Jan Hermiz v Airline Cleaning Services Pty Ltd
[2023] FWC 1859
•4 AUGUST 2023
| [2023] FWC 1859 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jan Hermiz
v
Airline Cleaning Services Pty Ltd
(U2023/4038)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 4 AUGUST 2023 |
Application for an unfair dismissal remedy – Application dismissed pursuant to s.399A of the Fair Work Act 2009.
On 10 May 2023, Mr Jan Hermiz made an application to the Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Respondent to this application is Airline Cleaning Services Pty Ltd (the Respondent).
In his Form F2 – Unfair Dismissal Application (Form F2), Mr Hermiz provided a mobile telephone number and an email address, both of which have been used by the Commission throughout the conduct of this matter. On no occasion has an email sent from the Commission to Mr Hermiz received a response indicating that it was “undeliverable”.
On 22 June 2023, the matter was allocated to me following a staff conciliation which did not resolve the dispute. On 26 June 2023, an email was sent from my Chambers to the parties’ nominated email addresses attaching directions (26 June Directions). The email recommended the 26 June Directions be read carefully and advised the parties that:
the 26 June Directions set out when the parties were required to file their written material and the Arbitration Conference/Hearing date;
the 26 June Directions contained hyperlinks to Fair Work Commission template documents which would assist them in preparing their material;
it was important that the dates on which the parties were required to file written material were complied with because a failure to comply with the 26 June Directions might result in the application being dismissed for non-compliance (in the case of Mr Hermiz) or alternatively, the material not being taken into account when a decision was made.
When emailed to Mr Hermiz, the 26 June Directions provided three weeks for him to file and serve his Outline of Argument, Statement of Evidence and Document List (i.e. by no later than 3pm on Monday 17 July 2023).
At 12:24pm on 17 July 2023, Mr Hermiz sent an email to my Chambers which stated:
“Can I please have more time to find lawyer for myself to make my documents ready please”
I determined that a mention ought be held and an email to the parties in response was sent from my Chambers at 2:17pm on 17 July 2023, which notified them that I had determined to list the matter for a telephone mention at 10am on Tuesday 18 July 2023 so as to discuss Mr Hermiz’s request and the ongoing management of the file.
Both parties attended the telephone mention on 18 July 2023. An Arabic interpreter was present for the purposes of assisting Mr Hermiz. During the mention, I emphasised that Mr Hermiz had an obligation to prepare his case but had yet to have done so, with his only apparent activity during the three weeks following receipt of the 26 June Directions being the making of an appointment to consult a lawyer on 21 July 2023.
The Respondent acknowledged it was open to me to vary the 26 June Directions so as to provide Mr Hermiz with additional time but submitted this raised the prospect of it being prejudiced and the other steps in the 26 June Directions and arbitration dates becoming impacted. I nonetheless determined that I should provide Mr Hermiz with another opportunity by varying the 26 June Directions and I advised Mr Hermiz that he would need to give his application far more attention than he had done so to that point in time. I also warned Mr Hermiz that he would only have a very short period of time to prepare and submit his material after the appointment with his lawyer on 21 July 2023. I cautioned Mr Hermiz that a failure by him to comply with varied Directions would leave him exposed to an application by the Respondent to have his unfair dismissal application dismissed.
I advised the parties that my varied Directions would be sent to them by email and that it was very important that Mr Hermiz took a copy of them to the appointment with his lawyer so that his lawyer knew what was required and could provide him with advice. I informed Mr Hermiz that it was very important for him to comply with the varied Directions and foreshadowed there would be a further telephone discussion about his unfair dismissal application in the event he did not comply with them.
The varied Directions were sent to the parties by email at 2.42pm on Tuesday 18 July 2023. They afforded Mr Hermiz an extra week, until 3:00pm on Wednesday 26 July 2023, to file his Outline of Argument, Statement(s) of Evidence and Document List. The varied Directions also outlined some additional changes to the 26 June Directions but the previously set Arbitration dates of 23 August 2023 and 24 August 2023 were maintained due to my existing diary commitments and some foreshadowed availability issues associated with the Respondent, which combined to prevent rescheduling the arbitration to dates any later.
At 5.14pm and 5.36pm on Tuesday 25 July 2023, Mr Hermiz sent emails to my Chambers, both of which stated:
“Thank for the time u gave to me but I can’t do my do document due to I dont have enough to pay for lawyer thank u”
A reply email was sent from my Associate, which included the following:
“The Deputy President will not grant you a further extension to file your material.
Your written material is due at 3.00PM tomorrow in accordance with Deputy President Clancy’s Amended Directions dated 25 July 2023 (which are attached to this email).
Please note that the Directions contain hyperlinks to the following documents which you can fill out in order to prepare your materials:
• the Applicant’s Outline of Argument as to why the dismissal was harsh, unjust or unreasonable;
• the Applicant’s Statement(s) of Evidence; and
• the Applicant’s Document List and copies of each document on that list.
You can access these documents by “clicking” on the hyperlink in the Directions.
Alternatively, I have attached copies of these three documents to this email for you to review, complete and send back to Chambers and the Respondent…”
No material was received from Mr Hermiz by 3.00pm on 26 July 2023.
Accordingly, an email was sent to the parties at 12.28pm on 27 July 2023 detailing that because Mr Hermiz had not complied with the Amended Directions dated 18 July 2023, the matter would be listed for a Non-compliance hearing by telephone at 3pm on 28 July 2023. A Notice of Listing was subsequently sent to the parties via email, and they were requested to provide their telephone numbers in advance to ensure they could be contacted.
The Non-compliance hearing scheduled to take place via Microsoft teams at 3pm on 28 July 2023 could not proceed in any substantive way. There were audio issues associated with the connection to the telephone number being used by Mr Hermiz and multiple attempts to connect through to the telephone of the Arabic interpreter engaged to assist Mr Hermiz were unsuccessful. As such, the matter was adjourned until 1 August 2023 so that Mr Hermiz and an interpreter could attend the Commission premises.
When the Non-compliance hearing resumed on 1 August 2023, I granted the Respondent permission to be represented by a lawyer, being satisfied this was appropriate in relation to s.596(2)(a) of the Act and noting that Mr Hermiz did not object to the granting of permission.
Mr Hermiz advised he could not access Centrelink payments for two months after his termination because of the reason the Respondent had given for his termination in the separation certificate and therefore could not save the money he required to consult a lawyer. Mr Hermiz disclosed that the cost of his consultation with the lawyer on 21 July 2023 was $800.00. He said this was for advice only and because he could not afford to pay a lawyer to represent him at the arbitration, he had been advised to carry on unrepresented. Mr Hermiz declared he was unable to conduct his case by himself because he did not know what to do.
The Respondent submitted the Commission ought dismiss Mr Hermiz’s unfair dismissal application pursuant to s.587 of the Act and also made an oral application pursuant to s.399A of the Act. I waived compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s oral application pursuant to s.399A. In support, the Respondent submitted:
The explanation of Mr Hermiz was not a sufficient reason for his non-compliance.
The Commission had provided template documents to assist Mr Hermiz.
Mr Hermiz has had the opportunity to assess the forms and complete them with whatever assistance he chooses.
Another week had passed since 26 July 2023 and there was ‘nothing to show for it’.
There was prejudice to the Respondent in three respects as a result of the matter having been repeatedly delayed, namely:
(i)The Respondent had been deprived of a proper opportunity to prepare its response to Mr Hermiz’s case;
(ii)The Respondent had incurred legal costs on each occasion it was required to deal with the non-compliance of Mr Hermiz; and
(iii)Employees and contractors of the Respondent have been left in a state of uncertainty as to how the Commission will deal with the ‘serious and scandalous’ allegations made in the Form F2 filed by Mr Hermiz.
It is not fair on either the individuals concerned or the Respondent that the matter be drawn out further.
Mr Hermiz had completed the Form F2 on his own and had filed it without legal representation such that it could have been expected that he would complete other documents and yet he had not done so.
I then adjourned the Non-compliance hearing and provided Mr Hermiz with a copy of the text of s.399A of the Act so that he could prepare some comments in response. I also suggested that Mr Hermiz might also consider whether he wanted to advance a proposal to resolve the dispute by agreement.
Upon resumption, the parties briefly discussed resolving the dispute, but it quickly became apparent that they held fundamentally different positions in relation to what settlement might involve. As such, I proceeded to receive the submissions of Mr Hermiz in relation to the s.399A application. In essence, the position Mr Hermiz articulated was that he was not capable of preparing material in response to directions from the Commission by himself. Simply stated, Mr Hermiz said “I can’t do it”. Further stating that he would have to engage someone professionally to prepare his materials, Mr Hermiz said he required more time so that he could save the necessary funds.
Consideration
Section 399A of the Act provides 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.
Relevantly, s.399A provides that on application by an employer, the Commission has the discretion to dismiss an unfair dismissal application on the basis that there has been unreasonable non-compliance with directions of the Commission.
The applicable Explanatory Memorandum said of the proposed s.399A that the intention of this provision is “to address the small proportion of applicants who may pursue claims in an improper and unreasonable manner. 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.”[1]
In this matter, Mr Hermiz has failed to comply with both directions and varied directions of the Commission requiring him to file and serve material. The Commission has imposed these requirements so that Mr Hermiz’s application for unfair dismissal can be heard and determined in a timely manner.
The role of case management was discussed by the Full Bench of the Australian Industrial Relations Commission in Ghalloub v Aon Risk Services Australia Limited (Ghalloub)[2]. In summary, that decision outlines the following principles:
1. the starting point of any consideration an application to dismiss is that an applicant is entitled to have his or her case heard;
2. directions play an important role in case management;
3. accepting the importance of case management principles, only in extreme circumstances should a party be shut out from litigating an issue which is fairly arguable;
4. the circumstances of each case is central;
5. a history of non-compliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period of time is relevant;
6. continuing non-compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.
While not an exhaustive list of matters that may be considered, I will have regard to the approach of the Full Bench in Ghalloub, in deciding the application that has been made pursuant to s.399A.
Mr Hermiz was dismissed nearly fifteen weeks ago, on 20 April 2023. It was twelve weeks ago, on 10 May 2023, that he made his unfair dismissal application. Mr Hermiz has had the opportunity since these dates to start preparing for the presentation of his case. I also observe that, at the Non-compliance hearing, Mr Hermiz declared he had read the Form F3 – Employer response to unfair dismissal application (Form F3). It was evident he understood the allegations it contained, took issue with them, and wanted to disprove them.
I consider Mr Hermiz has been given sufficient time to comply with both the 26 June Directions and the varied Directions. On three separate occasions he has been provided with access to template documents that would assist him in doing so. Mr Hermiz was aware from the initial email from my Chambers dated 26 June 2023 and my comments at the Mention held on 18 July 2023 that it was very important for him to comply firstly with the 26 June Directions and then the varied Directions. Mr Hermiz was also made aware that if he did not, there was the prospect of a s.399A application being made by the Respondent. He was advised at the 18 July 2023 Mention that there would be follow up from the Commission should he not comply with the varied Directions.
While I have noted that Mr Hermiz has intended to obtain legal assistance for the preparation of his material and the expense of doing so has been an issue, his inability to retain a lawyer is no longer an acceptable reason for his non-compliance. Mr Hermiz has to date had five weeks to put material to the Commission in response to directions from the Commission. He was informed on 25 July 2023 that no further extension would be granted and that his material remained due by 3.00pm on 26 July 2023. Despite the listing of a Non-compliance hearing and the passing of a further week, Mr Hermiz still does not appear to have made an attempt to start preparing his materials. He simply says he can’t.
I do not accept it has not been possible for Mr Hermiz to comply with either the 26 June Directions or the varied Directions. Applicants routinely represent themselves in unfair dismissal proceedings before the Commission. They do so utilising extensive information available on the Commission’s website and the very template documents that have been provided to Mr Hermiz on multiple occasions. I note that Mr Hermiz has previously demonstrated the ability to complete and file the Form F2 without apparent legal assistance.
By way of contrast, the Respondent has taken the Commission process seriously. It has obtained legal advice so it could respond to the application made by Mr Hermiz, completed a Form F3, attended the 18 July 2023 Mention and the two listings of the Non-compliance hearing and incurred all associated expenses. It remains deprived of the opportunity to prepare a fulsome response to Mr Hermiz’s case and has been subject to a proceeding that is not progressing according to a reasonable timeframe.
The sixth principle from Ghalloub outlined above focusses on the circumstances of the Respondent, which are undoubtedly a relevant consideration arising from the applicable objects of the Act. In Viavattene v Health Care Australia (Viavattene),[3] the Full Bench observed:
“... It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).”[4]
The objects of Part 3-2 of Chapter 3 the Act are articulated in s.381 of the Act, which provides:
“381(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.
381(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.”
More broadly, the Commission is committed to hearing and determining unfair dismissal applications in a timely manner. Members of the Commission are generally expected to list an arbitration conference/hearing to commence within 70 days of an unfair dismissal file being allocated to them and directions are made with this in mind. Members are also expected to determine an unfair dismissal application by publishing a decision in writing as soon as possible after the completion of a hearing. These requirements are imposed so as to provide both parties to an unfair dismissal application with finality without undue delay.
The continuing non-compliance of Mr Hermiz has occurred in circumstances where he was clearly informed about:
a.the necessity to comply with the 26 June Directions and the varied Directions;
b.the resources available to assist him to prepare the requisite materials (which have been provided to him on three separate occasions);
c.the Respondent’s concerns in relation to his non-compliance; and
d.the potential for there to be an application made to have his unfair dismissal application dismissed as a consequence of his non-compliance with 26 June Directions and the varied Directions.
Mr Hermiz now has a history of non-compliance with directions of the Commission and has given no indication that he intends to have his unfair dismissal application ready for arbitration within an acceptable period of time. Mr Hermiz has been given a number of chances to file and serve material in response to directions of the Commission. He appears to have elected to not even try to put anything before the Commission by himself even though he was able to complete and file a Form F2 within the required 21-day time period after his dismissal. In all the circumstances of this matter, I am satisfied that the failure of Mr Hermiz to comply with directions of the Commission has been unreasonable and that this is an appropriate case for the Commission to exercise its discretion under s.399A of the Act and proceed to dismiss the unfair dismissal application Mr Hermiz has made. Accordingly, Mr Hermiz’s unfair dismissal application is dismissed.
DEPUTY PRESIDENT
Appearances:
J Hermiz on his own behalf.
Mr Maroney for Airline Cleaning Services Pty Ltd.
Hearing details:
2023.
Melbourne.
August 1.
[1] Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161-163].
[2] Print PR956665, 21 March 2005, Giudice J, Hamilton DP and Larkin C.
[3] [2013] FWCFB 2532
[4] Ibid at [39].
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