Mr David Richardson v Lloyds Auctioneers & Valuers Pty Ltd

[2023] FWC 1304

[2023] FWC 1304

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr David Richardson
v

Lloyds Auctioneers & Valuers Pty Ltd

(U2023/2306)

COMMISSIONER PLATT ADELAIDE, 1 JUNE 2023

Failure to comply with Directions – Applicant seeks summary judgement – Application for Recusal – Procedural Directions.

1. On 20 March 2023, Mr David Richardson (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by his former employer Lloyds Auctioneers & Valuers Pty Ltd (the Respondent) which took effect on 1 March 2023.

1. A conciliation conference was conducted by a staff conciliator on 21 April 2023, where the matter was not resolved. Subsequently, the matter was allocated to my Chambers.

1. On 20 April 2023, Mr Lee Hames on behalf of the Respondent provided a Form F3 Employer Response which indicated that he was the point of contact for the Respondent. Ms Shea Thompson was also listed as the Respondent’s representative.

2. At 12:20pm (SA) on 24 April 2023, the parties were emailed a Notice of Listing for the Directions hearing, listed at 2:00pm (SA) on Thursday 27 April 2023 with conference dial-in instructions provided.

1. On 26 April 2023, Mr Hames emailed Chambers requesting an adjournment to the Directions hearing as the Respondent’s representative was on leave. This request was declined, and the Respondent was asked to arrange for another representative to attend the Directions hearing.

1. A Directions hearing was conducted on 27 April 2023. The Respondent did not attend the start of the hearing.  The Applicant was represented by Mr Andrew Wright with permission pursuant to s.596(2) of the Act. Some time after the hearing had commenced, Mr Hames joined the Conference and advise he appeared on behalf of the Respondent. Directions were issued (and confirmed in writing on 28 April 2023) requiring the Applicant to file and serve an outline of their submissions, witness statements and any documents upon which they sought to rely on by 4pm 18 May 2023. The Respondent was directed to file and service an outline of their submissions, witness statements and any documents upon which they sought to rely on by 4pm 25 May 2023. Any reply material was to be filed by 4pm on 1 June 2023. The Hearing was scheduled for 6 June 2023 in Adelaide.

1. On 28 April 2023, the matter was referred to another member of the Commission to conduct a Member Assisted Conciliation (MAC) at the request of the parties. My Chambers was advised that the matter did not resolve.

1. The Applicant filed an outline of submissions and two witness statements at 3:58pm on 18 May 2023.

1. On 26 May 2023 My Chambers noted that no material had been received from the Respondent in accordance with the Directions.

1. On the morning of 26 May 2023, my Associate attempted to contact the Respondent approximately 5 times by way of telephone, without success. My Associate subsequently sent the following email to the Respondent at 1:41pm on 26 May 2023:

“As per the Directions, you were required to file submissions by 4:00pm (SA) Thursday, 25 May 2023. You did not comply with these Directions as the Commissioner is yet to receive any material from you.

If you do not file your submissions by 3:00pm (SA) TODAY, this matter will be listed for a Non-compliance Hearing TODAY at 4:00pm (SA) Friday, 26 May 2023. A Notice of Listing reflecting this will be issued shortly.”

1. As no submissions were filed by the Respondent, a Notice of Listing was issued to the parties at 3:41pm on 26 May 2023 confirming the listing of a Non-compliance Hearing.

1. At approximately 3:42pm on 26 May 2023, my Associate contacted the Respondent and spoke to Mr Hames on that matter of his submissions being overdue. Mr Hames advised he was not aware of the dates of filing outlined in the Directions issued on 28 April 2023. This is surprising as the transcript contains his acknowledgement of those dates. He was advised that the matter had been listed for a Non-compliance Hearing at 4:00pm that day and that the Respondent was expected to attend.

1. At 4:10pm on 26 May 2023, the Respondent sent a letter of complaint to Justice Hatcher seeking that the matter be allocated to another Member.  Further internal correspondence within the Respondent was received by my Chambers concerning that Correspondence.

1. The Non-compliance hearing was conducted at 4.05pm on 26 May 2023, the Applicant was represented by Mr Wright. The Respondent did not appear.  The following Directions were issued following that Hearing:

“[1]      Further to the Directions issued in this matter on 27 April 2023, and noting that the Respondent has not filed any material in response to those Directions, the following Directions are made:

[2]      The Commissioner has granted an extension of time for the Respondent to file in the Commission and serve on the Applicant their submissions to be provided by no later than 12:00pm (SA) Monday, 29 May 2023.

[3]      It appears the Respondent has intimated that it wishes to make a recusal application, any formal application and/or material/submissions with respect to this application is to be filed in the Commission and served on the Applicant by no later than 12:00pm (SA) Monday, 29 May 2023.

[4]      The Applicant has sought summary judgment if the Respondent does not comply with the extended time frame to file their submissions. If summary judgement is sought, the Applicant is directed to file submission in the Commission and service on the Respondent by no later than 11:59pm (SA) Monday, 29 May 2023.

[5]      Any outstanding matters to be determined as a result of these directions will be dealt with on a Hearing at 2:00pm (SA) Tuesday 30 May 2023 which will be conducted by videoconference.

[6]      The balance of the directions issued on 27 April (including the filing of reply submissions and the hearing date) remain in force.”

1. The Respondent did not file any material by 12:00pm (SA) Monday, 29 May 2023.

1. A copy of the transcript of the Directions Hearing conducted on 27 April 2023 was provided to the parties.

1. On 29 May 2023, Mr Wright provided written submissions in support of the Applicant’s summary judgement application. No submissions were received from the Respondent as to Recusal.

1. At 10:15am on 30 May 2023, the Respondent sent an email advising that his letter to the President should be regarded as his application and submissions in respect of the recusal.  Despite being filed late, I determined to receive this material.

1. A Hearing was conducted at 2:00pm (SA) on 30 May 2023 with respect to the matters described in paragraph [14] above. Mr Wright continued to represent the Applicant. The Respondent did not attend. Mr Wright opposed the recusal application.

1. With respect to the recusal, the Respondent contended that during the initial Directions hearing, I required the Respondent to be legally represented and that I had prejudged the outcome of the matter.   In my view, the transcript does not support the first contention at all.  In respect of the second proposition, a fair reading of the entirety of the transcript indicates that I explained the usual practice that witness statements will not be received from persons who will not be present at the hearing (and thus their evidence would be unable to be tested), and in light of the wide factual dispute evidenced from a review of the F2 application and F3 response, it would be difficult for the Respondent to meet its evidentiary onus without the presentation of witness evidence. 

1. I determined that a fair-minded and appropriately informed lay observer would not reasonably apprehend that I might not determine the matter in an impartial and unprejudiced manner. 

1. With respect to the Respondent’s repeated breaches of the Direction, I received the Applicant’s submissions and put an alternative proposition to the Applicant that the Respondent not be permitted to file any additional material and be restricted to cross-examining the Applicant’s witnesses and putting their case (including relevant documents) to them and making submissions. Mr Wright sought time to consider this proposal.  On 31 May 2023, Mr Wright indicated support for that position.

1. I note that the Respondent has:

·   Continued to fail to comply with various Directions as to the filing of material with respect to the substantive hearing,

·   Failed to provide any explanation as to the failure to comply with the Directions, and

·   Failed to attend a number of Directions hearings.

Consideration

1. The relevant sections of the Act are set out below.

1. Section 589 of the Act provides:

(1)   The FWC may make decisions as to how, when and where a matter is to be dealt with.

(2)   The FWC may make an interim decision in relation to a matter before it.

(3)   The FWC may make a decision under this section:

(a)   on its own initiative; or

(b)   on application.

(4)   This section does not limit the FWC’s power to make decisions.

1. In this matter, the decision relates to whether the Commission should permit the Respondent to file material having been provided with three opportunities to do so and without any explanation for its default.

1. Section 577 of the Act provides:

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

(a)   is fair and just; and

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

(c)   is open and transparent; and

(d)   promotes harmonious and cooperative workplace relations.

1. Broadly speaking, “procedural fairness” means acting fairly in administrative decision making.

1. In the context of this case, the Respondent has been afforded procedural fairness on a number of occasions. The Respondent has been provided a number of opportunities to submit material and they were advised by my Chambers when the material became overdue. Further, the Respondent did not contact the Applicant or my Chambers at any time in relation to the failure.  Any injustice or lack of procedural fairness to the Respondent is self-inflicted.

1. In the decision of Russell Penttila v. Woolworths Limited and Woolworths (South Australia) Pty Limited T/A Woolworths Petrol[1] the Full Bench noted:

“[50] However it is not the task of Commission to ensure that a party attends at a hearing. The task of the Commission, subject to the requirements of natural justice and the objects of the Act, is to ensure all parties have an opportunity to be heard on a matter.

[51] In Allesch v Maunz, 29 Kirby J held:

“It is a principle of justice that a decision maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made.
. . .

. . .

it is worth emphasizing that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.

Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to Act rationally in their own best interests.” 30

[52] Mr Penttila did not take the opportunity to present his material. He did not make submissions at hearing. He did not seek an adjournment either for the lodging of materials or the hearing itself.

[53] By the time he contacted the Commission the matter had concluded.

[54] Unsurprisingly the hearing did not take long: Mr Penttila had neither put in materials nor attended the hearing.

[55] We do not conclude this as a breach of the principles of natural justice, but that Mr Penttila did not take advantage of the opportunity to be heard either in writing or orally notwithstanding such an opportunity was provided.

[56] On this point we agree with Woolworths that the Commission provided an opportunity to Mr Penttila on 13 and 17October 2017, and at the hearing on 19 October 2017. The failure to attend the hearing following non-compliance with directions on two occasions, without explanation until this appeal, cannot lead to a conclusion that an injustice has occurred toward Mr Penttila.”

1. In Sullivan v Department of Transport[2] Deane J noted that:

“….it is important to remember that the relevant duty of the Tribunal [in this case the AAT] is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.”

1. As I have discussed at length above, the Respondent and its representative, Mr Hames, was well aware of the Directions that were issued in the matter and the filing dates. At the time the material fell due, the Respondent and its representative was reminded to provide the material and failed to do so.

1. Procedural fairness demands that a party be given a reasonable opportunity to put its case. The Respondent was granted such an opportunity. For reasons only the Respondent knows, it declined to take advantage of the opportunity to put its case. The Applicant complied with the orders and presented its evidence.

1. It would be a denial of procedural fairness to allow a party to ignore the Commission orders and only to make its case known at the last minute before a Hearing. If an Applicant was as dilatory as the Respondent, I have no doubt an application under s.399A would be successful.

1. Section 589 of the Act permits the Commission to make decisions as to how and when a matter is dealt with. Those powers are broad and discretionary.[3]

1. In my view, the circumstances in this matter are such that it is an appropriate exercise of my discretion to refuse to accept any statements on behalf of the Respondent that could have been submitted in accordance with the Directions, and I so order.

1. As advised by email on 30 May 2023, the Hearing on 6 June 2023 will proceed. The Applicant has filed its material. The Respondent will be permitted to cross-examine the Applicant’s witnesses and put its case to them including relevant documents and made submissions as to Merit and Remedy.

COMMISSIONER

Appearances (by videoconference):

Mr Wright on behalf of the Applicant.

Hearing details:

2023.
Adelaide.
May 30.

[1] [2018] FWCFB 134.

[2] (1978) 20 ALR 323.

[3] CFMEU v Hooker Cockram Projects NSW Pty Ltd (2011) 201 IR 397.

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