Applicant v Respondent

[2021] FWC 3624

[2021] FWC 3624

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Applicant
v
Respondent
(U2011/12007)

DEPUTY PRESIDENT DEAN CANBERRA, 23 JULY 2021

Application for an unfair dismissal remedy – application lodged in 2011 – application dismissed

[1] This decision concerns an application made by the Applicant in September 2011 pursuant to s.394 of the Fair Work Act 2009 seeking a remedy for her alleged unfair dismissal by the Respondent.

[2] The circumstances that have led to the substantial delay in the prosecution of the application have been the Applicant’s medical condition.

[3] On 9 May 2014 Deputy President Sams issued a statement  1 (the Statement) ordering the matter be adjourned indefinitely until such time as the Applicant provided the Commission with unequivocal medical evidence that she is capable of properly conducting her case or that she is capable of giving instructions to a representative to act on her behalf.

[4] In the ensuing period the Commission had intermittent communications with the Applicant. The Applicant continued to express her intention to proceed with the application but otherwise advised that she was unfit to participate the process and provided medical certificates to that effect.

[5] The Respondent now seeks to have the matter dismissed under s.587 of the Act for several reasons, including the extraordinarily long time period since her application was made.

[6] The Applicant in her reply contends that the application should remain on foot and has applied that I recuse myself from this case.

[7] For the reasons set out later in this decision, I decline to recuse myself and have decided to dismiss the application.

Background

[8] The Statement issued by Deputy President Sams provides an overview of the background of the matter and is set out in full as follows:

“[1] These proceedings have had a long and regrettable history. Part of that history was recorded in my decision last week, Applicant v Respondent[2014] FWC 2860 at para [9]. It is sufficient to note at this time, that the applicant was dismissed on 12 September 2011. She has not been employed since then, due to severe and undisputed mental health issues.

[2] Nevertheless, the matter was listed for arbitration on Monday 5 May 2014 and scheduled for hearing over five days. The arbitration arose from the applicant’s advice that she was ready to commence prosecuting her claim. Her most recent doctor’s report, while expressing concern with the applicant’s fragile state and suggesting that the Commission ensure the proceedings be conducted to ensure that her stress be minimised, did not expressly diagnose that she was incapable of conducting her case.

[3] On the morning of 5 May 2014, I invited the parties to have further settlement discussions, but despite conciliation conferences over a number of hours, no settlement could be reached. Nevertheless, an offer was made by the respondent, which the applicant agreed to consider overnight and after taking advice from her family. However, the following day, the Commission and the respondent were informed that the offer was not acceptable to her.

[4] The arbitration was resumed in the form of a determinative conference, as requested by the applicant. She tendered a 67 page, closely typed statement and was cross-examined by the respondent’s counsel. The cross examination concluded about 2:30pm. Notwithstanding the point reached in the arbitration, I formed the view, after observing the applicant in conference and giving evidence, that I would invite another member of the Commission to undertake further conciliation with the parties. Commissioner Riordan was available and kindly offered to do so.

[5] After private conferences with the Commissioner, the applicant sought further time to consider the offer of settlement. She also indicated to me that she was in no fit state to cross-examine the respondent’s witnesses the next day. The respondent consented to the adjournment. Commissioner Riordan adjourned the conciliation until yesterday morning. Upon resumption of the conciliation, the applicant again rejected the respondent’s offer of settlement. She sought further time to consult with her solicitor who, she said, was presently overseas. The applicant claimed that she had always been prepared to conduct the arbitration of her claim, but was completely ‘thrown off’ and could not focus or concentrate as a result of the change in proceedings involving conciliation. The applicant said that, as a result, she was in no fit state to cross-examine the respondent’s witnesses today, Friday 9 May 2014 and sought a further adjournment.

[6] The respondent expressed concern with the state of the proceedings and the delay in reaching finality in the matter. However, it reluctantly agreed to the adjournment. The respondent proposed to provide the applicant with the details of its offer in writing and to advise her how long the offer would remain open before being withdrawn. I presume this has occurred today.

[7] It does not take a trained psychologist or psychiatrist to recognise that the applicant’s mental state is such that she is incapable of prosecuting her case at the present time. The physical manifestations of her mental state are plain and obvious and I need not detail them here. I accept her own assessment that she cannot focus or concentrate on the cross-examination of witnesses, after being diverted by a change in the nature of the proceedings. Nevertheless, I remain firmly of the view that the applicant’s poor mental condition is not being helped by a continuation of these proceedings. Her best outcome would be to seriously reconsider accepting the respondent’s offer and ‘move on with her life’.

[8] However, given the very unusual and regrettable circumstances of this case, I have decided to adjourn these proceedings indefinitely. The arbitration will not be resumed unless and until the applicant provides the Commission with unequivocal medical evidence that she is capable of properly conducting her case or that she is capable of giving instructions to a representative to act on her behalf.

[9] I order that these proceedings are adjourned indefinitely.”

[9] Subsequent to the Statement, the Commission records indicate relevantly the following timeline:

•  On 12 June 2015, email correspondence was sent to the Applicant seeking her view as to the future programming of the matter. No response was received from the Applicant.

•  On 14 March 2016, the Applicant was advised via email and letter that if no response is received by 25 March 2016 the matter will be closed.

•  Following a telephone conversation initiated by the Applicant, the Applicant was required to inform intentions and circumstances in three months.

•  In an email of 20 June 2016, the Applicant wrote to the Commission, stating that she “still intend to proceed with my application, but that circumstances I relation to my ability to conduct the case have not changed.” In response, the Applicant was asked to advise the Commission of her circumstances in 3 months’ time.

•  The Applicant next wrote to the Commission on 19 September 2016 and reiterated her inability to conduct the case. The Commission replied to this email in the following terms:

“Thank you for providing this update. I have brought it to Deputy President Sams’ attention. His Honour has advised that in light of the fact that it has been close to five years since you filed this application, he requires medical evidence of your ongoing incapacity to prosecute your application.

Please provide this evidence by close of business on Tuesday, 4 October 2016.”

•  On 13 October 2016, the Applicant submitted a medical certificate stating she was unfit for work/study until 11 January 2017.

•  On 25 August 2017, the Commission wrote to the Applicant as follows:

“Given that the above application arises from circumstances which occurred six years ago, Deputy President Sams seeks an update from you in relation to the current status of this application. In particular, His Honour requires that you advise the Commission, by no later than 5pm on Thursday 22 September 2017, the following:

a. whether or not you still intend to proceed with your application; and, if so

b. whether the circumstances relating to your ability to conduct your case or instruct someone to do so, has changed.

If you are still unable to conduct the matter, or instruct someone to do so, His Honour requires a medical certificate from you to that the effect.

If no contact is made with the Commission by the above date, His Honour will dismiss the application and the matter will be concluded.”

•  On 15 September 2017, the Applicant requested an extension of time to obtain medical certificate and was given until 30 November 2017 to do so.

•  •n 21 September 2017 the Applicant submitted a medical certificate which certified that the Applicant was unfit to represent herself in court due to her mental state. In response, the Applicant was advised that the matter will be adjourned until further order of the Commission. The Applicant was told that the Commission will conduct periodic reviews of the matter in light of her medical circumstances.

•  On 19 July 2019 the Commission wrote to the Applicant as follows:

“Deputy President Sams seeks an update from you in relation to the current status of this matter. The matter has been inactive since your correspondence with Chambers in September 2017. Please provide an update by no later than 4pm Friday 26 July 2019. If no update is received by this time, the matter will be closed due to inactivity.”

•  The Applicant replied to this email on 24 July 2019, stating that her situation is the same since her last correspondence. In reply, the Commission wrote to the Applicant as follows:

“Chambers has not been provided with any medical evidence of your inability to proceed with your matter in nearly two years. The Deputy President directs you to provide medical evidence of your incapacity to run your case by 4pm 31 July 2019. Otherwise, the matter will be closed with no further recourse to you.”

•  The date by which the Applicant was required to provide further medical certificate was later extended to 30 September 2019 at the Applicant’s request.

•  On 25 September 2019 the Applicant submitted a medical certificate stating that she was unfit until 17 March 2020.

[10] There was no further correspondence from the Applicant until she made contact with the Commission between February and March 2021 to enquire about the status of her application.

[11] On or about 10 March 2021 the matter was referred to me. On 23 March 2021, I conducted a telephone conference with the parties. Shortly after the conference, I caused the following correspondence to the Applicant:

“The Deputy President has asked me to write to you with regard to your application for an unfair dismissal remedy.

As you know, you participated in a telephone conference this morning before Deputy President Dean. The Respondent also participated in the conference.

Your application was made in 2011, almost 10 years ago. The Respondent has today made a verbal application to have your application dismissed, for reasons including that it would be significantly prejudicial for the application to proceed after such a lengthy period of time.

The Deputy President notes that in the last 7 years you have regularly advised the Commission that you have not been able to participate in a hearing due to health reasons.  

As the Deputy President indicated to you this morning, she will provide you with an opportunity to either:

a. Provide medical advice confirming that you are fit to participate in a hearing, in which case she will list your application for a hearing, or

b. Provide reasons why she should not dismiss your application.

You should provide your response by no later than Friday 16 April 2021.

In the absence of any reply by this date, the Deputy President will dismiss your application.”

[12] The Applicant provided a response on 16 April 2021.

[13] On 7 May 2021 Sparke Helmore Lawyers filed a F53 form with the Commission advising that it acted for the Respondent and provided written submissions in support of the Respondent’s application to dismiss.

[14] Thereafter, extensive email correspondence was exchanged between my Chambers and the Applicant, concerning matters which include the following:

a. The Applicant was asked whether she wished to respond in writing or orally to which she advised her preference was to respond in writing.

b. The date by which the Applicant was required to provide a response was extended to 17 May 2021 at the Applicant’s request.

c. The Applicant’s request for a further extension until 18 June was refused and she was given until 31 May 2021 to provide a response.

[15] In an email to my Chambers on 27 May 2021, the Applicant revisited the request for an extension to respond and went on to say, amongst other things, that:

“I believe the reason an extension of time has not been granted has something to do with the advertisement for a job at [the school] closing on 31 May 2021. This job was originally advertised at the time of the telephone conference on 23 March 2021. As I had strongly suspected that this was the reason why no further extension of time was being allowed, I sought to obtain further medical evidence to support my arguments in relation to this and other issues I have outlined in my response. While I have been told that I have to be transparent, it appears that something is being organised behind the scenes, which is significantly beneficial to the respondent and is why Mr [name] refused to consider my list of consequences, after being so keen to see how he could help during the telephone conference on 23 March 2021. This is evidenced by my request for an extension of time being denied, and it coinciding with the closing date for a job at [the school] that had been re-advertised, at a convenient time for the respondent. Also your previous response at 11.27 am today was also sent to Mr [name], even though he had advised us that he was no longer dealing with my matter, as his legal representatives had taken over carriage. This together with the fact that none of your previous responses since then have been sent to Mr [name], also strongly suggests that there is something being organised behind the scenes, to the advantage of the respondent.

It appears that no matter what is written in my response (which has been a very difficult, stressful and time consuming task) to you, it will make no difference to your decision, as the decision seems to have already been made and organised with the respondent. This is unfair, unjust and significantly impartial. The medical evidence that I am seeking permission to obtain is very important, if you are going to make decisions which are impartial and not prejudicial to myself. As such, I ask that you reconsider your decision to deny my request to obtain further medical evidence, so that I am adequately able to support the arguments I am making in my response to Mr Gottlieb’s email. If I am unable to obtain this medical evidence, I am again being put at a significant disadvantage.”

[16] In reply, my chambers sent an email to the Applicant on 28 May 2021 in the following terms:

“The Deputy President has no knowledge of anything related to a job at [the school] and has had no correspondence with the Respondent that you are not aware of. In this regard, all correspondence from our Chambers is addressed to both parties. As you have been advised before, please ensure that any correspondence you send to us is copied to the Respondent.

The Deputy President asks if your intention in wishing to provide medical evidence is in support of a request you intend to make that the application should continue to be stood over (ie you are medically unfit to participate in a hearing), or for the purpose of demonstrating you are now fit to participate in a hearing. Please respond by close of business today.”

[17] The Applicant’s response to the question asked was that she needed to obtain medical evidence to support arguments she was making in response to the Respondent’s submissions filed on 7 May. After being asked to clarify what arguments she intended to make, the Applicant wrote to my chambers the following:

“I would rather not state what those arguments are prior to submitting my response, as I believe that clarifying them may be prejudicial to me.

I was wondering if I will be receiving an answer to my request for an extension of time today?”

[18] On 31 May 2021, my Chambers responded to the Applicant as follows:

“The Deputy President has considered your correspondence.

What you have been asked to respond to, which you have been aware of since March, is the Respondents application to dismiss your unfair dismissal application. That is what the Deputy President is going to decide. 

The Deputy President will give you until 4pm this Wednesday 2 June to provide a response, after which time a decision will be made as to whether or not to dismiss your application.”

[19] On 2 June 2021, the Applicant filed written submission in support of her claim that the application should not be dismissed. In addition, the Applicant further sought that I recuse myself from dealing with this matter (the recusal application) and set out a number of matters which she relied on in support of her recusal application.

[20] Following receipt of the recusal application, the Applicant was invited to provide any further submissions and evidence with regard to the recusal application and she did so on 7 June 2021.

The recusal application

[21] The Applicant’s contentions in support of her recusal application stated as follows:

1. Rejecting my request to obtain another medical certificate, prior to the teleconference even though Deputy President Sams ordered that my matter remain in abeyance indefinitely, until I present a medical certificate stating I am well enough to conduct the hearing. See email dated 22 March 2021.

2. Intimidation of myself during the telephone conference on 23 March 2021 in order to allow the respondent greater leverage in negotiating on their terms. See my response to you dated 16 April 2021, under the headings; ‘Concerns About Email Regarding Telephone Conference 23 March 2021’ and ‘What Occurred After the Hearing’, for full details of my concerns in this regard.’

3. Allowing potential negotiations to take place when I was unaware the telephone conference was for that purpose. During the telephone conference on 23 March 2021, you stated that I would get an opportunity for a more considered response to Mr [name]’s questions, however, in your email about the telephone conference, this opportunity was not specifically given. Also the details in your email regarding this telephone conference only made reference to the respondents concerns, but made no reference to my concerns or the fact that Mr [name] had asked what winning meant to me, what they could do to help or that he said sorry. Full details in regard to this concern are outlined in my response to you dated 16 April 2021 under the same headings as outlined in Point 2 above.

4. It appears what has taken place, has occurred so the respondent does not have to consider my list of consequences referred to in my response dated 16 April 2021. If my matter is dismissed, the respondent will not have to consider this list. If my matter is not dismissed, a decision could be made that will put the respondent in a superior position to negotiate later on or allow them to give an offer of settlement on their terms without considering my list of consequences. This will also ensure that there is no written record of this list of consequences I am now dealing with, as a result of the bullying and harassment I encountered in the workplace or the unfair termination of my employment and all that I have endured as a result of that. Again what the respondent has done is being covered up to prevent any formal record of what they have done.

5. You did not consider the circumstances I found myself in, not only as a result of the respondent’s treatment of me, but also due to other unexpected events, and did not allow me sufficient time to complete my response to a standard I am happy with. Considering the matter has been in abeyance, it would not have disadvantaged either party to grant that extension of time. Therefore, it appears the extension of time was rejected, to make it more difficult for me to complete my response to a high standard, therefore presenting further advantages for the respondent. See emails dated 27 May 2021 11.39am and 27 May 5.03pm. Alternatively, allowing me the extra time did not fit in with what was being organised behind the scenes with Mr [name]. See point 8 below and the first three pages of my response to Mr Gottlieb dated 2June 2021.

6. You did not consider the circumstances I find myself in as a result of the respondent’s treatment of me, and in turn did not allow me sufficient time to provide medical evidence to support my arguments in my response to Mr Gottlieb‘s submissions. Not only will this again be advantageous to the respondent, but will also allow a decision to be published, with no acknowledgement of that medical evidence, which is highly prejudicial to me. However, that is exactly what the respondent is trying to prevent from happening and what has been a common theme over the last eleven years. It appears you are assisting the respondent from having anything detrimental to them formally published again.

7. I shouldn’t have to tell you and therefore the respondent, what arguments I want medical evidence to support, before I submit my response. That is prejudicial to me and advantageous to the respondent. The fact that you wanted to know before hand what the arguments were, strongly suggests that you wanted to know if obtaining medical evidence would affect the respondent in a negative way (ie. having to publish the medical evidence), or would affect anything that was being organised behind the scenes to the advantage of the respondent. See emails dated 28 May 2021 at 2.10pm, 2.52pm, 3.25pm and 3.53pm, and my response to Mr Gottlieb dated 2 June 2021 (first 3 pages outlining the emails that were sent within minutes of each other from both Mr [name] and yourself).

8. Allowing the respondent to have a solicitor make their submissions is unfair. In President Ross’ reply to me he states, “Finally I note that if a party wishes to be represented by a lawyer in a conference or hearing before a commission member, they must seek the member’s permission. The requirement to seek permission does not usually extend to having a lawyer perform other activities such as lodging submissions or sending correspondence.” Even though lawyers are not usually allowed to make submissions, you allowed the respondent’s solicitor to do this, but would not grant me an extension of time due to the extenuating circumstances I found myself in. It appears everything is being made as easy as possible for the respondent and as difficult as possible for me.

9. Several significant coincidences have occurred, one being the closing date for the readvertised position at [the school] being 31 May 2021, the same day as my initial deadline and when I was told that no further extension of time would be granted. See email dated 27 May 2021at 5.03pm While a further extension of time was given until 4pm on June 2 2021, this was only two extra days and did not allow me to get the medical evidence I required at a longstanding medical appointment you were made aware of in my email to you dated 21 March 2021. This small extension of time also did not allow me to finish my response to the standard I would have liked. See my response to Mr Gottlieb dated 2 June 2021 for more detail in this regard to these emails

10. Because I did not have my extension of time granted, I also did not get the opportunity to see my aunty in time, before she deteriorated. I know this doesn’t have anything to do with legal issues, but it was very disappointing and something that could have been avoided, if you were considerate of my needs rather than just those of the respondent.

11. Another coincidence is that there were two lots of emails sent within minutes of each other and which indicate that there has indeed been some sort of collaboration between yourself and Mr [name]. See my response to Mr Gottlieb’s submission dated 2 June 2021 (first 3 pages) for more in regard to these emails.

12. After Mr Gottlieb took over carriage of the matter for the respondent, you did not copy emails to Mr [name], until after I sent my email dated 27 May 2021, asking for an extension of time and giving reasons for that request. Since then, and after I highlighted this in my email dated 27 May at 5.03pm you have continued to copy emails to Mr [name] to cover up this fact. This also indicates that there is a strong possibly some form of collaboration has occurred behind the scenes to the advantage of the respondent

13. It was only after I enquired about what was meant by the term ‘informal’ in my email to you dated 26 March 2021, that you asked in your reply of the same date that I give an indication of when I would be able to run the hearing. It appears that request was made, so that the respondent could then use that argument, to request my matter be dismissed. Had I not emailed you to ask what was meant by the term ‘informal’, I would not have been asked to specify when I would be able to attend a hearing. This request was not in your original email.

14. Prior to completing my response dated 16 April, I sought clarification on the meaning of some terms that had been used in your emails. Instead of replying directly to the questions I asked, I was intimidated further. This is also outlined in my response dated 16 April 2021 under the heading ‘‘What Occurred After the Hearing’.

15. As the submissions of the respondent did not mention anything about considering the list of consequences I was dealing with as a result of the bullying and harassment I encountered in the workplace, together with the termination of my employment, I emailed Mr [name] on 7 May 2021at 3.42pm to get clarification on whether he was willing to consider the list of consequences. This email was copied to you. Rather than refer to my concerns regarding inequitable legal representation that I spoke to Miss Wong about earlier in the day, your email datedMay 7 2021 at 3.53pm requests I let you know whether I want to reply to the respondent’s submissions orally or in writing. You stated that a telephone conference could be organised if required. Not only did this help to cover up your impartiality during and after the telephone conference, which was referred to in my response dated 16 April 2021, but would also allow Mr [name] to receive my response to your question before he responded to me. This is referred to in my response to Mr Gottlieb’s submissions dated 2 June 2021.

16. You made sure all submissions were finalised in regard to the dismissal of my matter before you considered my application to recuse yourself, so no further request to obtain medical evidence could be made to another member of the commission.

I have dealt with a lot over the past eleven years and what is occurring at the moment is very similar to what has happened previously, to either prevent a determination being made against the respondent or preventing anything being formally recorded/published that will implicate the respondent in any way. Due to the impartial manner in which my hearing was conducted in May 2014, I am particularly concerned about the impartial manner in which my matter continues to be dealt with and the significant effect this could have, not only in relation to the determination you make, but the effects this decision will have on my life in the future. For this reason, if you believe that any of what I have stated above is true, I ask that you recuse yourself from dealing with my matter.”

Consideration of the recusal application

[22] A recusal application is an application seeking the judicial officer presiding over a case to disqualify himself or herself from involvement in the case on the grounds that he or she is biased. The bias may be actual or apprehended.

[23] The test is whether a fair-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial mind to the resolution of the question he or she is required to decide: see Ebner v The Official Trustee (Ebner) (2001) 205 CLR 337.

[24] The application of the test enunciated in Ebner involves a two-step process and is widely adopted by Courts and Tribunals. Itwas elaborated on by a Full Bench of the Commission in a recent decision 2 as follows:

“[57] … the application of the apprehension of bias principle requires two steps. First, it requires the identification of the factor which it is said might lead the judge or tribunal member to decide a case other than on its legal and factual merits. The second step is that there must be an articulation of the logical connection between the matter and the apprehended deviation from the course of deciding the case on its merits. It also remains necessary to determine whether the apprehension is reasonable considered in the totality of all the relevant circumstances, and this is sometimes described as a third step.” 3

[25] It is clear that the test to be applied and the steps involved in determining actual or apprehended bias require an objective appraisal of the matters relied upon by the party seeking to disqualify a Member from hearing and determining the application. It is not what the Applicant might believe to be matters giving rise to a reasonable apprehension of bias but what a disinterested and fair-minded observer would conclude.

[26] Having considered the matters raised by the Applicant, I am not satisfied that she has made out a case that I should recuse myself from determining this matter.

[27] There have been no private or undisclosed communications between the Respondent and me or my Associate.

[28] There was no conduct that a reasonable person would consider intimidating during the telephone conference on 23 March 2021.

[29] The ‘potential negotiations’ referenced by the Applicant were nothing more than a standard request by me to ascertain what she now sought from her application, and whether there might have been a way in which the application could be resolved without the need for a formal hearing.

[30] The Applicant’s circumstances have been considered and she has been afforded procedural fairness and given reasonable time (including an extension of time) to provide submissions as to whether her application should not be dismissed. She was given the option to provide her submissions orally or in writing. She was given a reasonable time period to provide medical evidence if she so chose, and despite her submissions, her request to obtain medical evidence was not rejected.

[31] The ‘coincidences’ referenced by the Applicant are exactly that – coincidences. For example, I had no knowledge of any recruitment processes being conducted by the school, nor was the sending emails from my Chambers part of any collaboration with the Respondent.

[32] There is no conduct that could reasonably support a conclusion that I will not decide the case other than on its legal and factual merits.

[33] I do not believe that any fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the determination of whether the Applicant’s application made in 2011 should be dismissed.

[34] The test in Ebner is not met. Accordingly, I decline to recuse myself from hearing this matter.

Application to dismiss

[35] I now turn to consider the Respondent’s application to dismiss under s.587.

[36] Section 587 of the Act provides the Commission with a broad discretion to dismiss an application. It reads:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

(2) Despite paragraphs (1)(b) and (c), FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[37] Also relevant to this matter are sections 577 and 578, which set out the Commissions general obligations in the performance of its functions, and s.381 which sets out the objects of the part of the Act dealing with unfair dismissals:

577 Performance of functions etc. by the FWC

The FWC must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.

Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).

578 Matters the FWC must take into account in performing functions etc.

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; and

(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

“381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a ‘fair go all round’ is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.

Submissions of the Respondent

[38] The Respondent submits that the FWC should exercise its broad discretion under s.587 of the Act to dismiss the application on the following grounds:

a. The dismissal of the Applicant occurred more than 9 years ago in September 2011. Section 577(a) requires the FWC to perform its functions and exercise its powers in a manner that is fair and just. It would be unfair and unjust to allow the proceedings to continue in the circumstances of the extraordinary delay for reasons which have no connection to the conduct of the Respondent.

b. To allow a dispute to continue for an excessive period of time without resolution (over 9 years) would be inconsistent with s.577(b) of the Act which requires the FWC to perform its function and exercise its power in a manner that is quick and informal; and s.577(d) which requires the FWC to perform its functions and exercise its powers in a manner that promotes harmonious workplace relations.

c. The practical consequence of the delay is that the Respondent is unable to properly defend itself in the proceedings, including because witness evidence will be unreliable and unable to be properly tested given the extent of time that has passed since relevant events occurred and, further, witnesses which the Respondent intended to rely on are no longer in its employ. To put the Respondent to the time and cost associated with preparing for and attending a hearing at any stage now or in the future is inappropriate in circumstances where the Applicant is unable to prove issues of fact which are essential to proving her claim. There are no accommodations that could be made by the parties or the FWC to address this fatal issue. The Applicant’s claim is doomed to fail;

d. Although the Applicant feels deeply aggrieved by the circumstances in which her employment ended and appears to suffer mental health related issues, it would be grossly prejudicial to the Respondent to allow these proceedings to continue. The Respondent has incurred a significant amount of cost to date by taking part in these proceedings, including obtaining medical reports, preparing evidence, and engaging solicitors and counsel. To allow the application to continue would not ensure that a ‘fair go all round’ (s.381) is accorded to both the Applicant and the Respondent as the delay is already excessive and prejudicial and the Respondent is not responsible in any way for that delay.

e. The Applicant has not provided documentation or information addressing the entire period of the delay since the proceedings were adjourned indefinitely on 9 May 2014.

f. The Applicant does not seek to have the proceedings progressed. Her submissions indicate that she is not medically able to progress the application and state that:

“You have asked in your email dated 26 March 2021 that I give a clear indication of when I would be able to conduct my hearing. At this point, it is very difficult to give you a definitive answer. … Currently I am dealing with some very serious repercussions resulting from the termination of my employment. My stress levels and anxiety in dealing with these consequences would make preparing for and running a hearing at this point in time, extremely difficult and as such I request that my matter remain in abeyance.”

g. The prejudice which would result to the Respondent forms a proper basis for dismissing the application under s.587 of the Act. In Mohammad Ayaz v Transdev NSW South Pty Ltd 4Deputy President Sams, in dismissing a s.394 application under s.587 of the Act, said:

“[46] In my view, the respondent would experience significant prejudice if this application is allowed to progress, given the length of time since the applicant’s dismissal (2½ years) and the significant periods of inactivity, on the applicant’s part, in progressing his claim. That this is a sound basis for dismissing the application is supported by the decision of the Australian Industrial Relations Commission (as the Commission then was) in Chand v State Rail, where it was said at para [48]:

‘[48] The classic circumstances that enliven a court’s discretion to dismiss an action for want of prosecution are a failure, typically a repeated failure, by a plaintiff to comply with directions of the court or a prolonged period of inactivity on the part of a plaintiff.’”

h. That the Applicant has failed to provide medical information and documentation to explain the delay in seeking to progress the matter since the proceedings were adjourned indefinitely on 9 May 2014. While the Applicant’s Submissions provided reasons as to why she felt her application should not be dismissed, there was no explanation for the almost 7 years of delay since the matter was adjourned on 9 May 2014. There is no certainty about when the Applicant will be medically able to press her claim.

[39] The Respondent also referred to the decision of Deputy President Anderson in Centofani v Transfield Services T/A Light City Buses 5 (Centofani) and the approach taken therein to dismissing applications:

“[31] Whether Mrs Centofanti’s application should be relisted or alternatively dismissed is a discretionary matter. It is a discretion to be exercised objectively and according to judicial principles. In considering whether to relist the matter or alternatively dismiss the matter, an appropriate starting point is the Commission’s general obligations expressed in section 577 and 578 of the FW Act:

…

[32]  I have regard to these general duties and apply them in the context of the following matters I consider of particular relevance to determining this matter:

•  The unfair dismissal statutory scheme;

•  The history of the matter (including the conduct of the parties);

•  The length of the delay;

•  The reason for the delay;

•  Prejudice (if any) should the matter be relisted or dismissed; and

•  Relevant authorities on the operation of sections 587 and 589.” 6

Submissions of the Applicant

[40] The Applicant’s 28 page submission traversed a large number of matters, all of which I have carefully considered. A short outline of the matters she covered are as follows:

a. Deputy President Sams unfairly and unjustly put her matter in abeyance indefinitely, and she had been prevented by Deputy President Sams and the Respondent’s legal team from finalising her matter at the hearing in May 2014, and had no control over what had occurred then;

b. The matters set out in the Statement and the email from my Chambers to her dated 23 March 2021 were inaccurate and written in a way which benefited the Respondent;

c. She was regularly intimidated in some way when she interacted with the Commission;

d. She was unaware that the mention/conference listed on 23 March may involve any negotiation with the Respondent;

e. She set out in detail the background and history of her application, dating back to January 2012, including her interactions with various Members of the Commission;

f. She suggested that the use of ‘legal jargon’ by the Respondent was an attempt to further intimidate her;

g. The procedural facts relating to her matter are all in writing and as such the length of time her application has been in abeyance does not pose any disadvantage to the Respondent;

h. The fact that the Respondent’s witnesses are no longer in its employ will not prevent the Respondent from calling them to give evidence;

i. If the Respondent has incurred significant legal costs to date is a consequence of the decisions it has made in the past;

j. The Applicant provided medical certificates on each occasion she was requested to do so by Deputy President Sams;

k. It is unfair that her health condition, which was caused by the Respondent, is being used against her to dismiss her application;

l. She attempted to prosecute her case in May 2014 but was prevented from doing so through no fault of her own;

m. The Respondent was actively involved in preventing her from finalising her matter in 2014;

n. The Commission did what it could to allow her matter to remain open when she was legally represented, but once she was without legal representation, the decisions made by the Commission have strongly favoured the Respondent;

o. Rather than dismissing the application, the Commission could make a merits decision based on the material that was before the Commission in 2014;

p. The Respondent should consider the “list of consequences” she had provided to it and respond to her list, rather than seek to have her application dismissed;

q. Her request for a further extension of time to respond was not granted because a position at [the school] was nearing its closing date;

r. Another extension until 18 June 2021 would not have disadvantaged the Respondent because her application had already been in abeyance for a number of years; and

s. Dismissing her application would prevent her from submitting evidence at a hearing and cross examining the Respondent’s witnesses.

[41] For these reasons, she argued, her application should remain in abeyance until such time as she was able to continue with the hearing.

CONSIDERATION

[42] Having regard to the submissions of the parties and adopting the approach taken in Centofani, I am satisfied that it is appropriate to dismiss the application.

[43] The Commission is required to perform its functions and exercise its powers in a manner that is ‘fair and just’ (s.577(a)) and ‘quick, informal and avoids unnecessary technicalities’ (s.577(b)). There has been an extraordinarily long delay in dealing with this application. To allow the application to continue on foot without being determined for a longer period than what has already been the case would be inconsistent with these sections of the Act.

[44] I do not consider any of the reasons advanced by the Applicant to further delay the hearing to be compelling. While it is an unusual course of action to stand over an unfair dismissal application indefinitely, it is clear from the Statement that the Deputy President held significant and genuine concerns for the Applicant’s wellbeing. The Applicant at any time since then could have sought to have her application relisted and proceed with a hearing. She has not done so, instead providing medical certificates which confirm her inability to participate in a hearing.

[45] There is no suggestion from the Applicant that she is or will be fit to participate in a hearing now or in the near future.

[46] The Applicant has been afforded procedural fairness. From the conference on 23 March 2021, she ended up having until 2 June 2021 to file her final submissions. This is on any objective view a reasonable period of time to put forward reasons why her application should not be dismissed. This was also a reasonable timeframe to provide medical evidence if she so chose.

[47] I accept the Respondent will suffer significant prejudice if the application was to remain on foot, particularly in circumstances where the Applicant is not able to proceed to a hearing now.

[48] It is uncontroversial that after such a lengthy period of time, witness’s recollection of events will have faded over time and will be unreliable.

[49] A ‘fair go all round’ will not be met if the application remains in abeyance indefinitely.

[50] I accept the submissions of the Respondent that the continuation of the proceedings would be contrary to the way the Commission is required to exercise its powers and functions and the objects of the unfair dismissal regime.

[51] Accordingly, I dismiss the application.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2014] FWC 3073.

 2   Regional Express Holdings Ltd, Png Yeow Tat, Mark Burgess and Maree Penglis v Stephen Hanson[2021] FWCFB 2755.

 3 Ibid at [57].

 4   [2015] FWC 7098.

 5   [2018] FWC 755.

 6   Ibid at [31] and [32].