Fair Work Act 2009

s 394 - Unfair dismissal

Sydney Gay & Lesbian Business Association t/a Sydney Gay & Lesbian Business Association

Application for an unfair dismissal remedy - applicant a volunteer - jurisdictional objection to application - applicant refuses to attend Commission convened conferences - no reasonable explanation for not complying with directions - no medical evidence of any incapacity - applicant refuses to engage with, or correspond with the Commission for many months - failure to prosecute claim with due diligence - no prospects of success - application dismissed for want of prosecution on Commission's own initiative - s 587 of the Act - matter concluded.

[1] On 31 October 2018, Mr Nick Williams (the 'applicant') filed an application, pursuant to s 394 of the Fair Work Act 2009 (the 'Act') in which he sought an unfair dismissal remedy arising from his alleged dismissal by the Sydney Gay & Lesbian Business Association Incorporated (the 'respondent' or 'SGLBA'). The applicant claimed he was employed by the SGLBA from 15 March 2017 to 10 October 2018. In its Form F3 response, the SGLBA said it was a not-for-profit LGBTIQ community organisation run by volunteers, including a volunteer Board of Directors. Further, no employment relationship had, or ever, existed between the applicant and the respondent. He was a volunteer and received no wage or salary. Unsurprisingly, the SGLBA objected to the application on jurisdictional grounds in that there was no employment relationship, and therefore no termination of employment and no dismissal could have occurred, unfair or otherwise. The relevance of reciting this background will become apparent later. It is unnecessary, for the purposes of this decision, to detail the reasons why the applicant was relieved of his volunteer duties, suffice to observe that it related to allegations of inappropriate conduct during a SGLBA function. I obviously make no findings or any comment on these allegations.

[2] In accordance with the Fair Work Commission's (the 'Commission') protocols, the matter was listed for a telephone conciliation with a Commission Conciliator on 22 November 2018. This listing was sought to be rescheduled by the respondent's legal representative, Holman Webb Lawyers. The applicant objected to the adjournment and to the respondent being legally represented. He also challenged the right of Mr Chris Colwell, as the Corporate Governance Director and Public Officer of the respondent, to act for, or instruct the SGLBA, or its lawyers. The matter was adjourned until 29 November 2018. The applicant advised that he declined to participate, as he had been 'advised not to interact with Mr Colwell'. On 28 November 2018, the President of the SGLBA advised that Mr Colwell was authorised to act on behalf of the SGLBA in the matter. I observe that in the ordinary course, a party cannot object to the person/s that has authority to act for, or instruct lawyers on behalf of their party. It is unclear why the applicant believed he could do so, or who had 'advised [him] not to interact with Mr Colwell'. No details were ever provided.

[3] Obviously, the conciliation did not proceed. This triggered the application being referred to me to determine the respondent's jurisdictional objection.

[4] On 3 January 2019, I issued directions and a notice of listing for the jurisdictional objection and listed a further in-person conciliation on 9 January 2019. The applicant failed to attend the 9 January 2019 conciliation. Ms Alicia Mataere, Holman Webb, with Mr Colwell, appeared for the SGLBA. Due to these regrettable circumstances, I had cause to direct my Associate to email the applicant in the following terms:

Your unfair dismissal application was listed for a conference before Deputy President Sams at 10am today. The Deputy President requires a reasonable explanation from you as to your failure to attend the proceeding and your failure to advise of your non attendance prior to the conference. Should the reason be illness, his Honour requires medical evidence confirming that you were unable to attend a conference before the Commission. If you do not provide a reasonable explanation, or do not respond at all to this direction, your application may be dismissed, without any further recourse to you. The Deputy President requires an explanation by no later than COB on Friday 11 January 2019.

Please be aware that the respondent attended the conference with their legal representative. The respondent may now seek costs for their attendance at a conference which could not proceed. An applicant's failure to attend Commission proceedings, without reasonable cause, may be grounds for an order of costs against the applicant to pay the other side's legal costs.

In respect to your application, the Deputy President has considered the material currently before the Commission. Although the Deputy President has formed no final view, it appears your prospects of success may not be strong, given you appear to have been a volunteer. Please see attached two decisions of the Commission where the Commission dismissed unfair dismissal applications on the basis that the applicants were volunteers. In the first, the applicant was a volunteer with the NSW State Emergency Services. In the second, the applicant was an Assistant Coach with the Football Federation Victoria Inc. Both were found to be volunteers and not employees. On that basis, their applications had to be dismissed as access to the unfair dismissal jurisdiction under the Fair Work Act 2009 does not extend to volunteers. The Deputy President encourages you to seek advice on your application in this respect.

If you decide that you no longer wish to press your application, you can withdraw your application by filing the attached form F50.'

[5] The applicant responded the following day and although claiming he had been medically unfit to attend the conciliation and was confused about the process, he provided no medical evidence to establish these claims. My Associate then sent the applicant the following email:

Thank you for the response to His Honour's email of 9 January 2019.

While His Honour accepts and regrets your current circumstances, the fact is you have filed an application for an alleged unfair dismissal and the Fair Work Act 2009 (Cth) requires such matters be dealt with quickly.

His Honour notes that in your email you have not indicated whether you intend to pursue your application, or in light of your current medical condition, you are incapable of doing so at this time, in which case medical evidence will need to be provided.

Further, you have not indicated whether in light of the unfair dismissal decisions, provided to you which are directly relevant to your previous circumstances, you intend to challenge the respondents view that you were not an employee. If you require time for further reflection and/or to seek appropriate advice, His Honour is prepared to allow you that time.

Accordingly, you are directed to respond to His Honours direct questions above by 4:00pm next Wednesday, 16 January 2019.

You are also reminded that all communications you have with His Honour's Chambers must be copied in to the respondent. Please also note that your matter has been allocated by Deputy President Sams and Deputy President Dean has no further involvement in your matter.

[6] An hour later, he replied as follows:

'I DID NOT give you permission to share my personal circumstances with the Respondent (Mr Chris Colwell) who is the subject of investigations & other legal matters. I cannot tell you how this has now impacted my mental health making it 100 times worse. Further to this, I have now made a formal complaint with the Fair Work Commission. Please do not correspond with me any further.' (emphasis in the original)

It must be stated that the Commission did not disclose the applicant's medical circumstances; indeed, there were no medical details to disclose. Nor had the applicant asked for his communications to the Commission not be disclosed to the other side (as is required as a matter of procedural fairness) and about which he was aware.

[7] The applicant did complain about my Associate's forwarding all communications from him to the other side. However, this was on my express instructions, according to the usual protocols. The applicant's complaint was taken up by the Director, Case Management of the Commission who contacted him to explore the issue. For reasons of good taste and because of unsubstantiated allegations being raised by the applicant against the Commission, and others, I will not record here, the notes the Director, Case Management took of their discussion.

[8] On 17 January 2019, I instructed my Associate to advise the applicant as follows:

In view of the applicant's failure to respond to the questions asked in his Honour's email of 11 January 2019 by 4pm yesterday, his Honour has decided to set aside the directions issued on 3 January 2019 and vacate the hearing date listed on 11 February 2019.

His Honour further advises that unless the applicant responds to the questions raised in the email of 11 January 2019, or provides a reasonable explanation, with medical evidence, as to why his is unable to do so, by 4pm on Monday 21 January 2019, his unfair dismissal application may be dismissed without further recourse to the parties, pursuant to s 399A(1)(b) and s 587(1)(c) of the Act, on the Commission's own initiative (s 587(3)(a)).

His Honour can assure the applicant that no personal medical reports or records have been, or would be provided to the respondent, without his express authority.

Shortly after my Associate sent the above email, the applicant indicated that he would not respond to Commission correspondence until his formal complaint was investigated. I am unaware of any formal investigation conducted by any other agency or authority, other than the Director, Case Management's inquiries. In any event, it is not open for an applicant to dictate the case management of their application, merely because there had been a complaint about the Commission.

[9] There was no response from the applicant by 21 January 2019 such as to provide a reasonable explanation, with medical evidence, as to his failure to respond. There has been no communications from him in the five months which followed. Accordingly on 18 June 2019, my Associate sent the applicant the following email:

I refer to the above matter. The Deputy President notes that this matter has been inactive since January 2019, and with no medical evidence as to whether you are fit to prosecute your case. Section 577 of the Fair Work Act 2009 (the 'Act') requires the Commission, in exercising its functions, to act quickly and informally. His Honour notes your last email to Chambers (17 January 2019) advising that you have lodged a 'formal complaint against you' (presumably the Commission) yet the Commission has heard nothing from any agency or body about such a complaint. In any event, the Commission is bound to deal with your matter irrespective of any complaint, unless restrained by a Court. This has not occurred.

Accordingly, His Honour requires you to provide Chambers with an indication as to whether you intend on proceeding with your matter, in which case the matter will then be listed for directions and a subsequent hearing to firstly determine the jurisdictional issues before the Commission (e.g. whether you were a volunteer or an employee of the respondent). You must provide Chambers an indication by no later than 4pm Friday 21 June 2019 as to whether you wish to press your application, or the matter may be dismissed without further recourse to the parties, pursuant to ss 399A(1)(b) and 587(1)(c) of the Fair Work Act, and at the Commission's own initiative (s 587(3)(a)).

Alternatively, if you do not intend on proceeding with your matter, please see attached a Form F50 Notice of Discontinuance, which you will be required to complete in order to close your matter.'

There was no response from the applicant and no communications from him to the point of this decision.

[10] In light of the above narrative, I have decided to dismiss this application, pursuant to s 587 of the Act, on three bases; for want of prosecution, for the applicant's failure to attend conferences conducted by the Commission, and for his persistent failure to comply with the directions of the Commission.

[11] The Commission's powers to dismiss an application are set out generally at s 587 of the Act. I set out the section below:

'SECTION 587

(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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

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

[12] It has been long held by the Courts, Commissions and Tribunals that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so; see: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8]. This is because such a decision 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, in the common vernacular, their 'day in court'.

[13] That being said, s 587 of the Act does not limit the grounds on which the Commission, of its own motion, may dismiss an application. In the present case, the applicant has demonstrated a persistent unwillingness to properly engage with the Commission in respect to his application by failing to attend conferences convened by the Commission, notwithstanding it might well have been in his interests to attend settlement conferences. The applicant has made no attempt to explain his non-attendance, and provided no medical evidence, if this was the reason, despite being warned of the possible consequences. There have been no communications at all from the applicant for over five months. Given this history, I have little confidence that the applicant will, at some future point, seek to properly, or at all, prosecute his claim.

[14] I am reminded of what Kirby J said in Allesch v Maunz (2000) 203 CLR 172. At [35]-[39], His Honour said:

'It is a principle of justice that a decision maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made.

... it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.

Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to Act rationally in their own best interests.' (my emphasis)

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

'[39] It is apparent from the decision subject to appeal that the Commissioner had regard to Sayer v Melsteel, and made her decision following an analysis of the respondent's uncontested evidence, noting that the respondent's sworn statements and submissions contained "substantial arguments in response to the Applicant's contentions". There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended "to ensure that a 'fair go all round' is accorded to both the employer and employee concerned" (s.381).' [endnotes omitted] (My emphasis)

[16] In my assessment, it would be unfair and unreasonable to subject the respondent to further time spent and cost in defending a matter which is not properly, or at all, being prosecuted by the applicant; noting the SGLBA is a not-for-profit community organisation. This is a telling factor in favour of making an order to dismiss this application, given the overarching Object of the Commission's unfair dismissal jurisdiction as set out at 381(2) of the Act which states:

'(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.'

[17] Lastly, it must be observed that the jurisdictional objection of the respondent concerning the status of the applicant, as a volunteer, was almost certainly bound to succeed; see: Grafton v NSW State Emergency Service T/A NSW State Emergency Service [2017] FWC 4057 and Grinholz v Football Federation Victoria Inc [2016] FWC 7976. In these circumstances, the applicant's prospects of success could only be considered as highly unlikely, at best.

[18] In the exercise of my discretion, I dismiss application U2018/11200, pursuant to s 587 of the Act. I so order.

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