1
Fair Work Act 2009
s.394—Unfair dismissal
Mr John Cole
v
Roy Hill Station Pty Ltd T/A Roy Hill Station
(U2018/10397)
DEPUTY PRESIDENT BINET PERTH, 18 JANUARY 2019
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.
[2019] FWC 281 [Note: This decision and the associated order has been
quashed - refer to Full Bench decision dated 3 May 2019 [2019] FWCFB
2925]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/awardsandorders/html/pr703934.htm
[2019] FWC 281
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[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
[2019] FWC 281
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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.
[2019] FWC 281
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[21] Section 399A of the FW Act provides as follows:
“399A Dismissing applications
(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
[2019] FWC 281
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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.
DEPUTY PRESIDENT
THE SEAL OF THE FAIT SEAL OF LIA WORK COMMISSION
[2019] FWC 281
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Printed by authority of the Commonwealth Government Printer
PR703935
