Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - s.399A application to dismiss - application granted.

[1] Mr Nikhil Arora (Applicant) has made an application to the Fair Work Commission seeking relief from unfair dismissal. The Applicant was employed by Red Energy Pty Ltd T/A Red Energy (Respondent). His employment was terminated on 3 April 2020.

[2] The application was subject to conciliation in the Commission where it did not settle.

[3] Following conciliation directions were issued to the parties requiring that each file and serve submissions and witness evidence in relation to the application. In accordance with these directions the Applicant was required to file his material by 22 June 2020, but he failed to do so.

[4] As a result of his failure to comply with directions the application was listed for a non-compliance hearing. The purpose of such a hearing is to determine if there is good reason for a failure to comply with directions and to determine whether an extension of time to file should be granted or to consider any other relevant application.

[5] The non-compliance hearing was held on 26 June 2020. The Applicant and Respondent both attended. The Applicant provided a credible reason for his failure to file his materials. As a result of this, amended directions were issued which provided that the Applicant should file his materials by 10 July 2020 with an appropriately amended compliance date for the Respondent.

[6] The Applicant, again, failed to comply with directions and, while the Commission indicated a willingness to provide a further, brief extension if the Applicant contacted the Commission, the Applicant failed to do so. The matter was therefore referred to a further non-compliance hearing.

[7] This non-compliance hearing was held on 17 July 2020. The Applicant failed to attend that hearing.

[8] At the non-compliance hearing the Respondent made an application that the unfair dismissal application be dismissed pursuant to s.399A of the Fair Work Act 2009 (FW Act) given the Applicant's failure to comply with directions of the Commission to file his materials in support of his application for relief from unfair dismissal.

[9] On 17 July 2020 the Commission issued a letter to the Applicant which said, in part:

Commissioner Bissett directs you to file with the Commission, and serve on the respondent, submissions providing reasons as to why the Commission should not dismiss your application, evidence or other documentary material you have to support your reasons. For example, if you are or have been unwell, the Commission requires a medical certificate. This material is required by no later than 4:00pm on Friday, 24 July 2020.

[10] On 27 July 2020 the Commission received email correspondence from the Applicant as follows:

I have been unwell and not being able to go to places to gather evidence but as soon as I get better I'll be back on it.

I have been dealing with kidney stones and back problem. I have also seen doctor and chiropractor.

[11] Attached to the email was a chiropractic imaging request dated 10 July 2020 and an ultrasound report dated 27 April 2020.

[12] The email of the Applicant was forwarded to the Respondent without the chiropractic request or imaging report which the Applicant had requested be kept confidential. The Applicant later agreed to the release of these documents to the Respondent.

[13] In a submission in reply to the Respondent's submissions the Applicant said, by email on 31 July 2020, that

I have read the response from the other party. And I am replying you in the time. I have to arrange a lawyer as I was acting on my behalf and need some time to state the reason for being delayed in providing evedences [sic] and need extension to get some more evidence and a lawyer, about 4 weeks. My medical certificates states the reason of me being unwell and you can provide those certificates and my reports to the other party. The only reason for keeping this application is, my case is strong and the evidence what I'll be getting will help in proving. If this time I get delayed for what time I've asked for, I'll be withdrawing my application by myself.

[14] In a further email of 5 August 2020 the Applicant said:

Reasons why my application should not be dismissed-

1. The hearings where I was not present have strong reasons as to why I was unable to attend. Anyone with that medical condition what I had is hardly able to do daily tasks.

2. I am in a process of getting an evidence which is taking long because of this lockdown and now stage 4 causing obstacles because I need to go places and some real estate agents in some towns to get information as they moved out of a property. So a letter needs to be sent to them so they can get in touch with me.

3. Not attending the hearing and getting late in gathering things in this current situation doesn't mean that my case has no power.

4. I understand when a email comes and how it is in a proper format. But getting things done on your own is bit unprofessional so I am also talking to a lawyer who will be helping me in this and may be then things are more clear.

All these reasons have satisfied enough as to why my application should not be dismissed.

[15] The Respondent filed submissions, later amended on receipt of the Applicant's medical documents outlined above. Those submissions were that:

• The Applicant had not advised in advance that he could not comply with the amended directions issued as a result of his first failure to comply with directions;

• The Applicant has not given any detail of how long he has been unwell, provided details of how his medical condition affected his ability to comply, explain why he had not sought an extension of time to file his material or indicate when he would be in a position to file;

• The Applicant has failed to explain how his medical condition has affected his ability to comply with the directions of the Commission.

[16] Further, the Respondent said that the Applicant had failed to comply with the direction as to when he should make his submissions with respect to the s.399A application (being 3 days late).

[17] The Respondent submits that the Applicant's failure to comply with the direction of the Commission has not allowed the application to be heard within the original timetable.

[18] On 6 August 2020, in response to the Applicant's 5 August 2020 email, the Respondent said:

We refer to your correspondence below, and the Applicant's email of 5 August 2020.

In his email correspondence of 27 July 2020, the Applicant's reasons advanced for his non-compliance were that he had "been unwell" and "not being able to go to places to gather evidence". He told the Commission that he had been "dealing with kidney stones and back problems". The Respondent prepared its submissions on the basis that Mr Arora's non-compliance was due to these medical reasons.

- an inability to obtain evidence due to the COVID-19 measures in place; and

- his need to seek legal advice

as additional matters which explain his non-compliance with directions and non-attendance at the compliance hearing.

To the extent that Mr Arora is relying on the above additional matters, and the Commission will be taking those matters into account, the Respondent does wish to be heard.

Otherwise, the Respondent is of the view that the section 399A application can be determined on the basis of the submissions already filed.

[19] Section 399A of the FW Act states that:

(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.

[20] In his submissions in relation to the application under s.399A the Applicant, in the first instance, indicated that he was unwell and that was (presumably) why he had not complied with the directions of the Commission to file his material in relation to his application for unfair dismissal and why his application should not be dismissed. The Applicant did not provide any further information as to why his medical condition limited his ability to comply with directions, why it had stopped him communicating with the Commission or in any way provide an explanation for his failure to comply. A medical certificate alone is not evidence that a failure to comply can be put to a medical condition. The existence of a medical condition is not evidence that the condition caused the non-compliance. Some relationship between the condition and the failure to comply is necessary. In this case none was given.

[21] Alternatively the Applicant said that he had to arrange a lawyer and gather evidence for his case and he needed 4 weeks to do this.

[22] On this second reason for the delay I would note that the Applicant was required, on the amended directions of the Commission issued on 26 June 2020, to provide his evidence and submissions by 10 July 2020 - 2 weeks after the non-compliance hearing and almost 3 weeks before the email of the Applicant of 31 July 2020 in which he indicated he required a further 4 weeks to get a lawyer and gather his material.

[23] In that 5 week period from the date of his non-compliance until 31 July 2020 there is no evidence that the Applicant has taken any action to engage a lawyer or to attempt to put together his evidence and submissions. The Applicant has not provided any material to the Commission beyond the brief emails set out above and his application for unfair dismissal.

[24] The Respondent has objected to the Commission having regard to this second reason for non-compliance by the Applicant on the grounds that he had not advanced it in his first submissions. On its face I do not consider that this reason provides any additional support for the Applicant's non-compliance and can be dismissed without hearing from the Respondent further.

[25] The applicant has provided a number of circumstances that confront him but has not provided any satisfactory reason as to why these have caused delay and his failure to comply with directions of the Commission. The Applicant has not, at any stage, proactively sought any extension to the requirement to file his material or maintained contact with the Commission.

[26] The pattern of failure by the Applicant in relation to the requirement to file his submissions and evidence makes his conduct unreasonable. The Applicant did not file his submissions and evidence in accordance with the amended directions and did not attend the second non-compliance hearing (even though he had received a favourable outcome at the first).

[27] Compounding this is that the Applicant did not make his submissions on the s.399A application on time and did not seek an extension to file submissions prior to the due date. He has provided no explanation for the tardiness of these submissions.

[28] Further, none of the Applicant's explanation go to why he did not file his submissions by the due date on 10 July 2020.

[29] The Applicant has, in this respect, unreasonably failed to comply with a direction of the Commission - in particular the direction that required that he file and serve his submissions and evidence in relation to his application for relief from unfair dismissal by 10 July 2020.

[30] Whilst the Commission appreciates that engagement with the Commission may be daunting for a person representing themselves the Applicant made his application and must be able to progress it. To this end the Commission provides extensive resources to assist parties in putting relevant material before the Commission. However, the imperative that the process of dealing with an unfair dismissal application be quick and flexible and provide for a "fair go all round," suggests that a drawn out process with repeated non-compliance and no indication of when material might be able to be provided is to be avoided unless there is good cause. In this case there is not.

[31] For the reasons given I have decided to grant the application of the Respondent and will dismiss the Applicant's s.394 application pursuant to s.399A(1)(b) of the FW Act.

[32] In doing so I would note that the Applicant also failed to attend the non-compliance hearing on 17 July 2020 without explanation and that this would also support a finding of dismissal of his application pursuant to s.399A(1)(a) of the FW Act.

[33] An order[1] dismissing the application will be issued in conjunction with this decision.

[1] PR721758.

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