Aaron Cullen v AEG Ogden (Convex) Pty Ltd T/A Brisbane Convention & Exhibition Centre

[2019] FWC 6986

[2019] FWC 6986

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Aaron Cullen
v
AEG Ogden (Convex) Pty Ltd T/A Brisbane Convention & Exhibition Centre
(U2019/7051)

DEPUTY PRESIDENT ASBURY BRISBANE, 9 OCTOBER 2019

Application for an unfair dismissal remedy – s. 596 Representation by lawyers and paid agents – Permission for the Respondent to be represented by a paid agent granted – Consideration of application that Commission reallocate the application to another Member.

INTRODUCTION

[1] Mr Aaron Cullen applies to the Fair Work Commission (the Commission) under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by AEG Ogden (Convex) Pty Ltd T/A Brisbane Convention and Exhibition Centre (AEG). On 2 August 2019 a Notice of Listing was issued by the Unfair Dismissals Case Management Team (UDT) for a hearing of the substantive application on 8 and 9 October 2019. The Notice of Listing also required that the parties file and serve material to be relied on at hearing. When the material was received a further Notice of Listing was issued on 12 September 2019 reducing the hearing to one day – 9 October 2019. The matter was allocated to me for hearing in the roster for the week commencing 7 October 2019 in accordance with the usual practice of the Commission’s Unfair Dismissal Case Management Team (UDT).

[2] AEG sought permission under s. 596 of the Act to be represented by Livingstones & SHR Group as a paid agent at the hearing of Mr Cullen’s application. After hearing from the parties at a Mention/Conference held on 26 September 2019 I decided to grant the Respondent permission to be represented by a paid agent. My reasons for making this Decision which were given to the parties orally in the course of the Mention/Conference on 26 September 2019 are set out below. Given the manner in which this matter has evolved from that point, it is also necessary to deal with a number of other matters.

BACKGROUND

[3] Material on the file indicates that when Mr Cullen filed his application on 26 June 2019, he provided a covering email seeking an early hearing of his application so that he could be represented by a friend upon whom he is reliant. In the email Mr Cullen stated that the friend was travelling to Europe on 29 August 2019 and would be in Europe for a ten month period. The email asserted Mr Cullen’s understanding that while there is a backlog of unfair dismissal matters, many are discontinued, and that with a new member commencing in Brisbane that Mr Cullen was confident that his request for an early hearing could be accommodated. That correspondence further stated that Mr Cullen did not wish to participate in conciliation if it would delay the hearing of his application. Notwithstanding that he intended to be represented by a friend the correspondence further indicated that Mr Cullen intended to object to the Respondent being represented by a lawyer or paid agent.

[4] The matter was listed for a conciliation conference before a Fair Work Conciliator on 30 July 2019. The file also contains correspondence indicating that an application by the Applicant for an adjournment of the conciliation conference was refused by the Commission on the basis that the reasons for adjournment were thought to be insufficient. The file further indicates that conciliation was not successful. The Conciliator’s Report indicates that the Applicant stated at the Conference that he would be represented at the hearing of his application. On 2 August 2019 a Notice of Listing was issued by the Commission listing Mr Cullen’s unfair dismissal application for hearing on Tuesday 8 and Wednesday 9 October 2019 in the Brisbane arbitration roster. The Notice of listing required the Applicant and Respondent to respectively file and serve witness statements and outlines of submissions on Monday 26 August and Monday 16 September 2019.

[5] Mr Cullen corresponded with the Commission and provided a submission seeking orders that permission for the Respondent to be represented by a lawyer or paid agent be refused and that the Respondent in the matter not receive assistance from a lawyer or paid agent in respect of any of the representational activities outlined in the Fair Work Commission Rules 2013 at rule 12(1). In correspondence to Mr Cullen dated 13 August 2019, the Acting National Practice Manager for Unfair Dismissals, Deputy President Clancy, advised Mr Cullen that in relation to the first order sought, AEG would be required to seek permission to be represented from the member who would be presiding at the hearing then listed for 8 and 9 October 2019. In relation to the second order, Deputy President Clancy informed Mr Cullen that having considered the five pages of written submissions made by him which were “well formulated, structured and researched” that he was not persuaded to make the second order sought by Mr Cullen.

[6] Mr Cullen was further advised that if he wished to be heard further in relation to any application made by AEG to be represented by a lawyer or paid agent at the hearing on 8 and 9 October 2019 he was invited to confirm this with his case manager so that any such application could be listed for a Mention by the presiding member. A Further Notice of Listing was issued on 2 September 2019 reducing the hearing dates so that the application was to be heard on Wednesday 9 October 2019.

[7] As previously noted the matter was allocated to me for hearing in the Brisbane Arbitration Roster. On Saturday 21 September at 6.56 am, Mr Cullen filed a Form F52 Application for an order for production of documents seeking production of certain documents and CCTV footage. On Tuesday 24 September 2019 I issued a Notice of Listing for a Mention/Conference on 26 September 2019 at 3.00 pm indicating that the file had been allocated to me and that the purpose of the Mention/Conference was to discuss the material filed by both parties and whether the matter could be resolved prior to hearing and to deal with any other outstanding matters. The parties were requested to provide telephone contact details for the Mention/Conference. I did not issue the notice for production of documents filed by Mr Cullen for reasons which I deal with below.

[8] On Wednesday 25 September 2019 at 12.33 am Mr Cullen corresponded with my Associate and advised that he sought the Order for production of documents be issued and the telephone mention/conference be delisted and that a conference be convened in lieu of the hearing listed for 9 October 2019 to discuss the matter by which time production would be effected and the documents considered. The email from Mr Cullen also indicated that he was “not minded” to participate in the telephone conference/mention on 26 September 2019 and expressing the view that the production of the documents sought in his Form F52 application would render a telephone conference/mention on 9 October more fruitful.

[9] On 25 September 2019 I caused my Associate to correspond with the parties by email sent at 10.54 am responding to the Applicant’s email. The response stated that the Form F52 had not been served on the Respondent and that I was not minded to grant the order for production of documents and other records sought by the Applicant at that time. The response sent by my Associate also noted that the application for production had not been properly completed and did not set out the grounds upon which the documents were sought and why they were relevant. The email also advised Mr Cullen that an adjournment of the Mention/Conference would not be granted and that it would proceed to deal with Mr Cullen’s order for production and to deal with the question of whether the Respondent would be granted permission to be represented by a lawyer or paid agent, and that any objection in this regard by Mr Cullen would be dealt with at the conference. Mr Cullen was further advised that the hearing listed for 9 October 2019 would not be adjourned or relisted as a conference and that his request in this regard was refused. At 11.55 am on Wednesday 25 September 2019 Mr Cullen emailed my Chambers advising of his contact number for the Mention/Conference on Thursday 26 September 2019.

[10] On Thursday 26 September 2019 at 1.40 am Mr Cullen sent an email to my Chambers advising that he would attend the conference and objecting to me declining to issue the notice requiring production of documents sought by Mr Cullen. The correspondence indicated that Mr Cullen had been represented throughout the process by his friend who was overseas and provided a number upon which that friend could be contacted. The email also indicated that Mr Cullen had already filed submissions objecting to AEG being represented by a paid agent and that if Mr Cullen’s representative (who was not a paid agent or a lawyer) was not available Mr Cullen would be incapable of proceeding with the Mention/Conference on the grounds that he had been diagnosed with a mental health condition and that his mental health would be exacerbated.

THE DECISION TO GRANT PERMISSION FOR REPRESENTATION

[11] At the commencement of the Mention/Conference on 26 September 2019 Mr Cullen’s representative was unable to be contacted on the number provided by Mr Cullen. Mr Cullen indicated that he was prepared to proceed with the Mention/Conference. In relation to his objection to the Respondent being represented by a paid agent, I confirmed with Mr Cullen that he intended to rely on his detailed written submissions previously considered by Deputy President Clancy and that he had nothing to add to those submissions. AEG sought permission to be represented by Mr Aspromourgos, a paid agent in the employ of Livingstones & SHR Group, who submitted that permission should be granted for the following reasons:

•  The Applicant had indicated that he would be represented at any hearing by a friend;

•  The Applicant’s friend is a former employee of AEG;

•  The Applicant’s friend is legally qualified and was formerly an Associate to a Member of the Queensland Industrial Relations Commission;

•  The Applicant’s friend appeared with him at the conciliation conference conducted on 30 July 2019 and conducted the conference on his behalf;

•  The Applicant’s friend has assisted him to prepare his material in relation to his application and his submissions in opposition to AEG being granted permission to be represented at the hearing;

•  The Applicant has indicated that he has mental health issues;

•  It is clear that the Applicant intends to take issue with a warning that was issued to him in relation to an earlier disciplinary matter which he had previously accepted;

•  The Respondent’s human resources management staff are involved in the substantive matters raised by the Applicant and its Human Resources Director and other senior management staff are witnesses in the proceedings;

•  The substantive application involves a snapchat message sent by the Applicant to a number of work colleagues which caused significant distress to a supervisor to whom it related and thereby the complex issue of out of hours conduct and use of social media arose; and

•  In all of the circumstances it would not be unfair to allow the respondent to be represented and it would allow the matter to be dealt with more efficiently.

[12] AEG also raised the fact that Mr Cullen had not fully complied with the directions for hearing of his unfair dismissal application and the factual matters in dispute were not clear. It was further submitted that the application for production of documents at this stage of the proceedings is unusual and evidences the complexity of the matter. In response to a question from me Mr Aspromourgos indicated that if the Respondent was successful in defending Mr Cullen’s unfair dismissal application it would not seek costs against him and gave an undertaking to that effect.

[13] Mr Cullen did not dispute that he would be represented at the hearing by his friend or that his friend has the qualifications and experience outlined by Mr Aspromourgos. Notwithstanding that his friend is presently overseas Mr Cullen stated that he would be returning for the hearing on 9 October 2019.

[14] Pursuant to section 596 of the Act a person may be represented in a matter before the Commission by a lawyer or paid agent only with permission of the Commission. Section 596 of the Act provides as follows:

“596 Representation by lawyers and paid agents

Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

Note: Circumstances in which the FWC might grant permission for a person to be represented by a lawyer or paid agent include the following:

(a) where a person is from a non-English speaking background or has difficulty reading or writing;

(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.

(3) The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2 3 or 2 6 (which deal with modern awards and minimum wages).

(4) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:

(a) is an employee or officer of the person; or

(b) is an employee or officer of:

(i) an organisation; or

(ii) an association of employers that is not registered under the Registered Organisations Act; or

(iii) a peak council; or

(iv) a bargaining representative;

that is representing the person; or

(c) is a bargaining representative.”

[15] After considering the submissions of the parties I decided to grant the Respondent permission to be represented by a paid agent on the basis that I was satisfied that the application raised issues of some complexity and that it would enable the application to be dealt with more efficiently particularly given the issues that the Applicant has with his former employer and the human resources staff that would otherwise by representing the employer. I also noted that the Human Resources Manager would be a witness in the proceedings.

[16] I further considered that any unfairness to the Applicant was sufficiently ameliorated by the fact that he intended to be represented at the hearing by his friend who has legal qualifications and experience in similar matters before the Queensland Industrial Relations Commission and that the Applicant had either had advice from his friend with respect to material he had already filed or was capable (on the basis of the filed material and correspondence) of advancing his own case with the Commission taking any necessary steps to ensure that he was afforded fairness at the hearing. I provided these reasons to the parties orally at the Mention/Conference and further indicated to Mr Cullen that if his representative was not available for the hearing the matter of representation would not be revisited on the basis that the Respondent was entitled to have certainty in relation to the conduct of its case and in light of the undertaking given that the Respondent would not seek costs against the Applicant if his application was not successful. My reasons for granting permission were conveyed orally to the parties during the Mention/Conference and I indicated that these would be provided in writing in my Decision in relation to the substantive application.

[17] Some discussions then occurred in relation to whether the dispute could be settled between the parties and the Mention/Conference was adjourned until 30 September to enable further consideration of settlement by the parties. When the conference was resumed on 30 September the matter was not settled and I indicated that it remained listed for hearing and that my previous decision in relation to permission for the Respondent to be legally represented would not be revisited. The Respondent also indicated that it opposed the Order for production of documents sought by the Applicant on the grounds of relevance and that the production of the documents would place an undue burden on the Respondent. The two Mention/Conference proceedings were not recorded.

CONDUCT OF THE APPLICANT IN RELATION TO HIS APPLICATION

[18] On 1 October 2019 at 12.26 am, Mr Cullen corresponded with my Chambers requesting transcripts of the Mention/Conference proceedings and advising that as the parties had not reached settlement he pressed his request that the order for production of documents be issued other than a concession that production of the documents in items [3] – [7] of the draft order were not pressed. The Applicant’s email also stated that if clarification was required as to why the documents were sought then he would provide a written explanation by way of email if requested to do so. The email further stated that Mr Cullen would not be represented at the hearing of the substantive application and sought clarification as to whether permission had been granted to the Respondent to be represented by a paid agent and that if leave had been granted requested that written reasons for this be provided. The email concluded with Mr Cullen indicating his willingness to settle the matter for a sum set out in the email. Given that I had provided my reasons for granting permission orally during the Mention/Conference on 26 September 2019 and indicated that I would provide those reasons in writing in my substantive decision I saw no reason to provide written reasons at the request of the Applicant.

[19] In light of the fact that the matter was listed for hearing on 9 October and had been listed for hearing since 2 September 2019, the parties were advised by email sent from my Chambers on Tuesday 1 October at 11.36 am that the matter would be listed for telephone hearing on Thursday 3 October at 1.00 pm to determine outstanding matters in relation to the production of documents. The email stated that the Applicant would be required to address each category of document or record sought by him with respect to relevance to the matters in dispute in the substantive application. The email further stated that the Respondent would be required to respond to the application for production and to explain its objection with respect to each category of document or record sought by the Applicant.

[20] At 8.48 pm on Wednesday 2 October the Applicant sent an email to my chambers stating that his friend would attempt to attend the hearing on Thursday 3 October to speak on his behalf and that his friend could be contacted on the overseas telephone number previously provided. The Applicant’s email concluded by stating that the matter of legal representation would also need to be discussed because the current situation is “untenable and inconsistent with the Fair Work Act.”

[21] At the scheduled commencement time for the hearing my Associate attempted to contact the Applicant’s friend on the overseas telephone number provided by him but was unsuccessful in doing so. The Applicant then informed my Associate that he was not prepared to participate in the hearing. On my instructions, my Associate informed the Applicant that if he did not participate in the hearing I would not issue the orders requiring production of documents sought by him. The Applicant acknowledged receipt of this information and confirmed that he would not participate in the hearing. Accordingly the hearing was not able to proceed. On Thursday 3 October 2019 at 1.43 pm my Associate corresponded with the parties and in accordance with my instructions confirmed that on the basis that the Applicant had not participated in the telephone hearing I would not issue the orders for production of documents sought by him, and that the matter was proceeding to the hearing on 9 October 2019.

[22] On Sunday 6 October at 6.22 pm (prior to a public holiday on Monday 7 October) Mr Cullen sent an email to my Chambers attaching a Decision of a Full Bench of the Commission in CFMMEU v Watpac Construction Pty Ltd T/A Watpac 1. The email stated that Mr Cullen sought that his application for an unfair dismissal remedy be reallocated to another member of the Commission for hearing on the basis of the assertion that I had conducted two “unrecorded conciliation conferences” in which I was privy to offers and counter offers of settlement and that he considered I had indicated that I had formed a view in relation to some matters of Mr Cullen’s conduct. The email went on to state:

“Naturally this process may take some time and thus the hearing date will need to be vacated.

The member who presides over the hearing will have a fresh opportunity to consider the matter of legal representation, assessing for himself or herself whether the current position – an enterprise with 800 employees and a dedicated HR department enjoying paid representation against a 20 year old with no legal or advocacy expertise and a diagnosis of [mental health condition] – is consistent with s. 596 of the Act and relevant case law.”

[23] At 11.58 am on Monday 7 October, correspondence was sent from my Chambers to the Applicant stating that the hearing date on 9 October 2019 would not be vacated and that if I accepted his submission that I should not hear the matter, another Member of the Commission would be available on that date to conduct the hearing.

[24] On Tuesday 8 October at 2.59 pm the Applicant emailed my Chambers requesting that I confirm my position in relation to the reallocation of his application. At 3.32 pm in accordance with my instructions, my Associate responded advising that I was considering my position in relation to the reallocation of the matter and confirming that another Member of the Commission was available to hear it at the listed time of 10 .00 am on Wednesday 9 October if I decided that I would not hear it. The Applicant was further informed that he should be in a position to speak to his email request that I not hear the matter at the listed commencement time of the hearing.

[25] At 3.50 pm on Tuesday 8 October the Applicant corresponded with my Chambers requesting that a definitive answer be provided by me as to whether the matter would be reallocated, and if so, the Member to whom it would be allocated, as soon as possible and before close of business on that day. At 4.18 pm on the same date I caused my Associate to respond advising the Applicant that the hearing would commence at 10.00 am on Wednesday 9 October 2019 and that I would hear his submission at that time as to why I should not hear the matter. The email further advised that if I decided not to hear the matter there was another Member of the Commission available to conduct the hearing and this was as definitive as I intended to be at this stage.

[26] At 5.09 pm on Tuesday 8 October the Applicant lodged a Form F7 Notice of appeal. The covering email sent with the appeal states that: “The hearing of my unfair dismissal application listed for 9 October 2019 will necessarily be stayed until the appeal is determined or finalised.” The Notice of appeal indicates that the decision that is appealed is my decision to grant the Respondent permission to be represented by a paid agent and that the Applicant is seeking a stay of that decision. The email also stated that the Applicant sought an adjournment of the hearing on 9 October 2019 and attached a medical certificate dated 8 October 2019 stating:

“Mr Aaron Cullen suffers with [mental health condition] and he is unable to represent himself in court. He was due to bring a representative to accompany him but the representative has been called away. I would appreciate if you can defer Aaron’s hearing until he can find an alternative representative.”

[27] The Applicant’s email concluded with the statement that he would not be in attendance at the hearing on 9 October 2019. It is apparent that the medical certificate sent by the Applicant in support of his request for an adjournment of his hearing is inconsistent with the factual situation previously asserted by him – that his representative is overseas and has been there since 29 August and that he planned to represent himself at the hearing. There is also some inconsistency between the contents of the medical certificate and the Applicant’s grounds of appeal as set out in the Notice of appeal filed by him at 5.09 pm on Tuesday 8 October – the evening before the hearing which he had persistently sought to have adjourned. Notwithstanding my reservations about the certificate, I directed my Associate to send an email to the parties at 5.56 pm on 8 October 2019 advising that in the circumstances I had no option but to grant an adjournment of the hearing.

[28] In doing so I make the following observations. The Applicant has provided medical evidence in relation to his mental health. I accept that his mental health issues may have impacted his conduct of his application including the timing of his many emails to the Commission. However it is possible that the Applicant is not ignorant of the processes of the Commission as he asserts and is simply attempting to avoid a hearing and to cause the Respondent as much cost and inconvenience as possible in order to induce the Respondent to make a financial settlement with respect to his application.

APPLICATION THAT MEMBER RE-ALLOCATE A MATTER

[29] The Commission is required to act in a manner that gives all parties an opportunity to be heard and to put their positions to the Commission including in relation to procedural applications. The Commission does not generally make decisions about substantive applications or interlocutory applications which could impact on the hearing of substantive applications, simply because a party makes a request by email. As is the case with the majority of matters the Commission deals with, unfair dismissal applications are required to be dealt with in a timely manner, involving as they do, disputed issues of fact, requiring a hearing or determinative conference to be conducted, with the possible outcome of reinstatement or compensation if the applicant is successful.

[30] In dealing with unfair dismissal applications I frequently conduct Mentions, Conferences and other interlocutory proceedings to consider issues that arise out of the material filed by parties in the course of such applications proceeding to hearing and to ensure that hearings proceed in a timely and efficient manner. In conducting Mentions, Conferences and other interlocutory proceedings I may be aware that settlement is being discussed or express a provisional view about the state of the evidentiary material that parties have filed including expressing provisional views in relation to deficiencies or inconsistencies with assertions parties have made in earlier documents filed in the Commission and the repercussions if those assertions are or are not accepted at hearing.

[31] I do not accept that these matters automatically disqualify me from hearing an unfair dismissal application. Further, I do not accept that the decision of a Full Bench of the Commission in CFMMEU v Watpac Construction Pty Ltd T/A Watpac 2(Watpac) requires that I automatically decide not to hear a matter simply because a party objects to me doing so. I also do not accept that the Full Bench Decision in Watpac establishes a process whereby a request directed to a particular Member of the Commission that the Member not hear a matter on the grounds that the member has conciliated the matter or otherwise dealt with it, must automatically be acceded to by the Member to whom it is directed.

[32] Watpac concerned an application under s. 739 of the Act for the Commission to settle a dispute in accordance with a dispute settlement procedure in an enterprise agreement. The dispute settlement procedure – as is common in enterprise agreements – provided for conciliation and then arbitration if conciliation did not resolve the dispute. In short, conciliation was a separate and specified step in the dispute settlement procedure. Conciliation in this context is not necessarily analogous with the Commission making comments of the kind I have referred to above, in proceedings concerning an unfair dismissal application. Observations about conciliation in the context of the facts in Watpac cannot automatically be extrapolated to other matters.

[33] Applications dealing with the broad range of matters within the Commission’s jurisdiction are allocated to Members by the President or by other Members exercising delegated allocation powers. Where a party makes an application seeking that a Member of the Commission to whom a matter has been allocated not hear the matter, the application is considered against long established principles dealing with actual or apprehended bias or on the basis of the requirements of the Act that Members of the Commission deal with all matters within the jurisdiction of the Commission in accordance with equity, good conscience and the substantial merits of the case. The Full Bench in Watpac gathered together the cases in which those principles were established and set out its view about the framework or the circumstances in which Members of the Commission should apply them. That framework is set out in paragraphs [47] and [48] of the Decision as follows:

“[47] In our view, once a party to a dispute objects to a member of the Commission who has been involved in conciliating that dispute from undertaking arbitration, that by itself should generally be enough to persuade the member to arrange for the matter to be reallocated to another member for arbitration. This is particularly the case where the member has participated in private discussions separately with the parties in conciliation, the member has expressed views in conciliation about the merits of the dispute, the member has been made aware of without prejudice settlement offers made in conciliation, or one or more parties have made concessions in conciliation which they are not willing to make in a subsequent arbitration.

[48] This can occur without holding the sort of recusal hearing the Commissioner conducted in this case. We note that such hearings are fraught with difficulty.” 3

[34] The Full Bench in Watpac did not stipulate that a Member who receives an objection or a request that the Member not hear a matter if the Member has conciliated the matter or done any of the things listed in those paragraphs, must comply with the request and seek that the matter be allocated to another Member. The observation of the Full Bench that a Member can cause a file to be reallocated without holding a recusal hearing and that such hearings are fraught with difficulty, is not a binding decision to the effect that applications that Members not hear matters that have been allocated to them should simply be reallocated to another Member as a matter of course, by the Member to whom they are made simply because a party makes an objection to the matter being heard by the original Member to whom it was allocated. The comments of the Full Bench in Watpac also need to be considered in the context of the facts in that case which as previously noted concerned an application to deal with a dispute under s. 739 of the Act.

[35] I view an application that I not deal with a matter that has been allocated to me as a serious application which I am free to determine in the manner I see fit on the basis of my own consideration of equity and good conscience or consistent with well-established principles about recusal, subject of course, to any appeal which an affected party may make. I can do so by requesting that the matter be allocated to another Member or conduct a hearing to determine the matter. In making a decision about whether or not I should deal with or continue to deal with a particular application, and the manner in which I should make such a decision, the point at which the application that I not deal with the matter is made may be relevant. Other relevant considerations may be the availability of another Member of the Commission to hear the application if it is reallocated and the impact of reallocation on the listed hearing dates and the other parties who may have expended cost and time preparing for a hearing which is scheduled at a particular time. Other parties may also have particular reasons for wanting to maintain the original hearing dates such as the availability of witnesses or the fact that arrangements have been made for employees to be absent from the workplace to participate in a listed hearing. It will often be necessary to hear from other parties before deciding whether or not to accede to a request that I not deal further with an application.

[36] Parties in applications allocated to me should not assume that I will automatically comply with a request that I not hear an application, simply because they send an email to my Chambers referring to the Full Bench Decision in Watpac. Parties should also not assume that such requests will result in an adjournment of their application. If I decide to grant such a request – whether by conducting a hearing or because I simply accept in good conscience that it is a valid request – it may be possible that another Member of the Commission can hear the application. This is particularly the case with respect to matters listed in the Brisbane arbitration roster where other Members may also be available to hear a matter that had previously been allocated to me.

[37] In the present case, my provisional view is that the Applicant is attempting to control or influence when and by which Member of the Commission his application is heard or alternatively to defer a hearing to provide leverage for a settlement of his application. These are matters I have been unable to address with the Applicant given his conduct in seeking an adjournment after close of business on the afternoon before the hearing of his application was to be conducted. Another member of the Commission was available at 10.00 am on 9 October 2019 to hear Mr Cullen’s application if this was necessary. There is no requirement that Mr Cullen be informed of the identity of that Member and I do not accept that any party to a proceeding should be allowed to direct the operations of the Commission in the manner that Mr Cullen appears to be attempting.

[38] These considerations have been overtaken by the Applicant’s appeal. In my view it is also arguable that the Respondent should not be held to its undertaking that it not pursue costs against the Applicant and this is a matter that may require further consideration. The Applicant’s unfair dismissal application has been adjourned pending his appeal and any direction for its further conduct that might be made by the Full Bench to whom that matter is allocated.

DEPUTY PRESIDENT

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 1   [2019] FWCFB 3855.

 2   [2019] FWCFB 3855.

 3   Ibid at [47] - [48].