Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - failure to comply with directions - application to dismiss pursuant to s.399A - application dismissed.

[1] On 9 October 2018, Mr John Cole (Mr Cole) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Roy Hill Station Pty Ltd T/A Roy Hill Station (Roy Hill Station).

[2] On 18 October 2018, Roy Hill Station lodged a Form F3 Employer Response to the Application, which indicated that Roy Hill Station was a small business for the purposes of the FW Act.

[3] Roy Hill Station raised two jurisdictional objections to the Application. The first of these objections being that Mr Cole was not dismissed. The second objection being that if Mr Cole was dismissed, that the dismissal was consistent with the Small Business Fair Dismissal Code (Jurisdictional Objections).

[4] On 20 November 2018, the parties attended a telephone conciliation with a staff conciliator, but the issues in dispute could not be resolved. The Application was then allocated to Deputy President Binet.

[5] The parties attended a conciliation conference before the Deputy President on 5 December 2018, but the issues in dispute remained unresolved. In light of this the Application was listed for a hearing on 24 January 2019, to determine the Jurisdictional Objections and the merit of the Application.

[6] At the conference Mr Cole was informed that directions would be issued for the filing of submissions and evidence for the hearing and determination of the Application and that he must comply strictly with the deadlines contained in those directions or the Application may be dismissed.

[7] On 12 December 2018, directions outlining dates for the submission of materials by the parties were issued (Directions). The Directions required the parties to file and serve any submissions or evidence on which they sought to rely by 20 December 2018, and any submissions and evidence on which they sought to rely in reply by 10 January 2019.

[8] The parties were advised that in light of the impending Christmas holiday period that they could apply for the Directions to be varied by consent to provide for filing dates after 1 January 2019, provided that all submissions and evidence, including any submissions and evidence in reply were filed by 17 January 2019. The parties were informed that materials must be filed strictly in accordance with the revised filing dates because the Hearing would proceed as listed on 24 January 2019, in order to meet the FWC's timeliness benchmarks set to ensure the FWC discharges its statutory obligation to hear and determine matters expeditiously.

[9] The legal representatives of Roy Hill Station endeavoured to liaise with Mr Cole to agree amended directions however they say Mr Cole failed to return their calls.

[10] In light of this on 18 December 2019, Chambers forwarded a copy of proposed revised directions to Mr Cole seeking his views in relation to the proposed filing schedule.

[11] Mr Cole responded next day stating that:

"It is my intention to comply with the directions as ordered by the Commission."

[12] In light of Mr Cole's response, amended directions were issued to the parties on 19 December 2018, (Amended Directions). The Amended Directions required the parties to file and serve any submissions or evidence on which they sought to rely by close of business on Monday 14 January 2019, and any submissions and evidence on which they sought to rely in reply by close of business on Thursday 17 January 2019.

[13] In accordance with the Amended Directions Roy Hill Station filed in the FWC and served on Mr Cole it submissions and the evidence on which it relied on by close of business on Monday 14 January 2019. No submissions were received by that date from Mr Cole, nor a request for an extension, or any reasons for a delay in filing his materials.

[14] On Tuesday 15 January 2019, Chambers emailed the parties noting that Mr Cole had not filed the materials as required by the Amended Directions. Roy Hill Station was invited to apply by 12 noon on Wednesday 16 January 2019 for the Application to be dismissed (Dismissal Application). Mr Cole was invited to make written submissions in response to the Dismissal Application by noon on Thursday 17 January 2019. The parties were also advised to notify Chambers if they wished to make oral submissions in relation to the Dismissal Application.

[15] Later on Tuesday 15 January 2019, Mr Cole emailed Chambers to advise he did not have legal advice and believed that his materials were due on Thursday 17 January 2019. He also indicated that he wished to make oral submissions.

[16] On Wednesday16 January 2019, Roy Hill Station filed with Chambers and served on Mr Cole an application for the matter to be dismissed pursuant to sections 399A and 587 of the FW Act on the grounds that Mr Cole unreasonably failed to comply with a direction of the FWC when he failed to file his materials in accordance with the Directions.

[17] On Wednesday 16 January 2019, Mr Cole filed his response to the Dismissal Application.

[18] In response to the Dismissal Application Mr Cole submitted that the Application should not be dismissed because his oversight regarding the filing of his materials occurred because his infant son born on 23 November 2018, had been diagnosed with a condition which required surgery and that a 50% drop in income prevented him obtaining legal representation.

[19] In response to a request from Chambers to provide evidence in support of his submissions Mr Cole filed four documents indicating that his son had medical appointments on 21 December 2018, and 9 January 2019, and that a further appointment was scheduled for 23 January 2019. Mr Cole submitted that a further reason for his delay in filing was that his wife had been unable to drive for six weeks following the birth.

[20] During a telephone hearing convened to allow Mr Cole to make oral submissions in relation to the dismissal application he expanded on his reasons for his failure to file his materials by the due date. The additional reasons provided by Mr Cole were that his wife was not working and that he did not intend to delay the proceedings. He also submitted that it would be unfair for the Application to be dismissed given that the Roy Hill had been granted an extension to file its materials in the Amended Directions.

[21] Section 399A of the FW Act provides as follows:

(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."

[22] The reasons provided by Mr Cole for the delay in filing his materials, namely that his wife recently gave birth and that his son was unwell and was required to attend two medical appointments, was known to him in advance of the date that his materials were due. If those events posed a difficulty for him filing his materials he could have informed Chambers in advance of the due date for his materials and sought an extension for the filing of his materials.

[23] Mr Cole was aware since the Conference held on 5 December 2018, that he would be required to prepare and file an outline of submissions, obtain and file witness statements from any witness whose evidence he sought to rely (including his own) and file copies of any documents on which he relied. On 12 December 2018, he was informed in the Directions that those materials were due on or before 20 December 2018. On 19 December 2018, he was informed that both parties had been granted an extension to the close of business on Monday 14 January 2019, to file their materials. Routinely parties in applications of this nature are given only 7 days to prepare and file their materials. Notwithstanding Mr Cole's personal circumstances, more than four weeks ought to have been adequate time for Mr Cole to prepare and file his materials or seek an extension to do so.

[24] Given the income threshold for claims of this nature and the circumstances in which such claims are brought applicants are more commonly than not without legal representation. In light of this, instructions for the preparation and filing of materials are provided by me to parties orally at Conference and subsequently by Chambers in writing, in clear and simple terms. Unlike many of the applicants appearing in this jurisdiction on their own behalf Mr Cole's employment as a personal assistant responsible for the management of Roy Hill's business means that Mr Cole is better placed than many applicants to be able to read and understand the written instructions provided to him in the Directions and Amended Directions.

[25] The extension to the filing of materials granted to Roy Hill in the Amended Directions was provided following an application made to Chambers well in advance of the relevant filing dates and was supported by written submissions. The extension granted to Roy Hill Station was granted only after consultation with Mr Cole and was matched with an equal extension for the filing dates for Mr Cole's materials.

[26] Mr Cole asserts that he had prepared and intended to file his materials on time but that they were not filed by the due date because he misread the due date in the Amended Directions and believed the materials were due by Thursday 17 January 2019. I note that the Amended Directions provided that his materials were due by close of business on Monday 14 January 2019. This is the final time by which the materials were permitted to be filed. His materials could have been filed at any time in the more than four weeks which have elapsed since the Directions were issued.

[27] In the Directions and its attachments Mr Cole was provided with detailed written guidance with respect to the materials required to be filed and their preparation and presentation. The materials filed by Mr Cole in the afternoon of Wednesday 16 January 2019 were clearly prepared at very short notice. The materials consisted of a document of 4 pages described as an 'outline of submissions' and several emails. The materials did not include a witness statement for Mr Cole or any other witness. The materials filed do not support the assertion by Mr Cole that he had prepared his materials and intended to file them on Thursday 17 January 2019. Rather they suggest that he commenced preparing the materials after Roy Hill were invited to make the Dismissal Application.

[28] Based on the material filed by the parties, I am satisfied that Mr Cole has unreasonably failed to comply with directions issued by the FWC in relation to his Application.

[29] On the application of Roy Hill Station and in the exercise of my discretion under section 399A of the FW Act, I have decided to dismiss the Application. An order to this effect [PR703934] will be issued with this decision.

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