Fair Work Commission|2020-08-10|Before: Deputy President P, Sams AM

The Fair Work Commission refused to dismiss an unfair dismissal claim despite the employee twice failing to attend scheduled conferences. The Commission emphasised that dismissing a case early is a serious step that should only be done cautiously. While the employer argued the employee was wasting time and resources, the Commission accepted the employee's explanations (confusion about timing and phone problems) and noted he had later attended a conference and wanted to continue his case. The Commission warned the employee that further failures to follow directions could lead to dismissal, but allowed the case to proceed to a hearing.

The applicant (Mr Nathan Thomas) is directed to file with the Fair Work Commission, and serve on the respondent, an outline of submissions, witness statements and other documentary material the applicant intends to rely on in opposition to the respondent's jurisdictional objection (regarding the alleged resignation of the applicant) AND the exceptional circumstances for the late lodgement of this application pursuant to s 394(3) in this matter by no later than 4.00pm (AEST) on Monday, 7 September 2020.

The respondent (Highway NN Pty Ltd) is directed to file with the Fair Work Commission, and serve on the applicant, an outline of submissions, witness statements and other documentary material the respondent intends to rely on in reply to the applicant's material by no later than 4.00pm (AEST) on Monday, 14 September 2020.

The matter will be programmed for a hearing which will occur shortly after the above directions have been complied with.

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Nathan Thomas v Highway NN Pty Ltd [2020] FWC 3911 (10 August 2020)

[11] Despite the matter still being at a very preliminary stage, it has some history. The contextual background regarding this application can be summarised as follows. The respondent submits that there have been numerous occasions in which the applicant was well aware of Commission conferences being conducted. On the first two occasions, he was not able to be reached. In any event, even if there were technical difficulties as he alleged, he made no attempt to contact my Chambers to inform the Commission that he was facing difficulties in connecting to the conference. On the other hand, the applicant asserts that he was ready and willing to participate in Commission conferences, and waited for calls from my Associate, which he alleges he never received.

[12] The respondent submits that the Commission should exercise its power under s 399A(1) of the Act to dismiss the applicant's unfair dismissal application on the grounds that he has failed to comply with a direction or order of the Commission, and has failed to provide adequate reasons as to his repeated non-attendance.

[13] The power under s 399A of the Act to dismiss an application is discretionary. The exercise of the power is predicated on the unreasonableness of the conduct of an applicant in relation to three specified circumstances: failing to attend a conference or hearing; failing to comply with a direction or order of the Commission; or in other circumstances (not material to this case), failing to discontinue an application after a settlement agreement has been concluded. The respondent's application under s 399A is based on subsection (1)(a) and in this regard it is asserted that the applicant unreasonably failed to attend two Commission conferences in relation to the application.

[14] Accordingly, s 399A of the Act requires a two-step process; firstly, a finding that one or more of the grounds set out are satisfied and secondly, if so, the consideration as to whether it is appropriate to exercise a discretion to grant the s 399A application and dismiss the unfair dismissal application. It is not in dispute that the applicant failed to attend Commission conferences on two occasions, knowing full well the ramifications of not doing so. Therefore, this decision rests primarily on my discretionary power as to whether I should dismiss this application as a result of the applicant's non-compliance.

[15] It has been long held by the Courts and this Commission that the power to dismiss a substantive application should only be exercised cautiously; see: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8]. This is so because it results in the extinguishment of a party's application, which has been made in order to seek some form of relief, from a beneficial statutory provision. In other words, the application is dismissed before an applicant has had his/her 'day in court'.

[16] In Allen v Army and Air Force Canteen Service [2013] FWC 9209, Senior Deputy President Richards considered the approach to applications made under section 399A of the Act and concluded:

[17] In Viavattene v Health Care Australia [2013] FWCFB 2532, a Full Bench of the Commission said at [39]:

Outcomedefendant

Disposition:

The respondent's application under s 399A(1) to dismiss the applicant's unfair dismissal application was dismissed. The matter was programmed for further directions and hearing on jurisdictional objections.

Nathan Thomas v Highway NN Pty Ltd [2020] FWC 3911

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Nathan Thomas v Highway NN Pty Ltd [2020] FWC 3911 (10 August 2020)

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