Joe Cai v Serco Citizen Services Pty Ltd
[2023] FWC 280
•3 FEBRUARY 2023
| [2023] FWC 280 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Joe Cai
v
Serco Citizen Services Pty Ltd
(U2022/10544)
| COMMISSIONER WILSON | MELBOURNE, 3 FEBRUARY 2023 |
Application under s.399A to dismiss application for an unfair dismissal remedy –s.399A application granted. Application refused. Matter to be relisted.
Through an application made to the Commission on 24 January 2023 the Respondent in this matter, Serco Citizen Services (Serco), seeks that the application for unfair dismissal remedy made against it by its former employee Mr Joe Cai (the Applicant) be dismissed pursuant to s.399A of the Fair Work Act 2009.
Serco’s dismissal application was motivated by Mr Cai’s failure to attend the proceedings dealing with the merits of his application scheduled for Wednesday 18 January 2023. At 4:56 PM on Tuesday 17 January 2023, the day prior to the scheduled proceedings, Mr Cai contacted my Chambers by phone and left a voicemail advising he had a migraine and would not be attending the proceedings on the following day and sought that it be adjourned to another date. Due to the short notice of the Applicant’s notification, he was notified at 9:08 AM on Wednesday 18 January 2023 that the matter would proceed as scheduled at which time he could make an adjournment application. The same correspondence advised Mr Cai that if he does not attend, he will need to provide medical evidence of his incapacity.
When the matter was called on shortly after 10:00 AM Mr Cai did not attend, with the only appearance being from Serco. I noted Mr Cai’s absence and how the Commission had been made aware of the situation. The Commission’s concern about the Applicant’s failure to attend the proceedings was expressed and recorded in transcript. Further, Mr Cai was directed to provide a medical certificate in support of his inability to attend the proceedings and to ensure such document, if provided, set out detailed reasons for his absence.
Also in the 18 January proceedings, the lawyer for Serco, Ms Fisch, expressed concerns about the wasted resources expended by her client in preparing for the proceedings, which included ensuring witnesses were available to give evidence on behalf of Serco, one of whom had returned early from annual leave.
Subsequent to the 18 January proceedings, on 24 January 2023, the Respondent made application for the Applicant’s unfair dismissal remedy application to be dismissed pursuant to s.399A of the Act. It was argued by the Respondent that Mr Cai had not only failed to attend the 18 January 2023 proceedings, but an earlier directions mention in November and then had failed to file documents in support of his case as directed by the Commission. Serco also submitted that the Applicant had not complied with the direction given to him in the 18 January 2023 proceedings to provide medical evidence explaining the reason for his non-attendance.
The Respondent’s dismissal application was heard by me on Monday 30 January 2023. Ms Fisch, Special Counsel with Clyde and Co appeared for Serco with permission from me and Mr Cai appeared for himself.
The Applicant has put forward an explanation for his non-attendance and provided several medical certificates to the Commission which may be summarised as follows,
Mr Cai says he developed what he describes as being a migraine over the course of Tuesday, 17 January 2023. He did not seek any medical attention that day and waited until 4:56 PM before communicating to my chambers he was unable to attend the hearing next day.
On Wednesday, 18 January 2023, after being directed to do so by the Commission, he consulted a Dr Shen who stated Mr Cai “is being treated for a medical condition and for the period from 18/01/2023 to 19/01/2023 inclusive He/She will be unable to work/study”.
In a certificate dated Friday, 20 January 2023 Dr Shen elaborated that “Mr Cai stated he could not attend the hearing meeting due to headache related to stress and insomnia”.
In a certificate dated Saturday, 21 January 2023 a Dr Wang stated Mr Cai “has had worsening headache due to anxiety and stress”.
In a further certificate dated Thursday, 26 January 2023 Dr Shen stated he had “seen Mr Cai via phone consult and face to face consults since September, 2022 due to ongoing anxiety, for which he has been suffering from chronic headache and insomnia”.
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”.
The legislative context and operation of s.399A was discussed at length by the Full Bench in the matter of Cole v Roy Hill Station Pty Ltd.[1] In that decision the Full Bench examined the Explanatory Memorandum to the 2012 amendments to the Act which led to the introduction of s.399A noting that;
“… The Courts have long held that the power to dismiss a substantive application should only be exercised cautiously and sparingly; a fortiori where, as here, the appellant has sought orders for relief for his alleged unfair dismissal. This is so because it results in the complete extinguishment of an applicant’s right to have his/her application for relief orders under beneficial legislation, heard and determined according to law. In short, the application is dismissed before an applicant has had his/her ‘day in court’, or as the appellant pleaded, he just wanted his case heard.”[2]
The same Full Bench noted the earlier decision in Micheletto v Korowa Anglican Girls’ School in which it was observed,
“[14] It is implicit in the statutory provisions which we have referred to that once an applicant has elected to have his or her application determined by arbitration he or she acquires a right to have the case heard. There is a corresponding duty in the Commission to hear the applicant's case. The nature of the applicant's right is, in the time-honoured phrase, a right to their day in court. The right to a hearing is not unqualified. Circumstances may render it just that something less than a full hearing is appropriate. For example, the Act specifically provides for summary dismissal of an application if there is clearly no jurisdiction (s.170CEA) or if the applicant fails to prosecute its case (s.170CIB). There may be other circumstances in which an application might be dismissed without a full hearing and without infringing the rules of procedural fairness. …”[3]
In applying this reasoning, I note the following for the purposes of determining Serco’s dismissal application,
Mr Cai did not attend the mention proceedings on 25 November 2022 “due to prior arrangement” which he advised to the Commission the day before on 24 November 2022. On that occasion the mention hearing proceeded in the Applicant’s absence and Mr Cai was cautioned by my Chambers about failing to attend further proceedings before the Commission and about failing to comply with its directions since to do so may lead the Respondent to make an application pursuant to s.399A of the Act
Mr Cai did not comply with the Commission’s filing directions which obliged him to file material in support of his case by no later than 14 December 2022. While the Applicant filed certain documents, they were not in the form of an Outline of Submission or Witness Statement as directed which led him to be cautioned about these things and directed to resubmit the documents in the correct format. Mr Cai later provided material on 21 December 2022 which was in sufficient form as to be characterised as complying with the caution given to him by my Chambers.
Mr Cai failed to attend the proceedings scheduled to examine the merits of his application on 18 January 2023.
While I am satisfied that there is no reasonable explanation on the part of Mr Cai for failing to attend the mention hearing on 25 November 2022 such does not lead me to find that his unfair dismissal application should be dismissed for that reason alone. The mention hearing was for the purposes of programming only and the outcome of the hearing was to issue the hearing directions distributed to the parties on 25 November 2022.
I am not persuaded that the failure by Mr Cai to file materials in support of his application in conformity with the Commission’s directions was an unreasonable failure on his part to comply with a direction or order of the Commission. He attempted to provide what he considered to be relevant materials and then remedied his error when it was pointed out to him by my Associate.
The third failure of Mr Cai to comply with the Commission’s directions, namely his failure to attend the proceedings scheduled for 18 January 2023 is in a more significant category than either or both the first two. The full day had been set aside by the Commission to deal with Mr Cai’s application. The Commission’s timeliness benchmarks require the listing of unfair dismissal applications within 70 days of the matter being assigned to a member to be dealt with, that is before 31 January 2023. The state of my diary in the first three months of 2023 is such that alternative listing dates are difficult to find. Further, the respondent had to ensure the availability of three witnesses for the giving of evidence to the Commission and to be available for cross examination if needed by Mr Cai. One of those witnesses, Ms Long had returned early from annual leave specifically for the purpose of this matter.
Mr Cai’s explanation of his non-attendance is set out above, and puts forward that the combination of several afflictions, headaches, migraine, and anxiety prevented his attendance. His doctors have provided some basic medical certificates which do not provide anything other than a generalised illumination of Mr Cai’s condition and do not conclusively say he was incapacitated to such an extent he could not attend the Commission’s proceedings.
In the circumstances though, the certificates establish the Applicant has a history of some length of headaches and anxiety. They do not, though, certify that the symptoms were so debilitating as to prevent his attendance at the Commission on Wednesday, 18 January 2023 or that he would have been unable to conduct his case if he did attend.
Even so, I do not find from the circumstances that the Applicant has unreasonably failed to attend a conference or hearing of the Commission. He had the symptoms described by his general practitioners and thought they were sufficient as to cause a postponement of the proceedings.
In reviewing all of the circumstances of the case management of this matter I do not propose to dismiss Mr Cai’s application at this time, pursuant to s.399A. There is sufficient doubt about Mr Cai’s ability to attend on 18 January 2023 as to cause me to exercise a discretion in his favour on this occasion.
That discretion, though, may well not be exercised in Mr Cai’s favour again.
A conference or hearing to deal with and determine the merits of Mr Cai’s application will be rescheduled and, because of the challenges within my diary, that is unlikely to be before late March 2023. My Associate will shortly make contact with both parties about their availability.
Through this decision Mr Cai is now on notice that in the event of any further failures on his part to either comply with directions given by the Commission or to attend the rescheduled conference or hearing without reasonable advance notice and for a reason acceptable to the Commission I will give consideration to dismissing his application pursuant to s.587 of the Act. In this regard Mr Cai should be aware that a failure to comply with further directions given to him or to attend the conference or hearing in relation to his case may be sufficient for me to form a view that his application has no reasonable prospects of success with him being unable or unwilling to present his case in any detail to the Commission for consideration in accordance with the criteria set out within Part 3 – 2 of the Act.
Headaches and feelings of anxiety are hardly unique to Mr Cai in matters of this type. Many applicants and indeed many witnesses and respondents also have feelings of distress about the need to attend Fair Work Commission in relation to proceedings they have either initiated or must respond to. Indeed, many such people successfully attend and present despite such symptoms they may be experiencing.
If Mr Cai is of the view that he is unlikely to be available for legitimate medical reasons then it will be necessary for him to consult with a medical practitioner before the date in question and to provide a full explanation to the Commission about his circumstances also well before the date in question. In this regard it will be insufficient for Mr Cai to simply present a medical certificate of the type which he has done so far. With respect to his medical practitioners, it will likely be insufficient for them to merely repeat what Mr Cai has said to them about his symptoms rather than putting forward any proper opinion as to the symptoms he may or may not actually be experiencing.
It will also be the case that Mr Cai will need to attend the Commission’s premises in person if that is the format to be adopted by the Commission. Alternatively, if the mode of the rescheduled proceedings is through Microsoft Teams he will need to attend with his camera turned on.
On the last occasion which was conducted by video through Microsoft Teams Mr Cai initially declined to activate his camera saying that he had some facial disfigurement which caused him not to wish to do so and then when he was directed to turn the camera on, he said that the camera was not working. Neither of those circumstances are satisfactory and at best are extremely disrespectful both to the other parties involved in the matter as well as to the Commission. When the matter is rescheduled Mr Cai will be required to comply with the Commission’s directions either for attendance in person or through video and will be expected to put in place the necessary arrangements for doing so well prior to the rescheduled conference or hearing.
As a result of the foregoing the Respondent’s application to dismiss Mr Cai’s unfair dismissal application remedy is itself dismissed.
COMMISSIONER
[1] [2019] FWCFB 2925.
[2] Ibid, [31].
[3] [2003] AIRC 1391 [PR940392], [14]
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