Allen v Army and Air Force Canteen Service

[2013] FWC 9209

[2013] FWC 9209

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Lisa Allen
v
Army and Air Force Canteen Service
(U2013/11838)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 28 NOVEMBER 2013

Summary: application under s.399A(1)(b) - dismiss for reasons of non compliance with directions - proper approach - discretionary jurisdiction fettered - statutory focus on unreasonableness of employee’s conduct - no consideration of wider circumstances contemplated - Brodie Hanns principles not appropriate - principles for dismissal under s.587(1) - Re: Sayers - no prejudice or defence against claims needs to be established - conduct of paid agent.

[1] On 24 Jul 2013, Ms Lisa Allen (“the Applicant”) made an application under s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy in relation to the decision by her employer, Army and Air Force Canteen Service (“the Employer”) to terminate her employment.

[2] The Applicant’s employment was terminated on 17 July 2013. There is no question or challenge to the proposition that the Employer at all times was a national system employer and that the application is otherwise within jurisdiction.

[3] The reason for the dismissal arose from circumstances in which the Applicant made a phone call to the Employer’s managing director in the context of a decision having been made to remove mobile phones from the food vans on which the Applicant performed her duties. It appears from the materials before me that the Employer had become aware of “a trail of personal calls” being made on the mobile phones by food van staff.

[4] The Employer contends that the content of that telephone conversation was entirely inappropriate in so far as it was aggressive and included expletives directed personally at the managing director. The Employer’s HR manager appears to have witnessed and overheard the content of the telephone call made to the managing director. The conduct was taken by the Employer to constitute a serious breach of the code of conduct as applied by the Employer.

[5] The Applicant for her part denies any swearing and considers that her approach to the managing director was benign. The Applicant did not wish to reconsider her claims once it was advised that there was a witness to the telephone conversation.

[6] The Applicant was subsequently dismissed for the reasons given above.

Further background: chronology

[7] The Applicant lodged an unfair dismissal application on 24 July 2013.

[8] A conciliation conference was conducted on 10 September 2013, and was unsuccessful in resolving the matter.

[9] Following the conciliation conference, a notice of representative commencing to Act was received from a Mr Amnon Kelemen. Mr Kelemen appears to be the Principal of an entity called Employee Assist, which is an entity that appears to specialise in assisting employees who have been allegedly unfairly dismissed.

[10] On 17 October 2013, directions for arbitration of the application were issued by my Chambers.

[11] Those directions required the Applicant to submit all relevant materials no later than 30 October 2013. Those directions were copied to both the Applicant and Mr Kelemen of Employee Assist.

[12] The Applicant agreed, by way of her evidence, that she was in possession of the directions and understood the timetable therein.

[13] The Applicant’s materials were not received on 30 October 2013 in accordance with the directions.

[14] On 31 October 2013, an e-mail was directed to Mr Kelemen enquiring as to compliance with the directions timetable. An extension of time was provided so that Mr Kelemen and could have until Monday, 4 November 2013 to file the materials as required.

[15] In that correspondence, attention was directed to s.399A of the Act and a copy of those provisions were included in the text of the correspondence.

[16] The next day, 1 November 2013, Mr Kelemen lodged a Form F54, Notice of Representative Ceasing to Act.

[17] Upon receipt of that notice, a copy thereof, along with further correspondence by my Associate, was sent to the Applicant, both by e-mail and by express post surface mail that same day (1 November 2013). The text of the further correspondence is set out in detail further below.

[18] By way of that further correspondence, the Applicant was advised not only that her representative had ceased to act, but that she now had until 8 November 2013 by which to file her materials.

[19] The Applicant received that surface mail (on her evidence) on 4 November 2013. In her evidence the Applicant recalled my Associate as the author of the correspondence.

[20] No materials were forthcoming on 8 November 2013.

[21] Consequently, correspondence was received on that day from the Employer’s representative making an application pursuant to s399A(2) of the Act.

[22] On Monday 11 November 2013, the Applicant forwarded an e-mail to Chambers in the following terms:

I've just gone through my e-mails and noticed that I was supposed to have submitted statements to the court, I was unaware of this and due to computer issues I have only just received this information. I am still eager to pursue this, if you could please let me know what im to do, it is unclear with the e-mails who im supposed to contact Thank you and speak soon Lisa Allen (sic)

[23] On 12 November 2013 the Employer’s representative pressed its application under s.399A of the Act once more.

[24] I convened a directions conference on 12 November 2013 to discuss the situation with the Applicant and the Employer’s representative. On that occasion, there was some tentative exploration of the circumstances along with a discussion about the application that had been made and its implications for the Applicant (including how she would need to defend herself against such an application).

[25] A hearing was conducted on 20 November 2013 and the relevant evidence was adduced by oral examination.

Statutory context

[26] The application before me is one that is agitated by way of s.399A(2) of the Act, which enlivens the jurisdiction of the Commission to exercise its discretion under s.399A(1) of the Act. These provisions provide 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.

[27] The Fair Work Amendment Bill 2012 Explanatory Memorandum provides as follows in respect of the introduction of the new s.399A of the Act:

Part 2 – Power to dismiss applications

Fair Work Act 2009

1. Item 2 inserts a new section 399A to enable the FWC to dismiss an unfair dismissal application where the FWC is satisfied that the applicant has unreasonably:

• failed to attend an FWC conference or hearing relating to the application



• failed to comply with an FWC direction or order relating to the application, or



• failed to discontinue the application after a settlement agreement has been concluded.

2. The power to dismiss an unfair dismissal application in these circumstances is not intended to prevent an applicant from robustly pursuing a legitimate unfair dismissal claim. Rather, the amendment is intended to address the small proportion of applicants who may pursue claims in an improper or unreasonable manner. This amendment responds to Panel recommendation 42.

3. In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant. Examples of when the FWC may exercise its discretion to dismiss an application under these provisions may include where:

• an applicant fails to attend an FWC proceeding relating to the matter without providing prior advice and/or without any reasonable excuse for their failure to attend, or



• an applicant continues to pursue an unfair dismissal application despite a settlement agreement having been concluded by the parties.

4. Note 2 to new subsection 399A(1) draws the reader’s attention to the FWC’s capacity to make an order for costs under new section 400A (explained below) if satisfied that the applicant’s failure caused the other party to the matter to incur costs.

5. New subsection 399A(2) provides that the power to dismiss applications is only exercisable on application by an employer.

6. Subsection 399A(3) and Note 1 to subsection 399A(1) make clear that new section 399A is not intended to limit the FWC’s general power to dismiss applications on grounds such as where the application is frivolous or vexatious or has no reasonable prospects of success under section 587. Similarly, item 3 inserts a note to subsection 587(1) to highlight the FWC’s power to dismiss an unfair dismissal application under new section 399A.

7. Item 1 of Schedule 11 inserts a new Schedule 3 into the FW Act. Item 11 of Schedule 3 provides for these amendments to apply in relation to dismissals that take effect after the commencement of this Part.

[28] I will return to a discussion of the above legislative provisions a little later.

The evidence

[29] The Applicant’s evidence was candidly given.

[30] The Applicant made no contact with her representative from 13 September onwards. Apart from an initial conversation with a representative of Employee Assist, and forwarding the relevant documentation she had at hand, the Applicant did not contact Employee Assist again, and nor, on the Applicant’s evidence, did Employee Assist contact her again.

[31] The Applicant was unaware, she says, that Mr Kelemen/Employee Assist had ceased to Act on her behalf. Employee Assist had not informed her, she claims, of its action in that respect, or its intention to cease to act.

[32] The Applicant only became aware of Employee Assist’s notice of cessation of representation when a copy of that notice was received by her by surface mail from my Chambers on 4 November 2013.

[33] The Applicant claims that she was not able to access e-mails from around 31 October 2013 owing to a problem with her modem, which was not restored until 10 November 2013 (whereupon she discovered she had an email from my Chambers, dated 1 November 2013). The Applicant directed the email set out above to chambers the following day (11 November 2013).

[34] The text of this 1 November email, however, was no different from the hard copy received by surface mail on 4 November 2013.

[35] The Applicant conceded in her evidence that she was aware of the directions timetable and that her materials were due on 30 October 2013.

Consideration

Statutory approach

[36] The discretion vested in the Commission by way of s.399A of the Act is fettered only in so far as it must be exercised on the basis of a judgement as to whether an Applicant had, in the circumstances before the Commission, “unreasonably [...] failed to comply with [a Commission] direction [...] relating to the application.”

[37] Section 399A(1) of the Act focuses the Commission on the circumstances of the Applicant’s conduct for the purposes of the exercise of discretion. The Explanatory Memorandum is consistent with the statutory focus in that it indicates that:

the amendment is intended to address the small proportion of applicants who may pursue claims in an improper or unreasonable manner.

[38] The Explanatory Memorandum further states that:

the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant.

[39] The discretion is not one that should be read as being subject to the scope of considerations as might arise in Brodie Hanns (Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR see pages 299-300) or as are otherwise applicable by statutory direction under s.366 of the Act or s.394(3) of the Act.

[40] Further, it is not to be read into the jurisdiction, for example, that the Commission must establish that the Respondent has been exposed to a prejudice, or in some way disadvantaged or put to cost (though understandably such circumstances may well arise consequentially).

[41] Nor does the Respondent need to possess a defence against the claims as made in the originating application (as is said by the Full Bench in Re: Sayers 1to be required in relation to a dismissal of an application under s.587(1) of the Act, at the Commission’s initiative).

[42] The discretion, therefore, to dismiss an application under s.399A(1) of the Act is exercised subject only to an objective evaluation of the Applicant’s conduct, and more particularly, whether or not that conduct was unreasonable in the circumstances.

[43] It is to that task that I now turn.

Whether the Applicant acted unreasonably

[44] The Applicant did not interact with her representative, Employee Assist, following the initial contact on 13 September 2013. She very much appears to have placed in the hands of her representative responsibility for the entirety of the conduct of the matter.

[45] The Applicant took no steps to ascertain whether there had been compliance with the directions on or after 30 October 2013 (when her materials were due). On her own evidence, the Applicant was cognisant of the directions timetable and the date on which her materials were due. She did not enquire into these matters at the time.

[46] The Applicant claims to have been poorly served by Employee Assist, in that there was no confirmation of its conduct in accordance with the directions timetable, no materials were filed as she was told would be filed, and she was not advised that Employee Assist had filed a notice of ceasing to act as her representative.

[47] But for all of that, the Applicant sat on her hands between 13 September 2013 and 11 November 2013. She made no enquiries into the progress of her application, with her representative or with the Fair Work Commission.

[48] The Applicant knew her materials were due on 30 October 2013, but took no steps to enquire as to whether there had been compliance with that critical step.

[49] The Applicant experienced an internet outage around this time. But given the circumstances, she could have prioritised access to her email through webmail from any other device or location nonetheless, given she had a Telstra Bigpond internet account.

[50] The fact the Applicant did not do so is reflected in her subsequent conduct. The Applicant was apprised by surface mail on 4 November 2013 of the circumstances of her case: her representative had ceased to act and she had until 8 November 2013 to file her materials.

[51] But the Applicant took no steps to comply with those amended directions, or to contact the Commission until 11 November 2013 (the day after her internet was restored). The Applicant could have telephoned the Commission: the details were on the documents she received, by her own account, on 4 November 2013.

[52] I note further in this regard that the Applicant claimed (relevantly) in her email of 11 November 2013 that:

I've just gone through my e-mails and noticed that I was supposed to have submitted statements to the court, I was unaware of this and due to computer issues I have only just received this information.

[53] The Applicant’s email to the Commission claims that the obligation to file only came to her attention because she had “just gone through [her] emails”.

[54] This claim is entirely inconsistent with her evidence as adduced under oath that she received from the Commission express post surface mail correspondence (dated 1 November 2013) on 4 November 2013. That correspondence (to which I have referred above in passing, and which was signed by my Associate) stated (relevantly) as follows:

In regards to the above matter, please [see] the below correspondence and the attached Notice of a Representative Ceasing to Act.

His Honour advises that your immediate response to the correspondence set out below (as initially directed to your then representative) be provided by you by 12 PM on Friday, 8 November 2013.

Should [we] receive no response from you by this time, the Respondent will be at liberty to apply under s.399A of the Fair Work Act 2009, as per the email below dated 31 October 2013.

[55] This correspondence was received by the Applicant on 4 November 2013. The Applicant recalled (by personal name) that she had received this correspondence from my Associate. This means by reasonable inference that the Applicant received the Notice of Ceasing to Act by Employee Assist, as well as the covering email (as set out immediately above).

[56] Demonstrably, the Applicant cannot be said to have only become aware of the circumstances of her case on 11 October 2013, a week later (as she claimed in her email to the Commission of that date).

Conclusion

[57] If the Applicant’s evidence is accepted, she was not well served by her representative, Employee Assist.

[58] But irrespective of this, the Applicant had an obligation herself to diligently pursue her claim and to monitor its progress. She did not do so and sat on her hands for a two-month period, in effect.

[59] The Applicant took no steps at the critical point in the directions timetable (that being 30 October 2013 when her materials were due) to ensure her interests were being pursued. Moreover, she took no steps in a context where she had an understanding of the directions timetable and the critical points in that timetable. The Applicant could have made a telephone call (to either Employee Assist or the Commission). She did not do so. The Applicant could have checked her Telstra Bigpond webmail to access her email, but she took no steps in that regard either.

[60] When the information came before her by courtesy of the Commission on 4 November 2013 that her representative had ceased to Act on her behalf, and that she had about a week in which to submit her materials, she took no steps to meet the amended directions.

[61] Indeed, the Applicant did not contact the Commission until 11 November 2013, after her home internet access was restored (on 10 November 2013).

[62] And then, the information that the Applicant conveyed to the Commission (as set out above) was that she was unaware of the circumstances of her non-compliance and that she had no knowledge of the amended timetable until she had read her emails (that day or the day prior).

[63] I add that even if the Applicant had not been informed (contrary to my finding above) of the amended timetable for submissions (that being 8 November 2013), the Applicant at the very least knew (on 4 November 2013) that her representative had ceased to act for her. But despite this, the Applicant did not take any immediate action at that time to monitor the progress of her application (against the directions timetable about which she was aware).

[64] In my view, the conduct of the Applicant in this matter was unreasonable in the circumstances.

[65] The Applicant’s application under s.394 of the Act must therefore be dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms L. Allen, Applicant

Mr M. Moy, of McCullough Robertson Lawyers, for the Applicant

Hearing details:

Conducted by telephone

2013

20 November

 1   [2011] FWAFB 7498.

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