Adams v Makita (Australia) Pty Ltd
[2022] FedCFamC2G 65
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Adams v Makita (Australia) Pty Ltd [2022] FedCFamC2G 65
File number(s): MLG 458 of 2021 Judgment of: JUDGE SYMONS Date of judgment: 9 February 2022 Catchwords: INDUSTRIAL LAW – Fair work – interim decision – application in a proceeding – whether final hearing should be conducted face to face or electronically – applicant seeking an adjournment of final hearing to proceed face to face – case management and procedural fairness – application dismissed. Legislation: Fair Work Act 2009 (Cth), ss.340, 341, 342
Federal Circuit and Family Court of Australia Act 2021 (Cth), s.190
Public Health and Wellbeing Act 2008 (Vic)Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Brougham v Aboriginal Health Council of South Australia [2021] FCCA 2031
Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486
Desira v Airservices Australia [2020] FCA 818
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
HT v The Queen (2019) 269 CLR 403; [2019] HCA 40Division: Division 2 General Federal Law Number of paragraphs: 39 Date of last submission/s: 7 February 2022 Date of hearing: 7 February 2022 Place: Melbourne Counsel for the Applicant Mr D Langmead Solicitor for the Applicant Access Law Lawyers Counsel for the Respondents Ms V Bulut Solicitor for the Respondent Sparke Helmore Lawyers ORDERS
MLG 458 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMILIA ADAMS
Applicant
AND: MAKITA (AUSTRALIA) PTY LTD
Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
9 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The applicant’s application in a case filed on 28 January 2022 is dismissed.
2.The applicant’s application filed on 16 March 2021 remains listed for final hearing using MS Teams on 23 February 2022 with an estimate of three days.
3.The parties exchange any lists of objections to affidavits and grounds of objection by 18 February 2022 with copies to be sent to the Associate of Judge Symons.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS
INTRODUCTION
These are general protection proceedings arising under the Fair Work Act 2009 (Cth) (“the Act”). The parties concerned remain in dispute and require a final hearing. To this end, the matter is currently listed for a three day hearing commencing on 23 February 2022. The parties have filed their respective material in compliance with court orders, so that, subject to one matter, there is nothing standing in the way of the hearing proceeding on those dates.
The outstanding matter is whether, as the respondents contend, the matter should proceed as programmed on 23 February 2022 and using video-link technology or whether, as the applicant contends, this being the subject of her application in a case filed on 28 January 2022, the matter should be adjourned to a future date in the expectation that by then it can proceed with the parties and their representatives appearing in person.
The applicant, Amilia Adams, was employed by the first respondent, Makita (Australia) Pty Ltd (“Makita”) most recently as a Sales Conversion Representative. She commenced employment on 20 March 2017 and ceased employment, at the initiative of Makita, on 11 December 2020. There is no dispute that the decision of Makita to terminate the applicant’s employment constituted adverse action for the purpose of s 342 of the Act. What is in dispute, as is invariably the case with proceedings brought under the general protection provisions, is the reason why this decision was made.
It is the applicant’s case that Makita dismissed her from employment because she had and had exercised, a workplace right to make a complaint or inquiry about her employment when, on 5 June 2020, she sent an email to the third respondent, Ms Cathy Newell, about the conduct of her supervisor, the fourth respondent, Mr Anthony Azzato. Makita admits that the email was sent and received and that in sending the email, the applicant exercised a workplace right, as that term is defined in s 341(1)(c)(ii) of the Act.
However, Makita’s case – expressed at a level of generality – is that although the email prompted action in the form of a review of the matters raised by the applicant (which Makita found ultimately were not substantiated), it was dissociated from the decision to terminate the applicant’s employment. That decision instead was made because Makita had identified a series of conduct and performance matters (said to involve “serious misconduct”) which made the applicant’s ongoing employment untenable. Makita identifies the decision maker as the second respondent, Mr Andrew Cronin, who occupied then (and now) the position of National Sales Manager.
The applicant, in her originating application and Form 2, filed on 16 and 17 March 2021, respectively, seeks compensation in the amount of $480.85 (referable to lost superannuation payments) and a further $3,000 (referable to the lost opportunity to earn future bonus payments) for the alleged breach of s 340(1)(a) of the Act and pecuniary penalties against Makita and each of the individual respondents, whom the applicant alleges were involved in the contravention. The applicant also seeks damages in the amount of $1,500 for an alleged breach of her employment contract, constituted by a failure to pay her a bonus to which she was (on her case) contractually entitled under a documented “bonus scheme”. Makita resists this claim on the basis, primarily, that the applicant, despite being given the opportunity, failed to provide any supporting documents to substantiate her alleged entitlement to a further bonus payment.
The applicant commenced proceedings in the Melbourne Registry of the Court. She is a resident of Victoria. The applicant’s solicitor and counsel are also based in Melbourne. Makita’s head office is located in Sydney and it has, not surprisingly, retained a solicitor and counsel who are also based in that city. Ms Newell is also based in Sydney and Mr Cronin is based in Brisbane. From the respondents, only Mr Azzato, it would seem is based in Melbourne.
As noted above, all parties have filed materials in anticipation of the final hearing. The applicant has filed three affidavits, including one from a Mr Wilson, and the respondents (none of whom are separately represented) have filed affidavits of the second, third and fourth respondents. The applicant has informed the Court that she will require each of the individual respondents for cross-examination. The trial is likely to take every part of the three days to complete.
THE PARTIES’ SUBMISSIONS
The applicant
In her application in a case, the applicant seeks an order that the hearing of this matter (scheduled for 23-25 February 2022) by MS Teams be adjourned to a date when the Court is able to conduct the proceeding as a face to face trial.
The applicant relies upon two affidavits, both affirmed by the applicant’s solicitor, Mr Gabriel Kuek and filed on 27 January and 4 February 2022 (“first Kuek affidavit” and “second Kuek affidavit”, respectively). In the first Kuek affidavit, it is said (by way of submission rather than evidence), that the conduct of the hearing remotely would result in procedural unfairness to the applicant because:
10.1the operative reasons for the applicant’s dismissal are central;
10.2this is a “complex and nuanced issue” which will require the assessment of the credit of the applicant and the second, third and fourth respondents;
10.3the issues in dispute between the parties are better determined in the context of a conventional face to face hearing;
10.4there is likely to be extensive reference to documents in cross-examination. The conduct of the trial via video link is likely to add to its complexity and length;
10.5the conduct of the trial by MS Teams provides an inferior medium for the determination of the issues.
In her written submissions filed on 3 February 2022, the applicant emphasises the potential procedural unfairness to her as a guiding consideration in her application for an adjournment. The applicant submits that her ability (through counsel) to test the reasons offered by the respondents for her dismissal (which she characterises as involving “fabrication, concoction…exaggerations and mischaracterisations of the facts”) will be compromised if the proceeding does not occur in person. The applicant relies on the decision of Judge Brown of this Court in Brougham v Aboriginal Health Council of South Australia [2021] FCCA 2031 (“Brougham”) and observations made by his Honour including that the identification of the operative reason for dismissal is a “complex and nuanced issue” and one which is “better determined by a conventional face to face hearing rather than by electronic means” (Brougham at [57] and [59]) and that difficulties can arise when the electronic system fails which will potentially increase the expense of the hearing (Brougham at [48]).
The applicant also referred the Court (in her written submissions) to the decision of Perram J in Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 (“Capic”) in which his Honour noted difficulties in relation to cross-examination conducted using video-link technology.
The applicant submits that there is likely to be extensive reference to documents in cross-examination (to be inferred from the large number of documents exhibited to the affidavits filed in the proceeding) which would further complicate and impede the success of a trial conducted virtually.
When the matter came before me on 7 February 2022, Mr Langmead, counsel for the applicant, sought to distinguish the decision of Capic from the present case on the basis that in Capic, the proceeding had been on foot for four years and had, during that period, twice been set down for trial when the adjournment application was considered. Mr Langmead also made the submission that the restrictions in place at the time that Capic was decided (being April 2020) were significantly more onerous than those which apply currently.
Mr Langmead emphasised that in circumstances where the Court would be required to traverse events that took place over many months and to test the evidence of decision makers, the applicant could have no confidence that she would be afforded a proper trial by video-conference technology.
When the different locations of the individual respondents, the respondents’ solicitor and counsel was raised by the Court as a matter that created potential difficulties for an in person hearing, Mr Langmead acknowledged the right of the respondents to appoint solicitors from wherever in Australia they considered appropriate but submitted that this fact should not operate to disadvantage the applicant.
The respondents’ submissions
The respondents submit that the reasons identified by the applicant as to why there should be an adjournment are either without foundation or overstate the facts and in any case, are not compelling and should be rejected.
The respondents accept that the operative reason(s) for the applicant’s dismissal is central to the applicant’s claim but do not embrace the characterisation of this issue as “complex and nuanced” and note that such challenges to the reason for dismissal are “part and parcel” of claims of these type and have been dealt with by the Court using audio-visual means for some time now, seemingly without difficulty.
The respondents likewise accept that the matters raised by the applicant’s claim will require the assessment of the credit of the applicant and the respondents but that this assessment can be undertaken sufficiently by audio-visual technology and that as all witnesses will be giving evidence in the same manner no issue of unfairness in fact arises.
With respect to reference to documents in cross-examination, the respondents note that the extant trial directions (made on 6 May 2021) make provision for the preparation of a hard copy and electronic copy paginated, chronologically ordered court book that will contain “all of the documents required to be referred to in the hearing” and will “alleviate any complexity around cross-examination”.
The respondents refer to the decision of Desira v Airservices Australia [2020] FCA 818 in which both the question of credit and the use of documents in a virtual hearing environment was considered by Davies J, with her Honour concluding that the management of documents could be accommodated and did not justify adjourning the hearing and that the difficulties attending cross-examination of witnesses were not “insurmountable” and likewise, did not make it necessary to adjourn the hearing.
The respondents submit that given the applicants do not propose another day or time for the hearing to be adjourned to, the application is more properly to be understood as an application for a stay which, given the dislocation of the respondents and their legal representatives would be of uncertain duration given the need to accommodate the state of affairs in Victoria, New South Wales and Queensland.
The respondents further submit that the applicant ought to and has failed to explain why her application for an adjournment was made less than four weeks prior to the hearing date.
In oral submissions to the Court, the respondents’ counsel, Ms Bulut, referred to this Court’s “overarching purpose” – reflected in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) – which includes to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible. Ms Bulut submitted that an order vacating the current hearing dates and adjourning the matter for at least a further year would be antithetical to this purpose.
Ms Bulut submitted that questions of fairness needed to be determined not just from the applicant’s perspective but also from that of the respondents. In this respect, the prejudice accruing to each of the individual respondents if the hearing was to be delayed would be substantial, especially in circumstances where the applicant sought pecuniary penalties against each of them. Ms Bulut informed the Court that each of the respondents opposed the application for an adjournment and that if the matter was to proceed using audio-visual technology, arrangements would be made for them to attend and to give evidence from, the office of the respondents’ solicitor, whether based in Melbourne, Sydney or Brisbane.
CONSIDERATION
At the outset I should record that I reject the respondents’ submission that the applicant should be criticised for her delay in making this application. In this regard, I note that the question of what forum or means would be adopted by the Court to conduct the hearing in February 2022 was not finally resolved and communicated to the parties until 20 January 2022, when my chambers informed the parties that the hearing would proceed using Microsoft Teams technology. The applicant waited only four business days before making this application which in the circumstances does not warrant censure. Relatedly, I consider that the failure of the applicant to nominate a date or time frame for an adjourned hearing does not reflect adversely on the applicant. Instead, the open-ended nature of the adjournment request reflected the information provided by the Court concerning the availability of a new hearing date, rather than any reluctance on the part of the applicant to commit to a future listing. In this regard and although her application was not drafted in these terms, the applicant’s counsel indicated that should the Court be so disposed, the applicant would embrace the opportunity to have her matter heard in person in a hearing commencing on 23 February 2022. As I indicate below, I am not minded to make orders accommodating a face to face hearing at this time.
In their submissions on this application, the parties have focused (with different emphasis) on principles of case management and procedural fairness. The two concepts are not mutually exclusive. However in order to determine the application, there is an element of reconciliation required, having regard to how the parties put their respective cases.
Section 190 of the FCFCOA Act provides as follows:
(1)The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
Notes omitted
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court’
(c)the efficient disposal of the Court’s overall caseload;
(d)the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4)The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a)the Rules of Court;
(b)any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
The overarching purpose is intended to inform all procedural decisions made by this Court. However, the circumstances for its engagement arise commonly and starkly in the context of an application for an adjournment. In this context, considerations that transcend the individual parties are engaged because adjournments give rise to delay which impacts not just the parties, but also other court users (Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, [101] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The overarching purpose and its specified objectives must take account of and be responsive to, the environment in which the Court is operating at any given time which includes, relevantly, public health exigencies and developments and changes in technology. This was recognised by Perram J in Capic where, at [19], his Honour observed that the respondent’s submission that there were many authorities in the Federal Court which underscored the unsatisfactory nature of cross-examination by video-link contained statements that “were not made in the present climate, nor were they made with the benefit of seeing cross-examination on platforms such as Microsoft Teams, Zoom or Webex”.
As to the current public health climate, while I accept that conditions appear to have improved somewhat over the last couple of weeks, events of the very recent past serve as a reminder that the situation can rapidly deteriorate and that the environment, including when it involves movement inter-State, is best characterised as uncertain. While workers are not presently prohibited from attending their place of work in Victoria, the “Pandemic (Workplace) Order 2022 (No. 4)” made by the Victorian Minister for Health on 4 February 2022 under the Public Health and Wellbeing Act 2008 (Vic) (“Workplace Order”) has as its objective “to limit the number of Victorians attending work premises to assist in reducing the frequency and scale of outbreaks of COVID-19 in Victorian workplaces and to establish more specific obligations on employers and workers in relation to managing the risks associated with COVID-19 transmission in the work premises”. Likewise, this Court’s Special Measures Information Notice: COVID-19 Hearing Protocol (“Hearing Protocol”) recognises that a matter listed for final hearing will be conducted in-person where the presiding judge considers it appropriate to do so and approval had been granted by the Chief Judge but that it is a matter for each Judge to consider the individual circumstances of the case and decide how best to conduct a fair hearing.
The Hearing Protocol further provides that where a matter is listed for final hearing before an interstate Judge, the final hearing will be conducted electronically unless otherwise approved by the Chief Judge.
Having regard to the sentiments expressed in the Workplace Order and the Hearing Protocol, both of which seek to limit in person gatherings and cross-border movement, as well as the dynamic trajectory of the Omicron variant, I am not satisfied that any hearing on 23 February 2022 should take place in person. To the extent that the applicant invites me to revisit a decision made in January, I decline to do so. However, this does not foreclose the question of whether a just resolution of the dispute can be achieved where the final hearing occurs using audio-visual technology.
The applicant’s concern is that she will be denied procedural fairness if she is required to cross-examine the respondents’ witnesses over MS teams, rather than in a physical court room environment. The applicant submits that the loss of this opportunity is especially acute when the search for the operative reason for her dismissal from Makita is central to the success (or otherwise) of her case. However, beyond the submission that such issues will be “better determined” in the traditional forum, the applicant does not, with any specificity, identify how this sounds in prejudice to the prosecution of her case.
Instead, the central narrative of the applicant’s request for an in person hearing is that because a more ideal form of hearing is (with some limitations) able to be convened and she is being denied this forum (at least for the immediate future), this involves a denial of procedural fairness. However, in the contemporary environment, this is too simplistic a view of the issues at stake.
It is significant that procedural fairness does not have an “immutably fixed content” but “may vary according to the circumstances of particular cases” (HT v The Queen (2019) 269 CLR 403, [18] (Kiefel CJ, Bell and Keane JJ); [64] (Gordon J). Here, those circumstances comprehend the public health environment (referred to at [31]) but also the reality that for in excess of two years now, this Court, practitioners and parties have been successfully running and participating in, virtual hearings. Over that time, there have been advances both in the stability and success of the virtual platforms and the proficiency of those who engage with them. The types of concerns that were identified in some of the earlier decisions have abated or not materialised. It is noteworthy that in Capic, despite expressing some reservations about the technology, Perram J refused an adjournment of a case that was expected to involve 50 witnesses and to run for six weeks (Capic at [18]).
While I accept that questions of credit will assume significance in the hearing and determination of the applicant’s case, I also acknowledge and take account of the caution sounded by the High Court that there are “dangers [in] too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses” and that judges should be encouraged “to limit their reliance on the appearances of witness and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events” (Fox v Percy (2003) 214 CLR 118, [30] and [31] (Gleeson CJ, Gummow and Kirby JJ. This last observation resonates in the present case where the applicant seeks to challenge the stated reasons for dismissal by Makita, having regard to a range of objectively ascertainable matters that, on her case, undermine the plausibility of the reasons given.
In all of these circumstances and where there is no suggestion that the applicant or any witness has any characteristic or attribute that will impede their ability to participate in a virtual hearing and where this mode of hearing will apply, without distinction, to each of the parties, witnesses and representatives, and where the alternative is to postpone the hearing to a future date likely in excess of twelve months from now, the interests of justice will best be accommodated if the matter remains listed for hearing by MS Teams commencing on 23 February 2022.
For these reasons, the applicant’s application in a case filed on 28 January 2022 is dismissed.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Dated: 9 February 2022
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