Anita Shankar v Fairmont Resort & Spa
[2020] FWCFB 7044
•24 DECEMBER 2020
| [2020] FWCFB 7044 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Anita Shankar
v
Fairmont Resort & Spa
(C2020/7794)
VICE PRESIDENT CATANZARITI | SYDNEY, 24 DECEMBER 2020 |
Appeal against decision [2020] FWC 5218 of Deputy President Cross at Sydney on 29 September 2020 in matter number U2020/3913 – Appellant’s failure to attend proceedings or comply with the Commission’s directions – permission to appeal refused.
[1] The employment of Ms Anita Shankar (the Appellant) with Fairmont Resort and Spa (the Respondent) was terminated on 26 March 2020. She subsequently lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the FW Act). The application was lodged on 31 March 2020.
[2] On 12 August 2020, the Respondent made an application to the Fair Work Commission (the Commission) pursuant to s.399A(1)(b) of the Fair Work Act 2009 (Cth) (FW Act) for the dismissal of the unfair dismissal remedy application made by Ms Shankar. In a decision issued on 29 September 2020, the Deputy President made a decision dismissing the application pursuant to s.399A(1)(b). Ms Shankar has lodged an appeal against that decision and order and that is the matter before us.
[3] The Appellant did not attend the hearing of her application for permission to appeal on 30 November 2020, despite being properly notified in advance of the hearing. Attempts by the Commission to contact the Appellant on the day of the hearing were unsuccessful. A short hearing took place. The Respondent did not make wish to make oral submissions, and the Commission in those circumstances indicated that the matter would be determined on the material filed.
[4] In the circumstances described, it has been necessary for us to determine the matter on the basis of the Appellant’s notice of appeal. The Appellant did not make any other written submissions, despite being reminded by the Commission that they were overdue and being provided with an extension. The Respondent made written submissions and we have also taken them into account.
[5] Section 399A is contained within Part 3-2 of the FW Act. Section 400 of the FW Act, which is also contained within Part 3-2, provides as follows:
“400 Appeal rights
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”
[6] In Coal & Allied Mining Services Pty Ltd v Lawler and others, 1 Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one’.2 The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so.’
[7] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 3 In GlaxoSmithKline Australia Pty Ltd v Makin,4 a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 5
[8] The Deputy President’s reasons for decision are extensive and for the most part set out the chronology of the proceedings before the Commission. A summary the chronology as set out by the Deputy President is as follows.
[9] On 7 May the parties participated in a telephone conference and the matter did not resolve.
[10] On 11 June, the Deputy President conducted a conciliation and directions hearing. The matter did not resolve, and directions were set for filing of materials (the 11 June directions). The 11 June directions included an information sheet on how to prepare for hearing. The Appellant was to file materials by 2 July 2020.
[11] On 1 July, the day before the Appellant was due to file submissions in accordance with the 11 June directions, the Appellant’s representative, Mr Sabeto, wrote to the Commission seeking a relisting to an unspecified later date and for the same later date to apply to the requirement to file submissions. The basis for the request was that Mr Sabeto and Ms Shankar had both “suffered losses in our families close together” and required time to grieve.
[12] In response and over objection from the Respondent, the Deputy President varied the directions to allow the Appellant to file materials by one week, until 9 July 2020.
[13] On 12 July (3 days after the date the Appellant was required to file in accordance with the amended directions) the Appellant filed material which the Deputy President observed included no witness statements or “arguably even submissions”.
[14] On 14 July the Respondent emailed the Appellant and Mr Sabeto raising non-compliance with the directions as amended. In short, the Respondent complained that they were prejudiced in circumstances where no evidence had been filed in support of the unfair dismissal application and consequently did not know the case it had to meet. The Respondent put the Appellant on notice that if the relevant materials were not filed by 15 July an application to dismiss the application would be made.
[15] On 21 July the Deputy President relisted the matter for a directions hearing at the request of the Respondent. The Deputy President noted that he specifically directed the Appellant at that hearing as to what was required of them by way of witness statements and submissions. The Deputy President also further amended the directions to allow the Appellant to file materials by 30 July 2020 with all other filing dates and hearing dates being further extended to accommodate the change.
[16] On 27 July, 3 days before the Appellant was due to file materials on the date that had by now been extended on two occasions, the Appellant’s representative, Mr Sabeto, sent the following email to the Respondent and the Deputy President’s chambers:
“Hi all,
We agree ,
I am no longer Anita’s representative, so as youstate it’s only f”air” for Miss Shankar if this case is adjourned to give Miss Shankar time to engage a real solicitor , also given the fact that your case must be rock solid for you to be so considerate to n wishing Miss Shankar have a fair hearing
So Miss Shankar is seeking an adjournment so she can engage an excellent industrial relations law firm to win her case.
All documents and witnesses subpoenaed are still required , and a new sett of dates for hearings also.”
(Original text retained)
[17] In response to this, and with the consent of the Respondent, the Deputy President again extended the date for the Appellant to file materials to 5 August 2020. The already amended hearing dates were maintained. Notwithstanding that the Deputy President extended the deadline for filing, Mr Sabeto continued to email the Deputy President and disputed whether the one week extension that had been provided was sufficient, sought a further adjournment and referred to lodging a “formal complaint”. The Deputy President responded advising that the request for a further adjournment was denied and advised Mr Sabeto of the Commission’s procedure for making complaints including a link to the relevant part of the Commission’s website.
[18] On 5 August the Appellant filed a document titled “Applicants outline of submissions”. The Deputy President included the full text of that submission in the decision at paragraph [17]. That document essentially sets out a series of questions that the Appellant intended to ask various witnesses including unnamed “work colleagues”. There is also a list of headings of documentary evidence to be relied on, but the actual documents were not provided. Notably, there is no witness statement from the Appellant herself nor any other material that could be considered to be submissions. Having considered that material, the Deputy President observed as he did in respect to the materials filed on 5 August 2020 that there were no witness statement or arguably even submissions.
[19] On 12 August the Respondent filed an application, which was amended on 28 August, for the application to be dismissed pursuant to s.399A. The Deputy President listed the s.399A application for a directions hearing on 17 August 2020 and vacated the earlier directions. Those directions required the Appellant to file materials in response to the s.399A application by 21 August. The Appellant did not file any materials by that date.
[20] On 24 August the Deputy President emailed the Appellant advising that his chambers was yet to receive any materials in accordance with the directions. There was no contact from the Appellant until 2 September 2020 when the Appellant sent an email seeking the matter be rescheduled “…to a later date no sooner that November”. The grounds for seeking the extension were that Mr Sabeto was away on family business and family members were experiencing serious health issues which was consuming “all of our time” at that stage. The Deputy President refused to grant the adjournment request. Two further requests by email were made by the Appellant who sought that they remain confidential, and the Deputy President appears to have agreed to that request. In any event, the Deputy President denied all of the adjournment requests. The Deputy President sought that the Appellant attend the hearing either in person or by telephone.
[21] The hearing apparently proceeded on 3 September however neither the Appellant nor Mr Sabeto were in attendance, nor was the Deputy President able to contact the Appellant by telephone. At the conclusion of the hearing the Deputy President sent an email to the Appellant providing a further opportunity to the Appellant to make written submissions in response to the s.399A application. The Appellant was advised that if submissions were made that referred to factual matters such as “losses within families” that documentary evidence of those matters should be included. The Appellant was provided with the transcript of the hearing. Submissions in response to the s.399A application were to be provided by 18 September 2020.
[22] The Appellant on 18 September provided witness statements of the Appellant and Mr Sabeto together with other evidence to be relied on by the Appellant in support of the merits of her unfair dismissal application. The Deputy President notes in his decision that these submissions were not responsive to the s.399A application.
[23] In determining the matter against this rather extensive chronology, the Deputy President after setting out the legislative framework and relevant principles determined in summary, that:
• The failure of the Appellant to comply with the 11 June directions (amended on 2 July) by filing 3 days late and not including witness statements or “arguably even submissions” was unreasonable because there had been clear guidance given as to what was required and she was represented at that time by Mr Sabeto who the Deputy President observed had outlined his experience as being that of someone knowledgeable of tribunal proceedings.
• The failure of the Appellant to comply with the 21 July directions as amended by the 28 July directions because the 5 August submission contained no witness statement nor arguably even submissions. The Deputy President found this was unreasonable because at the hearing on 21 July, the Appellant was specifically directed by the Deputy President as to what was required to comply with the directions and Mr Sabeto, while stating that he was no longer the Appellant’s representative, continued to correspond with the Deputy President’s chambers on the Appellant’s behalf, meaning that the Appellant could not be characterised as a self-represented litigant.
• The failure of the Appellant to file material responsive to the s.399A application was unreasonable as the Deputy President made it clear at the 17 August hearing that the earlier directions were vacated and the Commission was now dealing with the s.399A application. The Deputy President’s chambers pursued the Appellant when she failed to file materials by the deadline, providing a further opportunity. However, nothing was filed by the Appellant responsive to the s.399A application.
• The failure of the Appellant to attend the 3 September hearing was unreasonable because among other things, accommodation was made for the Appellant to attend by telephone if required and that the Appellant has failed to substantiate any basis for the adjournment requests made.
[24] The Appellant did not file written submissions in the appeal in accordance with the directions and as noted earlier, failed to attend the Appeal hearing. In the event we have considered the Appellant’s grounds of appeal as set out in the notice of appeal. In summary these are:
• That the Appellant has a more than arguable case on the merits of her unfair dismissal claim.
• That the Appellant did not, as asserted by the Deputy President, simply ignore the directions as they had contacted the Commission explaining her family and personal issues and the effect they were having. However, “no quarter was given other than a break a week here 2 weeks there.”
• The Appellant was under pressure from the Commission and from “diagnosed psychological illnesses.” This made it impossible for herself or her representative to effectively defend the unfair dismissal.
• That the Appellant never refused or failed to appear as the Appellant was suffering from “extreme personal and family issues requiring my complete attention.” Further that the Commission did not show any compassion for the Appellant’s circumstances.
• The Appellant was never unwilling to be ready and would not have made the application in the first place if was going to be unwilling to prove it was an unfair dismissal.
• There were no deliberate, pre-meditated, avoidable delays on behalf of the Appellant. The Appellant submits that there should have been consent to the first request to have the matter adjourned “until my personal life and psychological heath allowed me the required time to run my case.”
[25] As to the public interest, the Appellant submitted as follows:
“(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party ) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection
a) There was no unreasonable act committed there were unavoidable occurrences that should in no way effect a worker who was unfairly and unreasonably dismissed from having equal and fair opportunity to present their case to the commission, and if personal family matters have the potential to effect the preparation, presenting of documents, preparation of “the case” they need to be taken into account.
b) The psychological stress of extreme personal issues definitely places any applicant at an unfair advantage should any requests for adjournments be denied
c) Continued badgering and belittling by any law firm directed at an applicant and or their representation during this time should be deemed as harassment and extremely poor unprofessional behaviour ( and should be addressed by the commission )
d) Showing compassion rather than aggression to applicants to the commission during situations such as mine should be forefront rather than attacking applicants for being late with a document? Especially when the respondents case provided no evidence whatsoever.”
(Original text retained)
[26] Section 399A of the FW Act is 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.
…
(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] A Full Bench of the Commission in Granas v Berkley Challenge set out the approach to dealing with s.399A as follows: 6
“In Mihajlovic v Lifeline Macarthur, 7 a Full Bench of the Commission pointed out the following about the use of the word ‘may’ in a statute:
“Section 33(2A) of the Acts Interpretation Act 1901 (Cth) provides:
‘(2A) Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word may is used, the act or thing may be done at the discretion of the person, court or body.’
Section 40A of the [FW] Act provides that the Acts Interpretation Act as in force on 25 June 2009 applies to the [FW] Act, but that amendments after that date do not. Section 33(2A) came into effect on 18 December 1987, and therefore applies to the [FW] Act. Under s 2 of the Acts Interpretation Act, that Act applies inter alia to all Commonwealth Acts unless an Act is subject to a contrary intention”. 8
[28] The Explanatory Memorandum to the Fair Work Amendment Bill 2012 (Cth) in respect of now s.399A said:
“161. 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.
162. 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.
163. 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.
164. 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.”
165. New subsection 399A(2) provides that the power to dismiss applications is only exercisable on application by an employer.
166. 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.
167. 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.”
[29] Since the Explanatory Memorandum refers to now s.399A ‘enabling’ the Commission to dismiss a unfair dismissal remedy application, we do not consider s.399A is within the category of statutory provisions where the word ‘may’ is to be read as ‘must’.
[30] The discretion to dismiss an application under s.399A is only enlivened if the Commission is satisfied that the Applicant has unreasonably failed to do one of the things referred to in s.399A(1)(a), (b) or (c). Accordingly, we consider s.399A(1)(c) provides the Commission with a discretion to dismiss a unfair dismissal remedy application provided the Commission is “satisfied that the Applicant has unreasonably… failed to discontinue the application after a settlement agreement has been concluded.”
[31] Section 399A(2) of the FW Act provides that the Commission may exercise its power under s.399A(1) on application by the employer. As the power in s.399A is only exercisable on application by an employer it is the employer who bears the burden of persuading the Commission that the requirements of s.399A(1)(a), (b) or (c) have been met and that the discretion should be exercised in favour of the unfair dismissal remedy application being dismissed.
[32] While the Full Bench in Granas v Berkley Challenge was dealing with a decision to dismiss an application pursuant to s.399A(1)(c), the observations are no less relevant here. We respectfully agree with the observations and adopt them here.
[33] We do not consider that the Appellant has advanced any arguable case of error in the Deputy President’s decision. We consider that having regard to the repeated failures of the Appellant to file materials and/or attend proceedings of the Commission on various occasions over a significant period of time, it was reasonably open to the Deputy President to conclude that the Appellant had unreasonably failed to comply with directions of the Commission in relation to the application and unreasonably failed to attend a hearing. Further, it was open to the Deputy President to exercise the discretion to dismiss the application, having regard to the four occasions on which the Appellant had unreasonably failed to comply with directions and the further occasion of unreasonably failing to attend a hearing. The Appellant’s submissions as set out in the grounds of appeal amounted to a restatement of the claimed extreme personal and family issues aired in the proceedings before the Deputy President. The Appellant was on notice during the s.399A proceedings through correspondence that if factual assertions such as the loss of family members, for example, were to be given any weight by the Commission it was necessary to include documentary evidence of those factual assertions. It is apparent that no evidence was provided. In any event, it is apparent from the decision that the Deputy President took into account that the Appellant ignored three opportunities to make submissions in relation to the s.399A application. We are not satisfied that the Appellant’s grounds of appeal identify any error in the decision of the Deputy President. In any event, we agree with the Deputy President’s conclusion. The decision was not counter-intuitive, did not manifest an injustice, and raised no wider issue of law or principle.
[34] For these reasons, we are not satisfied that the grant of permission to appeal would be in the public interest. Accordingly, consistent with s.400(1) of the FW Act, permission to appeal is refused.
VICE PRESIDENT
Appearances:
No appearance, Appellant
L Schafer-Gardiner, Respondent
Hearing details:
2020
Sydney (by telephone)
November 30.
Printed by authority of the Commonwealth Government Printer
<PR725826>
1 Endnotes:
(2011) 192 FCR 78.
2 Ibid at paragraph 43.
3 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at paragraph 69 per Gummow, Hayne, Heydon, Crennon, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54 at paragraphs 44 - 46.
4 [2010] FWAFB 5343.
5 Ibid at [27].
6 [2015] FWCFB 1795 at para [5]
7 (2014) 241 IR 142.
8 Ibid at 156.
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