Lui Cheng v Griffith University

[2020] FWC 1672

[2020] FWC 1672

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lui Cheng
v
Griffith University
(U2018/11728)

COMMISSIONER BISSETT MELBOURNE, 30 MARCH 2020

Application for an unfair dismissal remedy.

[1] Ms Lui (Iris) Cheng commenced employment with Griffith University (the University) as a Student Experience Officer on 26 March 2018. Her employment was terminated for unsatisfactory performance on 25 October 2018. On 14 November 2018 Ms Cheng made an application pursuant to s.394 of the FW Act seeking relief from unfair dismissal.

[2] Ms Cheng’s application has not progressed in any substantive sense since being made. From the time directions were issued for the filing of materials in support of her application, Ms Cheng has sought extensions to the dates she is required to file on the basis of a medical condition. Ms Cheng has consistently sought that the details of her medical condition not be disclosed to representatives from the University. Ms Cheng’s application has now been adjourned on a number of occasions until such time as she is fit to proceed but with a requirement that she provide updated medical advice by dates specified by the Commission (generally every 8-12 weeks).

[3] On receipt of her most recent medical advice my chambers sought the permission of Ms Cheng to provide details of her condition via the medical report to the Respondent so that it might properly respond to her request for a further adjournment of the matter. The Respondent agreed to provide strict confidentiality undertakings in relation to any advice as to Ms Cheng’s medical condition. Despite this, Ms Cheng vehemently opposed the provision of that information to the University so that it might provide a properly considered response to Ms Cheng’s latest request for an adjournment.

[4] In these circumstances, and where it was 16 months since Ms Cheng’s employment had been terminated and in circumstances where it was not apparent that Ms Cheng’s medical condition might change (no prognosis having been given by her treating doctors), I advised Ms Cheng that I was considering dismissing her application on the grounds that it had no reasonable prospect of success as it did not appear she would be able to prosecute the application.

[5] The University has previously made an application that Ms Cheng’s application be dismissed as it had no reasonable prospect of success. At my request and because the application was listed for mention before Deputy President Mansini in early November 2019, the University did not pursue its application.

[6] Having advised Ms Cheng that I was considering dismissing her application I also issued directions which required that Ms Cheng and the University to file submissions on the matter.

[7] This decision is in relation to whether I should dismiss Ms Cheng’s application pursuant to s.587 of the FW Act.

HISTORY

[8] As detailed above Ms Cheng was employed by Griffith University, her employment was terminated for unsatisfactory performance on 25 October 2018 with her application for relief from unfair dismissal being made on 14 November 2018.

[9] Ms Cheng’s application was initially listed for hearing on 14 and 15 February 2019. The directions issued required Ms Cheng to file and serve her submissions and evidence by Thursday 3 January 2019 (and the University by 31 January 2019).

[10] On 13 December 2018 Ms Cheng sought an extension to the date by which she was required to file her material.

[11] On 14 December 2018 Ms Cheng confirmed that she sought an extension and advised that she had a medical certificate to support her request. On 21 December 2018 she requested that the basis of her request for an extension (including the medical certificate) not be provided to the University. On 24 December 2018 Ms Cheng was granted an extension of time to file her materials until 17 January 2019. The hearing of the application was adjourned until 25-26 February 2019.

[12] The medical information from Ms Cheng suggested she was incapacitated until mid-January.

[13] On 16 January 2019 (at 12:21am) Ms Cheng sought a further three week extension of the date by which she was required to file her material with the Commission. She filed multiple medical certificates in support of the further extension. She requested that the medical information remain confidential. The medical certificate, as well as providing details of Ms Cheng’s condition, also indicated that she was unable to prepare documentation as required and should be given a further 3 weeks within which to do so. Ms Cheng again requested that the information in the medical certificate and email not be provided to the University. As a result of this request the hearing was adjourned until 11-15 March 2019 and Ms Cheng was required to file her material by 4 February 2019.

[14] On 31 January 2019 Ms Cheng requested information as to why she was not granted the 3 week extension sought but only 2 weeks.

[15] At the time of granting this extension Ms Cheng was offered access to the Workplace Advice Service on the recommendation of the National Practice Leader for Unfair Dismissal matters.

[16] On 1 February 2019 Ms Cheng sought a further 3 week extension of time within which to file her materials. Again she provided a medical certificate but asked that it not be provided to the University. The University was advised of the extension request and indicated it objected to the extension being granted.

[17] On 4 February 2019 Ms Cheng again emailed the Commission and requested an extension of 4 weeks within which to file her submissions. Ms Cheng attached a copy of a medical certificate which supported her request.

[18] On 6 February 2019 an email was sent to Ms Cheng and the University indicating the Deputy President Clancy had determined that the matter should be stayed until such time as Ms Cheng produces a report that advises she is medically fit to prepare for and participate in a hearing of her application.

[19] On the basis of the stay, the arrangement for the Workplace Advice Service was cancelled.

[20] On 8 February 2019 Ms Cheng sought information as to her request for a 4 week extension within which to file her materials. The decision to stay her application was explained to her by the Commission in writing on 15 February 2019.

[21] On 25 February 2019 Ms Cheng sought information as to her referral to the Workplace Advice Service. She was advised in writing that this was paused until such time as she provided medical evidence that she was fit to proceed.

[22] On 2 April 2019 Ms Cheng attended the Commission’s Brisbane Registry and observed unfair dismissal proceedings from about 10.00am until 4.30pm.

[23] On 14 May 2019 the University sought an update on the status of the application, expressing its concern about the impact of the delay.

[24] On 20 May 2019 Ms Cheng again attended the Brisbane Registry and observed a hearing from 10.00am onwards.

[25] On 21 May 2019 the matter was listed for mention by telephone on 24 May 2019 before Deputy President Clancy.

[26] On 23 May 2019 Ms Cheng again attended the Brisbane Registry to observe proceedings. The same day Ms Cheng was advised that the purpose of the mention scheduled for the following day was to discuss future conduct of the matter and it should not take long.

[27] On 23 May 2019 Ms Cheng sent an email to the Commission indicating she was not fit to participate in the telephone mention scheduled for the following day. She attached a medical certificate to her email and requested that neither the email nor the medical certificate be provided to “any third party” without her consent.

[28] On 24 May 2019 Ms Cheng again advised she could not participate in a phone mention. The mention proceeded but Ms Cheng disconnected from the call. Arising from the mention it was determined that the University would file its submissions and evidence first and Ms Cheng would be required to file her material following that date. Ms Cheng was required to file her materials by 2 July 2019. A hearing date was set from 31 July – 2 August 2019.

[29] On 27 May 2019 Ms Cheng again attended the Brisbane Registry and observed hearings from 10.00am.

[30] On 1 July 2019, following a request from Deputy President Clancy, Ms Cheng provided 7 medical certificates issued since 22 May 2019 and 2 letters from treating practitioners in support of her application for an adjournment of her matter. She again requested that this information not be provided to the University. As a result of this material the Deputy President determined that Ms Cheng should be given more time to lodge her material with the Commission. Ms Cheng was granted an extension of time to file her materials of 9 weeks until 5 September 2019.

[31] On 5 September 2019 Ms Cheng emailed the Commission and advised that she wished to apply for “an adjournment until I am fit to continue”. Ms Cheng attached a supporting letter from a treating physician but again claimed confidentiality over the material and requested it not be sent to the University.

[32] The request was notified to the University but the medical advice not disclosed. The University registered its objection and applied for the application to be dismissed pursuant to s.587(1) of the FW Act.

[33] At about this time the management of the file moved to my chambers. I granted Ms Cheng an extension of time within which to file her materials for 2 months and indicated that the matter would be listed for mention in early November 2019 to discuss further programming. Ms Cheng protested the decision and provided medical reports which she again requested be treated confidentially.

[34] The application was listed for mention before Deputy President Mansini on 6 November 2019. Prior to the mention Ms Cheng contact the Commission and sought access to “legal aid services through the Commission” – a reference to the Workplace Advice Service previously offered to her. Ms Cheng was advised by the Commission that such a service was there to assist parties in the preparation for a hearing, that the mention was to discuss timing and it was not appropriate to use the limited advice service in this way.

[35] On 4 November 2019 the parties were advised that the mention previously listed for 6 November 2019 would not proceed (it was considered unlikely that Ms Cheng would attend given her correspondence with the Deputy President’s chambers).

[36] On 15 November 2019 Ms Cheng was advised by letter that she was required to provide an updated detailed medical report to the Commission by 6 January 2020 (this being later extended to 20 January 2020 as Ms Cheng’s treating medical practitioner was not available over the Christmas break).

[37] On 22 November 2019 Ms Cheng sought advice on whether she could proceed with her application even though she had a medical report saying she was not fit to participate. Ms Cheng was advised that, given the existing medical report, she would require a report that said she was now fit to proceed.

[38] On 20 January 2020 Ms Cheng provided a further medical report that indicated she was not fit to participate in proceedings and seeking a further adjournment of her case (along with a dispute she has notified) for a further 3 months.

[39] I sought from the University a confidentiality undertaking in relation to the medical report in order to obtain its informed views on the request for a further adjournment. The University indicated that it was prepared to provide such an undertaking. Despite this Ms Cheng continued to maintain confidentiality on the medical report and that it is not released.

[40] This chronology is but a partial list of the voluminous and often repetitive correspondence between Ms Cheng and the Commission and between Ms Cheng and the University and its representatives. It also does not include a number of “complaints” made by Ms Cheng as to the handling of her matter which have been referred to the complaints unit within the Commission. Ms Cheng has been advised that her complaints are not being dealt with by me.

DIRECTIONS

[41] On 13 February 2020 I issued the following correspondence to the parties (with typographical errors corrected):

The Commissioner is in receipt of correspondence from Ms Cheng in relation to her medical condition.

In accordance with s.381 of the Fair Work Act 2009 (FW Act), the Commission is obliged to provide a fair go to all parties in considering an unfair dismissal application.

Over the period since making her application (from 14 November 2018) Ms Cheng has made multiple requests to the Commission to adjourn proceedings or grant her an extension of time based on medical certificates. For these same reasons, she has refused to participate in any mentions of the application before a Member of the Commission. Further, Ms Cheng has requested that none of the medical certificates/reports be provided to the University (Respondent). To date this has been respected by the Commission. This has, however, limited the capacity of the Respondent to properly provide its views as to any, and in particular the most recent, adjournment request.

Commissioner Bissett, National Practice Leader for Unfair Dismissal matters has given careful consideration as to what should occur next given Ms Cheng’s continuing requests to adjourn proceedings.

Given Ms Cheng’s refusal to allow the Respondent to view her medical report with the confidentiality undertakings given by the Respondent, the Commissioner considers that she should no longer take Ms Cheng’s medical certificates into account in deciding further programming of the application.

The Respondent has an outstanding application before the Commission that Ms Cheng’s application for unfair dismissal remedy should be dismissed on the grounds that it has no reasonable prospect of success (s.587 of the FW Act). At a previous request of the Commission the Respondent had not pursued that application.

However, the Commissioner is now of the view that Ms Cheng’s application has no reasonable prospects of success given Ms Cheng’s inability and/or unwillingness to engage in the process and hence failure to prosecute her case. The most recent advice from Ms Cheng is that she is unable to participate in any process for a further three months. By that time it will be 18 months since Ms Cheng’s employment was terminated. Further, the Commissioner is not confident that Ms Cheng will be fit to engage in the matter at that time given no apparent change in over more than 12 months in her ability to do so.

The following directions are therefore issued with respect to the Commissioner’s preliminary view that Ms Cheng’s application should be dismissed as it has no reasonable prospect of success given her failure to prosecute her application:

1. Ms Cheng is to file with the Commission and serve on the Respondent any submissions and evidence as to why the Commissioner should not dismiss your application on the grounds that it has no reasonable prospect of success because of your inability to prosecute your case due to medical issues and the inability for the Commission to continue considering your medical evidence as it has not been provided to the Respondent. Such submissions and any evidence as to why the Commissioner should not dismiss you application is to be filed with the Commission and served on the Respondent by 4.00pm Friday 28 February 2010.

Ms Cheng should note that the Commissioner will not consider any material not provided to the Respondent.

2. The Respondent is to file with the Commission and serve on Ms Cheng any submissions and evidence it considers appropriate in relation to the matter under consideration and in reply to the submissions and evidence of Ms Cheng by 4.00pm Friday 13 March 2020;

3. Ms Cheng may file with the Commission and serve on the Respondent any material in reply to that of the Respondent by 4.00pm Friday 20 March 2020.

Either party may request a hearing (which may be by telephone) in relation to the matter being considered.

No extensions will be granted to these directions.

Ms Cheng should note that if she fails to comply with these directions the Commissioner may make a decision without any further correspondence.

[42] On 25 February 2020 Ms Cheng sought to “appeal” the directions but was advised that they would stand.

[43] On 27 February 2020 Ms Cheng sought information in relation to the directions, specifically the meaning of some phrases used:

•  What does the Commissioner Bissett mean by “near future”? How long is he or she referring to?

•  Is Commissioner Bisset[t] sure that I will not be fit to engage in the matter after the 3-month timeframe advised by my medical professional?

•  According to Fair Work Act, is there a maximum time of adjournment?

•  I don’t fully understand what “dismiss my application on the grounds that it has no reasonable prospect of success” means. Do you mind providing more details?

•  As mentioned, I would like to put it into the record that I am disadvantaged under this direction of asking me to provide a submission about dismissal before this Friday because:

•  I don’t have a representative. I have requested to have free legal consultation before but I was told by the unfair dismissal team that no appointment will be arranged before I fully recover. And I don’t fully understand what “the dismissal on the ground of no reasonable prospect of success” means. I would like to exercise my right to seek for legal advice before I provide a submission about dismissal. 

•  English is not my first language.

•  The confidential medical condition as mentioned in the confidential report dated on 20 Jan 2020.

[44] On 27 November 2020 Ms Cheng also made another complaint in relation to the directions issued by me. On 28 November 2020 she made a further complaint. On 28 November 2020 Ms Cheng filed her submissions in accordance with the directions. Her submissions consisted of these two complaints.

[45] The University filed its submissions in accordance with the directions.

[46] On 19 March 2020 Ms Cheng sought an extension to the requirements that she file her reply materials in accordance with the directions and provided the medical certificate of 20 January 2020 in support of this. This request was refused.

[47] An extension was subsequently granted to Ms Cheng until Monday 23 March 2020 (based on Ms Cheng’s advice that she was not in Australia) but Ms Cheng failed to file any submissions relevant to the matter by that time.

[48] On 20 March 2020 Ms Cheng also sent an email as follows:

Dear Commissioner Bissett,

Could you please have the unfair dismissal matter listed for written submission? 

Due to the coronavirus situation, I am currently not in Australia. I may need to attend the hearing online or through the phone instead of in person. 

Thanks, 

Ms Cheng 

SUBMISSIONS

Ms Cheng

[49] Ms Cheng said in her submissions that:

•  She understood privacy, human rights and patient laws meant she had the right to keep her medical information private. A requirement to provide her medical report to the University is a violation of her rights;

•  Her medical report of 20 January 2020 supported her request for a 3 month extension to her matter;

•  The Commission had accepted her medical reports in the past;

•  It would be unfair and contrary to the FW Act to not consider the medical report of 20 January 2020 in determining her adjournment request;

•  If the 20 January 2020 report is not to be taken into account the Commission should issue directions for dealing with her application and not dismiss her application;

•  If the 20 January 2020 medical report is going to be taken into account by the Commission in determining the dismissal application then it should be taken into account to grant a three month adjournment;

•  She is disadvantaged because she does not have a representative, English is not her first language and her “free legal consultation” has not been arranged.

Griffith University

[50] The University submits that it sought the application be dismissed on 9 September 2019 given the then lengthy delays and adjournments of the matter. It noted, in particular, that each time Ms Cheng sought an adjournment of her application it was within 24 hours of her submissions being due; that Ms Cheng had attended the Commission in Brisbane on a number of occasions to observe proceedings which suggested to Deputy President Clancy that she was capable of running her own matter and the application had no reasonable prospects of success.

[51] The University notes that the matter has been ongoing for over 16 months now and its view on prospects of success have not changed.

[52] Any further adjournment of the matter will frustrate the object of Part 3-2 of the Act, including that procedures for dealing with unfair dismissal applications should be “quick, flexible and informal” and “address the needs of employers and employees”.

CONSIDERATION

[53] Section 587 of the FW Act states:

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.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[54] Section 587 offers a broad discretion to the Commission to consider dismissing an application on the basis of the grounds listed, or for any other reason. This much is clear by the opening words of the clause “without limiting when the FWC may dismiss an application…”. In this respect it is important that s.587 does not limit these other reasons for dismissal to ones specifically provided for in the FW Act. For this reason the discretion provided by s.587 is very broad indeed.

[55] Further, s.587(3) provides that the Commission can dismiss an application on its own initiative.

[56] In seeking submissions from the parties in this case I alerted them to my concern that Ms Cheng would not be capable in the foreseeable future and for medical reasons of prosecuting her case.

[57] Without disclosing her medical condition her most recent medical certificate has done no more than indicate that Ms Cheng would require a further three months’ time “to submit her written account of the events that led to her to lodge a claim with Fair Work and to participate in the requisite hearing…” The certificate has failed to provide any prognosis or indication of when Ms Cheng may recover.

[58] It has been not possible to gain any informed view from the University as to the adjournments sought by Ms Cheng as she has consistently refused to allow the Commission to forward her medical reports to the University, claiming confidentiality. On this I should note that, apart from broad statements, there is little detail of Ms Cheng’s condition disclosed in most of her medical certificates or reports. It has been unclear to me why she would not allow the University to view these certificates or reports, particularly given the undertakings the University (and its representative) was prepared to give including that the knowledge of the content of the report would only be used in these proceedings and the report would be destroyed following any reply being given to the adjournment request by the University.

[59] Ms Cheng has suggested that I must either grant the adjournment of three months sought in the January 2020 certificate or not accept the certificate and issue directions for dealing with her application. She suggests that these are the alternatives and that I cannot accept the medical certificate but ignore its contents. She conveniently ignores the request put to her on at least two occasions that she should provide a medical certificate stating she is fit to prepare her material and participate in proceedings.

[60] Ms Cheng misunderstands the proposition put to her. In the directions I indicated that I was concerned that she might not be able to prosecute her case in the foreseeable future and for that reason her application could not succeed. On this basis I was considering dismissing her application. Ms Cheng seems to consider that there are only two options open to the Commission – to accept the medical reports and grant the adjournment sought or not accept the certificates and issue directions. What she does not appreciate is the alternative available to the Commission which is to dismiss her application for the reasons articulated in the correspondence of 13 February 2020 which accompanied the directions.

[61] My concern has always been that Ms Cheng could not, due to medical restrictions placed on her, prosecute her case. She has twice been advised that she can have her matter heard if she receives medical clearance from her doctor to do so. On the last occasion (in December 2019) this advice was given close to her medical appointment. She could have not produced any further medical restriction or received a positive clearance if she considered she was well enough to prosecute her case. She did neither and now seeks a further adjournment until late April.

[62] I would observe that the Commission is not bound to follow the advice of a treating practitioner although this will, inevitably, be given serious consideration. A medical certificate or report however is but one input into determining if, and how, a matter should proceed.

[63] Section 577 of the FW Act requires that the Commission perform its functions in a way 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.

[64] Section 381 of the FW Act sets out the Objects of Part 3-2 of the FW Act (which deals with unfair dismissal matters):

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.

[65] These objects, in conjunction with the overall objects of the FW Act and the requirements in s.577 must provide the overriding considerations in dealing with an application. Advice as to incapacity must be considered in this context.

[66] In a contradictory manner – not unusual in this case – Ms Cheng also now requests that her matter be programmed. She does not seek any delay in doing so.

[67] I have carefully considered the submissions and most recent request of Ms Cheng, the submissions and effect of the delay on the University and the requirements of the FW Act. In circumstances where the University has already filed its materials and hence any prejudice in granting Ms Cheng’s request will be minimal in addition to that already experienced, I have decided on the following course of action:

1. Ms Cheng will be referred to the Workplace Advice Service. As she is overseas she will be required to participate in this service by telephone. Ms Cheng will be offered a limited number of appointment times – should she refuse all of these options her access to the service will be withdrawn.

2. Ms Cheng will be required to file with the Commission and serve on the Respondent her outline of submissions, witness evidence and any other material on which she seeks to rely within 3 weeks of the Workplace Advice Service appointment (subject to item 1 above). Once set, the date by which Ms Cheng is required to file and serve her materials will not be extended or adjourned.

3. Ms Cheng’s application will be listed for hearing by telephone (as is current standard practice). The hearing date will be determined once the filing date for Ms Cheng is set.

4. Should Ms Cheng receive a further medical report that indicates she is unable to participate in Commission proceedings or otherwise comply with the directions of the Commission or meet with a legal representative through the Workplace Advice Service I will revisit the matter canvassed in this decision.

[68] To be clear, my decision at this time is that I will not determine whether I should dismiss Ms Cheng’s application pursuant to s.587 of the FW Act. Should Ms Cheng not comply with the directions set out above or should she receive a further medical report that says she cannot engage in the process outlined above then I will complete my consideration, commenced herein.

COMMISSIONER

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