turn my mind to the relevant issues. I note that the parties did not get an opportunity to put their material into evidence as a result of the Applicant's failure to attend the hearing of this matter. In that respect I note that the Commission is not strictly bound by the rules of evidence.[1], In any event, the Commission's powers to dismiss under s.587 are not limited in this respect.

• [28] With effect from 1 July 2023, the high-income threshold referred to in s.382(b)(iii) of the Act is $167,500. On the basis of the material before me, I am satisfied that the Applicant was employed on a base salary of $180,000 and therefore the Applicant is engaged over the high-income threshold.

Covered by a Modern Award or Enterprise Agreement

• [29] In his application, the Applicant contends that he was covered by the Mining Industry Award 2020 [MA000011] (the Mining Award) and as a result of s.382(b)(i) of the Act he is a person protected from unfair dismissal.

• [30] It was uncontested that no Enterprise Agreement applied. The Applicant contended in his application[2] that his work falls within the Mining Award classification structure.

• [31] Based on the information before me, including the contract of employment showing the Applicant's engagement as a "Shift Supervisor"[3] the lengthy and comprehensive position description,[4] and witness statements,[5] I am satisfied that the Applicant was employed at a Supervisory level, as opposed to undertaking maintenance work and providing some supervision.

• [32] There are a number of decisions of the Commission which confirm that the classification structure in the Mining Award does not cover Supervisory roles, the most recent being Nigel Scarborough v Sandfire Resources NL T/A Sandfire Resources NL.[6] Others include, Fry v BHP Billiton Minerals Pty Ltd T/A BHP Billiton[7] where Senior Deputy President Richards found that the reference to 'providing guidance and assistance to others' at Level 4 and Level 5 of the classification structure is not to be taken to be a reference to employees of such seniority that their positions are for the principal purpose of providing supervision, as well as McMillan and Norman v Northern Project Contracting T/A NPC[8] where Commissioner Gay found that a genuine supervisor is not covered by the Mining Award, which was endorsed in Suleski v Rio Tinto Iron Ore Dampier,[9] a decision of Deputy President Gooley.

• [33] In light of my finding that the Applicant is engaged on a salary that exceeds the high-income threshold and that the Applicant's role does not fall within an Award or an Enterprise Agreement, it appears that the Applicant is not a person protected from unfair dismissal and is not entitled to make an unfair dismissal application. On that basis, I am satisfied that the application has no reasonable prospects of success.

• [34] In the alternative, I note that the words, "W_ithout limiting when FWC may dismiss an application_" at the commencement of s.587(1) of the Act, establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

• [35] In the present circumstances, should it have become necessary to do so, I would have otherwise decided that I would dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

• [36] The Applicant's application for the Commission to deal with a dismissal dispute is therefore dismissed.

[1] Fair Work Act 2009 (Cth) Qld s.591.

[5] Digital Court Book p.29-33 and p.34-54.

[6] Nigel Scarborough v Sandfire Resources NL T/A Sandfire Resources NL [2017] FWC 947.

[7] Fry v BHP Billiton Minerals Pty Ltd T/A BHP Billiton [2011] FWA 6927.

[8] McMillan and Norman v Northern Project Contracting T/A NPC [2012] FWA 7049.

[9] Suleski v Rio Tinto Iron Ore Dampier [2015] FWC 1663.

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