Greg Diener v Alpha Flight Services Pty Ltd T/A dnata Catering - [2022] FWC 3143

[2022] FWC 3143

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Greg Diener
v

Alpha Flight Services Pty Ltd T/A dnata Catering

(C2022/6483)

DEPUTY PRESIDENT BOYCE

SYDNEY, 28 NOVEMBER 2022

Application to deal with contraventions involving dismissal – request by applicant for adjournment of telephone hearing - failure to comply with directions – applicant initially sought adjournment of telephone hearing on the basis that his lawyer ceased to act for him – after adjournment request refused, applicant sought adjournment of telephone hearing on grounds of incapacity – applicant’s evidence as to incapacity on mental health grounds not sufficient to warrant an adjournment – applicant subsequently claimed that his medical certificate as to incapacity is in the post and stated that he is recovering at a health retreat – when asked to provide details of the health retreat, applicant refused – applicant asked to show cause as to non-compliance with directions – response to show cause inadequate – application dismissed.

Introduction

On 21 September 2022, Mr Greg Diener (Applicant) filed an application pursuant to s.365 of the Fair Work Act 2009 (Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal (Application). It is alleged that Mr Diener commenced employment with Alpha Flight Services Pty Ltd T/A dnata Catering (Respondent) on 25 June 2022, and was dismissed on 16 September 2022.

The matter was initially allocated to the Commission’s staff conciliation unit. A notice of listing was dispatched to the parties in respect of a staff conciliation to occur on 7 November 2022. The staff conciliation was unsuccessful.

The Form F8A Response filed by the Respondent (dated 7 October 2022) objects to the Application further progressing on the basis that the Applicant was not “dismissed” by the Respondent. The Respondent says that it could not have dismissed the Applicant because he was never an “employee” of the Respondent (Respondent’s Objection).

The matter was allocated to my Chambers on 10 November 2022. Directions and a Notice of Listing were issued to the parties on that date. They read:

“[1] Any party seeking to be represented must comply with the Commission Practice Note regarding Lawyers & Paid Agents; see It is noted that this should be done at the earliest possible opportunity.
[2] By 4.00pm AEDT on Thursday, 17 November 2022, the Respondent must file with the Commission and serve on the Applicant an outline of submissions, witness statements, and any documents in support of the jurisdictional objection(s) they raise.
[3] By 4.00pm AEDT on Thursday, 24 November 2022, the Applicant must file in the Commission and serve on the Respondent an outline of submissions, witness statements, and any documents in opposition to the jurisdictional objection(s) raised.
[4] By 4.00pm AEDT on Tuesday, 29 November 2022, the Respondent must file in the Commission and serve on the Applicant any submissions in reply, and any documents in support of those reply submissions.
[5] The matter is listed for Hearing in regard to the jurisdictional objection(s) by telephone at 2:00pm AEDT on Wednesday, 30 November 2022.
[6] Filing of documents is to occur by email to the Associate to Deputy President Boyce at [email protected]. Please note that any correspondence sent to Chambers regarding this matter must copy in all other parties and/or their representatives.
[7] Liberty to apply generally on 2 days’ notice upon email notification to the Associate to Deputy President Boyce.”

The Respondent complied with Direction [2] above on 17 November 2022, filing an outline of submissions and two witness statements.[1]

Communications with the Applicant

On 18 November 2022, a Form F54 was filed with the Commission advising that the Applicant’s legal representative had ceased to act on the Applicant’s behalf.

Four days later, on 22 November 2022, at 7:09pm, the Applicant sent the following email (Email 1 (Applicant)) to my Chambers:

“Ref: C2022/6483 Diener v alpha flight services pty ltd t/a dnata catering

Dear Sirs

I no longer have legal representation. I ask for an extension of the hearing date to allow me to find a representative as I am unable to represent myself.

Regards
Greg Diener
Sent from my iPhone”

The Applicant was sent the following email (Email 2 (Chambers)) in response from my Chambers, on 23 November 2022, at 8:03am, copying in the Respondent and its legal representatives:

“Dear Mr Diener
Your request for an adjournment (or vacation) of the current hearing date is denied.

It is noted that your lawyers officially ceased to act on 18 November 2022 by filing a Form F54 with the Commission. You would have been aware that this was to occur prior to 18 November 2022.

The hearing date is one week away (30/11/22). This is sufficient time for you to obtain alternative legal representation.

Legal representation before the Commission, or the absence thereof, is not a reason for an adjournment or the vacation of a hearing date.
Yours faithfully”

At 10:32am on 23 November 2022, the Applicant forwarded (from his iPhone) the foregoing email trail (comprising Email 1 (Applicant) and Email 2 (Chambers)) to Ms Shelly Tamas, Solicitor, Fair Workplace Solutions (Ms Tamas is the solicitor who had ceased to act for the Applicant on 18 November 2022) (Email 3 (Applicant)). Ms Tamas has not communicated with my Chambers.

On 23 November 2022, at 12:23pm (and again at 1:15pm, copying in the Respondent’s representative), the Applicant sent the following email (Email 4 (Applicant)) to my Chambers:

“Hi
Could you please assist me with my request
as I am not well enough to cope
Please find attached a recommendation
from my Phycologist

Sent from my iPhone”

Attached to this email, was a document signed by Mr Alexander Robertson, Registered Psychologist at the Logic Lounge, which reads:

“23/1//22
To whom it may concern,
Re: Greg Diener
DOB: 26/4/1968
This is a letter to confirm that Mr. Diener has been attending psychological counselling for the diagnosis of depression, anxiety, and trauma as a result of an incident that happened at work. Mr. Diener has also seen two different psychiatrists to assess his mental health. Mr. Diener is struggling severely with his mental health and has stated that he is struggling to leave the house as he is feeling scared and anxious about something bad happening to him. My recommendation is that Mr. Diener’s Fair work hearing on the 30/11/22 is adjourned for a later date when Mr. Diener’s mental health has stabilised.
I hope this information assists you. If you have any further questions, please contact me on [number] or by email [email].
Warm regards”

Later that day (23 November 2022), at 1:27pm, the following email (Email 5 (Chambers)) was sent in reply to the Applicant from my Chambers (copying in the Respondent and its legal representatives):

“Dear Mr Diener

The document provided in your email below [from Mr Robertson, Registered Psychologist] does not provide a sufficient basis upon which the telephone hearing ought be adjourned. Specifically, this document does not specify any incapacity that you have to make a telephone call and be part of a telephone hearing, nor does it specify any specific date upon which you would be in a position to have a hearing relisted to. It is further noted that this document comes not more than a day after you sought an adjournment due to a lack of legal representation.
The issue to be determined at the telephone hearing is whether or not you were an “employee” of the Respondent, and thus whether you were “dismissed” by the Respondent (i.e. if you were not an employee of the Respondent you could not have been dismissed by the Respondent and the Commission is required to reject your Application and close its file as it has no jurisdiction to deal with or otherwise progress your claim/s). This is a fairly straightforward question of fact and evidence.
In the circumstances, you will need to comply with Order [Direction] [3] of the Directions dated 10 November 2022 (copy attached), and attend the hearing on 30 November 2022. Failure to do so will result in your Application being dismissed without further notice to you.

Yours faithfully”

The Applicant sent the following email in reply (Email 6 (Applicant)) to my Chambers that day, 23 November 2022, at 2:42pm:

“So I understand could you please explain to me
My doctors stating that my mental health
Issues which in this fwc case has contributed to my mental wellbeing and getting treatment for several months and The Doctors stating that I am not mentally fit for the hearing on the 30/11/22 is not enough for the commission to adjourn to a later date
My lawyer without warning ceased her services with me on Friday 18/11/22
The other side knows what caused her to do this
That’s what happens when you fight BIG Corporations
She is writing an email to confirm this and I will forward it to you as soon as I receive it
I didn’t just make an appointment with my doctor it was pre booked weeks ago and I have been under the care of a physiatrist for months
I will be seeing my doctor again tomorrow
I also saw my doctor yesterday morning
Is my state of mind and medical evidence not enough for the commission to adjourn my hearing date until I am somewhat mentally stable
Is this correct ?
I look forward to your response

Regards Greg”

At 3:19pm on 23 November 2022, the following email (Email 7 (Chambers)) was sent in reply from my Chambers to the Applicant (copying in the Respondent and its legal representatives):

“Dear Mr Diener

The Deputy President confirms that the document you have provided [from Mr Robertson, Registered Psychologist] is not sufficient evidence of incapacity.
The document does not state that you are incapacitated to attend a telephone hearing. It does not state any period (or time) of incapacity. It does not state a specific date to which a hearing is to be adjourned to (rather, it is wholly open ended in that respect). The Deputy President is not prepared for the matter to be adjourned for an unknown or indefinite period of time. This is especially so in circumstances where the Respondent asserts that you were never its employee, and that the Commission has no jurisdiction whatsoever to hear your claim/s.
Your ability to respond per your email below equally does not disclose any incapacity on your behalf to communicate, articulate, or otherwise set out, matters or concerns that you wish to raise.
As an alternative to attending the hearing, you can make a request for the Deputy President to have the question (as to whether you were or were not an employee of the Respondent) determined ‘on the papers’ (i.e. determined on the basis of the documents filed by both parties in accordance with the Directions dated 10 November 2022, and absent a hearing). If you make such a request, the Deputy President will consider such a request after giving the Respondent an opportunity to make submissions as to whether or not it agrees or disagrees to allow the matter to be determined on the papers.
I await your reply to the forgoing suggestion.

Yours faithfully”

At 3:37pm on 23 November 2022, my Chambers received the following email in reply (Email 8 (Applicant)) from the Applicant:

“Dear Sir,
This is Lana Muncaster, Greg Diener’s partner. I am writing these emails on his behalf and sincerely find the attitude of the commission towards a person in distress and with mental health issues as rather callous.
He has been under psychiatric care for months due to the actions of various parties.
My partner will seek a lawful medical certificate tomorrow and hence we would expect leave until Greg’s mental health is stable.

This time frame will be determined by his doctors.
Regards
Lana & Greg
Sent from my iPhone”

At 4:18pm on 23 November 2022, my Chambers was copied into the following email (Email 9 (Applicant)) sent by the Applicant to “[email protected]”:

“Hi Dr Nick
Could you please review my correspondence
With the fair work commission
I had a letter drafted by my Phycologist
about my mental health but the commission
Could not care about my mental state of mind.
I will talk with you at our 2pm appointment
30/11/22
Kind regards Greg

Sent from my iPhone”

On 24 November 2022, my Chambers received no material from the Applicant in compliance with Direction [3] of the Directions issued on 10 November 2022.

On 25 November 2022, at 9:22am, the Applicant was sent an email (Show Cause Email) from my Chambers, noting that the Applicant had failed to comply with Direction [3] of the Directions issued on 10 November 2022, and issuing further a direction for the Applicant to:

“file with the Commission, and serve on the Respondent, written submissions regarding their non-compliance with directions. Further, the Applicant is to make submissions as to why this matter should not be dismissed. The Applicant is to comply with this Direction by no later than 4:00pm AEDT Today, 25 November 2022.”

The Applicant was notified in the Show Cause Email that if the Applicant does not comply with this direction, or if the Deputy President is not satisfied by the Applicant’s submissions, the matter may be dismissed without further notice.

My Chambers received the following email in reply (Email 10 (Applicant)) from the Applicant at 1:11pm later that day (25 November 2022):

“Hi
Greg is currently recovering in a heath retreat.
He had a consultation with his doctor yesterday which states he is unfit for any business for 2 weeks from 24/11/22 to the 08/12/22 The doctors medical practice has posted the certificate and is in the mail
On Greg’s behalf Lana Muncaster

Sent from my iPhone”

At 1:28pm on 25 November 2022, the following email (Email 11 (Chambers)) was sent in reply from my Chambers to the Applicant (copying in the Respondent and its legal representatives):

“Dear Mr Diener and Ms Muncaster
Further to your email below, the Deputy President seeks the following further information:
1)   Name of the Health Retreat.
2)   Copies of any documentation concerning Mr Diener’s admission to the Health Retreat, including admission forms, invoices and payment receipts in respect of the Health Retreat.
3)   Contact details for the Health Retreat, including address, telephone number and name/s of contact persons in respect of admissions.
The above information is to be provided by way of return email by no later than 4.00PM today [25 November 2022]. If such information is not provided, Mr Diener’s application may be dismissed without further notice to him.
…
Yours faithfully”

By reply email to Chambers from the Applicant (Email 12 (Applicant)), sent at 1:50pm on 25 November 2022, the Applicant stated:

“Hi
We are advised that Greg should not have to
disclose any of his personal Mr at issues and records to the FWC and a medical certificate
covering his condition and incapacity is more than suffice for any statutory body.

Kind Regards Lana Muncaster
on behalf of. Greg Diener
Sent from my iPhone”

At 2:36pm on 25 November 2022, the following email (Email 13 (Chambers)) was sent from my Chambers to the Applicant (copying in the Respondent and its legal representatives):

“Dear Mr Diener and Ms Muncaster
Mr Diener has made a representation to the Deputy President that he is currently in attendance at a Health Retreat.
This representation has been made in the context of his Application which is currently before the Commission, and in circumstances where he is in breach of directions issued by the Commission.
The Deputy President is entitled to seek further information and particulars of his representation, particularly in the aforementioned circumstances. The Deputy President is also entitled to further investigate or make any additional inquiries flowing from a production of a document or a disclosure of information.
Under s.590 of the Fair Work Act 2009 (FW Act), the Deputy President has the power to inform himself as to any matter before him in such a manner as he considers appropriate. Division 9 of Part 5-1 of the FW Act deals with offences relating to the Fair Work Commission.
Whatever advice you may or may not have received as to a requirement to disclose the information requested by the Deputy President is either not to the point, or plain wrong.
The Deputy President reiterates that the information he has requested in his email of today (1.28PM) is to be provided by way of return email by no later than 4.00PM today. If such information is not provided, Mr Diener’s application may be dismissed without further notice to him.
Yours faithfully”

At 3:28pm on 25 November 2022, the Applicant sent the following email (Email 14 (Applicant)) to my Chambers in reply:

“Hi
We find the attitude and insensitivity to Greg’s Mental health from the deputy commissioner’s department and you the writer of not in good faith
We will be writing to the president of the commission on the way you have treated Greg.
Greg’s Mental health and well being is paramount to any proceeding
For the Commission to push Greg to appear
in his current state is beyond comprehension
The non factual comments and presumptions of Greg’s Mental health and what he should have know in your opinion via email Is outrageous.
Regards Mrs Muncaster
Greg Diener”

Legislative Provisions

Section 587 of the Act 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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the 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)The FWC may dismiss an application:

(a)on its own initiative; or

(b)on application.”

In Rebecca Tomas v Symbian Health[2], Commissioner Gooley (as she then was) correctly stated the following with respect to the operation of s.587 of the Act:

“Section 587 gives [the Fair Work Commission] the power to dismiss a matter. Section 587(a), (b) and do not limit [the Fair Work Commission’s] power to dismiss matters for other reasons.”[3]

Consideration

The Applicant has failed to comply with the Commission’s direction to file and serve evidence in support of his assertion that he was an “employee” of the Respondent, who was “dismissed” by the Respondent.[4]

On 22 November 2022, in Email 1 (Applicant), the Applicant sought that the telephone hearing set down some eight days later (on 30 November 2022) be adjourned on the basis that he needs to find alternative legal representation. However, he fails to explain in that adjournment request the steps that he has taken to find an alternative lawyer post 18 November 2022, for example, via internet searches, the sending of emails, or the making of phone calls or appointments to obtain an alternative lawyer. He also fails to identify a likely date upon which he is likely to obtain legal representation. Unlike in courts, legal representation is not a right in the Commission for either an employer, or an employee. In the circumstances of this case, as identified in Email 2 (Chambers), I do not accept that the Applicant’s request to adjourn the proceedings to find legal representation (on some unknown date into the future) was a proper basis upon which to adjourn the telephone hearing set down for 30 November 2022.

Around four hours after the Applicant first made his request for an adjournment of the telephone hearing to find a lawyer, the Applicant again sought an adjournment of the telephone hearing, but this time on an alternative basis, namely that he was “not well enough to cope”. In support of this assertion, the Applicant attached correspondence from a Registered Psychologist, Mr Robertson.

As set out in Email 5 (Chambers), having considered the correspondence from Mr Robertson, I formed the view that the Applicant was not incapacitated, and that given that the hearing was to be conducted by telephone, it would not necessitate the Applicant leaving his house. Indeed, whilst Mr Robertson’s correspondence states that the Applicant has told Mr Robertson that he is “struggling to leave the house”, it does not state that Mr Robertson himself has made any specific assessment in that regard, or that the Applicant has been clinically assessed as being incapacitated or otherwise unable to communicate or make telephone calls.

In his email in reply, Email 6 (Applicant), the Applicant goes well beyond what is set out in Mr Robertson’s correspondence, and asserts that he is “not mentally fit for the hearing”, and says that he saw his Doctor the day before (on 22 November 2022), and will be seeing his Doctor the day after (on 24 November 2022). However, in Email 9 (Applicant), the Applicant in his email to “Dr Nick” (who I assume is a general practitioner) says that he will be talking to Dr Nick at his 2:00pm appointment, not on 24 November 2022, but on 30 November 2022. In other words, it appears from Email 9 (Applicant) that the Applicant had made an appointment with Dr Nick for the same time that the telephone hearing is listed before the Commission, i.e. at 2.00pm on 30 November 2022.[5]

In response to the Show Cause Email, Ms Muncaster, on behalf of the Applicant, states in Email 10 (Applicant) that the Applicant is “recovering at a health retreat”. I note that the Applicant’s purported attendance at this health retreat is inconsistent with the Applicant’s statement to Dr Robertson that he is “struggling to leave the house”.

Ms Muncaster also asserts (in Email 10 (Applicant)) that the Applicant consulted his doctor the day before, has been deemed unfit “for any business” (whatever that means) for two weeks, and that the medical certificate is in the mail. It is not clear to me, in this day and age, why a medical certificate would be “in the mail” (as opposed to being scanned and/or emailed). This is especially so in circumstances where the Applicant’s alleged incapacity (or unfitness) is a live issue before the Commission that is, from the Applicant’s perspective, in need of urgent clarification.

At the time Email 10 (Applicant) was received by my Chambers, it was equally of concern to me that the email from Ms Muncaster was using the Applicant’s email address (not Ms Muncaster’s email address) and had a last line in the email that reads “Sent from my iPhone”. In other words, many of the emails sent to my Chambers by the Applicant himself (using the same email address) have the same last line, identifying that these emails were being sent by the Applicant from his personal iPhone. However, Email 10 (Applicant) implies that the Applicant is not physically present with Ms Muncaster, as he is purportedly “recovering at a health retreat”. In other words, if the Applicant is absent and away recovering at a health retreat, why would Ms Muncaster be sending emails from the Applicant’s iPhone, using his email address.

Instead of responding to the basic requests for information and particulars as to the health retreat he is purportedly recovering at (see Email 11 (Chambers)), Ms Muncaster’s response (per Email 12 (Applicant)) was to advise my Chambers that the provision of such information is personal, and should not have to be disclosed.

The difficulty with Ms Muncaster’s response (as contained in Email 12 (Applicant)) is that it is the Applicant himself who seeks the indulgence of the Commission to have non-compliance with directions waived, timelines extended, and the hearing date adjourned. In doing so, he has, through Ms Muncaster, made representations to the Commission as to his circumstances, namely, that he is presently at a health retreat.

The basic features of the Commission’s powers and procedures under the Act, as set out by the Full Bench of the Commission in United Workers' Union v Hot Wok Food Makers Pty Ltd[6], include:

a)   the Commission must perform its functions and exercise its powers in a manner that is, among other things, quick, informal and avoids unnecessary technicalities (s.577(b));

b)   the Commission may, subject to the Act, inform itself in relation to any matter before it in such manner as it considers appropriate (s.590(1));

c)   the Commission may inform itself by, among other things, conducting inquiries and undertaking research (s.590(2)((f) and (g));

d)   the Commission is not bound by the rules of evidence and procedure in relation to a matter before it (s.591); and

e)   subject to the Act, the Commission is not required to make a decision in relation to an application in the terms applied for (s.599).[7]

In Email 14 (Applicant), the Applicant, through Ms Muncaster, seeks to assert that he should be entitled to not comply with directions, and have the telephone hearing in this matter adjourned. Further, he asserts that any request (by the Commission) for him to properly evidence, explain and justify the specific nature of his purported incapacity to attend a telephone hearing, and adequately substantiate (via objective documentary evidence) his claim that he is currently “recovering at a health retreat”, are made in bad faith. I must disagree.

The Applicant has not proffered the name of the health retreat he has represented to the Commission that he is “recovering” at. His assertion that he is being pushed to appear is unfounded in circumstances where he has not responded to my suggestion that the resolution of these proceedings be conducted on the papers (see Email 7 (Chambers)). Whilst I accept that the Applicant is suffering from mental health issues, the existence of such mental health issues in and of themselves do not warrant the Commission’s acquiescence to the indulgences requested by the Applicant. The Applicant has put no evidence before me, despite having repeated opportunities to do so, that states that the Applicant is incapacitated such that he is unable to comply with directions, or otherwise attend upon a telephone hearing.

All in all, I find that the Applicant has failed to comply with directions, failed to properly substantiate such non-compliance, and failed to provide basic and straightforward information to the Commission when requested to do so. Accordingly, on the basis of this finding, and for these reasons set out in this decision, pursuant to s.587(3)(a) of the Act, I dismiss the Application. An Order dismissing the Application will be published contemporaneously with this decision.

DEPUTY PRESIDENT

[1] I note that Mr Vince Rogers, Partner, and Mr Calum Woods, Senior Associate, of Lander & Rogers Lawyers, are identified in the materials filed by the Respondent as being lawyers who will be seeking permission to appear on behalf of the Respondent.

[2] [2011] FWA 5458

[3] Ibid, at [57].

[4] See Direction [3] of the Directions issued on 10 November 2022.

[5] This being the hearing date and time to which the Applicant has been aware of since the directions were first issued on 10 November 2022.

[6] [2022] FWCFB 158.

[7] Ibid, at [16].

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