Mrs Vikashni Chand v Anglicare

[2018] FWC 658

[2018] FWC 658

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 394 - Application for unfair dismissal remedy

Mrs Vikashni Chand

v

Anglicare

(U2017/9912)

Deputy President Sams SYDNEY, 9 February 2018

Application for an unfair dismissal remedy – summary dismissal for serious misconduct – failure to comply with directions – no explanation or communication with the Commission – application made under s 399A of the Act – principles considered – substantive application dismissed.

1. On 12 September 2017, Ms Vikashni Chand (the ‘applicant’) filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) in which she sought an unfair dismissal remedy (compensation) arising from her dismissal by Anglicare (the ‘respondent’) on 24 August 2017 after almost two years service as a Homecare Worker of Anglican Retirement Villages, based at Sadleir Day Centre in Sadleir, New South Wales.

1. For the purposes of this decision it is not strictly necessary to set out the reasons for the applicant’s dismissal although, shortly stated, she was dismissed for serious misconduct in that it was alleged she had failed on a number of occasions to record unauthorised absences and claimed payment for the absences.

1. In accordance with my usual practice, my Chambers issued a notice of listing for a conference on 25 October 2017 and at the same time issued directions for a hearing on 13 December 2017. The conference was unable to resolve the applicant’s claim and the directions and hearing date were confirmed (although two days were set aside for the arbitration). Anglicare was directed to file and serve its evidence first. This is so because the applicant’s dismissal was for alleged serious misconduct and in those circumstances, the onus falls on the employer to prove the allegations; see: Pastry Cooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70. If the misconduct is not proven, the onus shifts back to the employee to satisfy the Commission that the dismissal was ‘harsh, unjust or unreasonable’, within the meaning of s 387 of the Act.

1. On 9 November 2017, I amended the directions. The respondent filed an outline of submissions and three witness statements of Ms Toni-Marie Baker (Program Manager), Ms Susan Sweeney (Lifestyle Worker) and Ms Doris Herrara (Lifestyle Worker). The applicant was required to file her material by 1 December 2017. She failed to do so. She had sought no extension of time or offered any explanation for her failure to comply with the Commission’s directions.

1. Consequently, on 6 December 2017, the respondent’s legal representative, FCB Workplace Law, made an application pursuant to s 399A of the Act, to dismiss Ms Chand’s substantive application. Its reasons were as follows:

1. On 18 October 2017, His Honour, Deputy President Sams, issued directions with respect to conduct of the matter (first directions). Among other things, the first directions required the respondent file and serve its outline of submissions, witness statements and other documentary material on or before 4pm on 8 November 2017.
2. On 7 November 2017, the respondent requested and was subsequently granted, an extension of time for the filing and service of the above mentioned materials.
3. As a consequence of the granted of the respondent’s request for an extension of time, his Honour issued a revised set of directions on 9 November 2017 (the revised directions).
4. The respondent has field in the Commission and served on the applicant, its outline of submissions and witness statements. ‘
5. The revised directions, among other things, required the applicant to file and serve her outline of submissions, witness statements and other documentary evidence on or before 1 December 2017.
6. The applicant has not complied with the revised directions. In particular the applicant has not filed or served any materials in support of her application.
7. On 5 December 2017, we wrote the applicant seeking clarity as to her intentions regarding the application and requested confirmation as to when the respondent could expect to receive the applicant’s evidence and submissions. To date, no response has been received to this correspondence.
8. Also on 5 December 2017, the respondent made three attempts to contact the applicant by phone (via the telephone number the applicant provided to the Commission). The applicant did not answer any of those calls. The applicant does not have a voicemail service on her mobile phone however a text messaging service was available to leave the caller’s number, which the writer did so on the first occasion.
9. On 6 December 2017, the respondent made a further attempt to contact the applicant by phone. Again, the applicant did not answer the writer’s call. The writer remained on the phone so that a text message with a return number could be sent to the applicant.
10. A further email was then sent to the applicant (also on 6 December 2017). As at the time of writing this correspondence, no response has been received.
11. The revised directions require the respondent to file and serve any witness statements or other documentary material in reply on or before 4pm on 8 December 2017.
12. The matter is listed for arbitration before his Honour on 13 and 14 December 2017.

1. On 8 December 2017, the Commission directed as follows:

1. The applicant (Ms Vikashni Chand) to file in the Commission and serve on the respondent, any submissions on which she seeks to rely on in opposition to the respondent’s application, pursuant to s 399A of the Fair Work Act 2009, to dismiss her substantive  unfair  dismissal  application  by  no  later  than  4pm  on  Wednesday  13 December 2017.

2. The respondent’s s 399A application will be listed for a hearing at 10am on Thursday 14 December 2017, unless there is a failure of the applicant to comply with direction1 above. Such failure will result in the s 399Aapplication being determined ‘on the papers’.

1. On 12 December 2017, Ms Chand responded as follows:

‘Dear Sir,

I won't be able to attend the hearing on the 14th of December due to medical condition. I have been very unwell for the last 2 months therefore was unable to provide any witness statements relating to my unfair dismissal. 

I would like to request the Fair Work Commission to provide me with an extension to submit the required documents and extension for the hearing for next year. I am on medication for the medical condition and happy to provide medical certificates to the commission only due to privacy I do not want to discuss this matter with Anglicare.

Another issue I am currently facing is my financial obligations therefore was unable to find a lawyer to represent me, it is very costly and I do not have a job and rely completely on my family for support.

Therefore I request the Fair Work Commission to give me some extension and change the hearing date.’

1. The next day my Chambers advised the parties as follows:

Ms Chand - the Deputy President will accept the confidentiality of your medical evidence and agrees not to share them with the employer once you provide them. However, His Honour does require that you provide medical evidence that states you are not fit to either attend the Commission for a hearing, prepare written submissions and/or provide written statements. You must provide this evidence by no later than COB on Friday 15 December 2017.

In addition to providing the applicant with an opportunity to produce the medical evidence as above, tomorrow’s hearing will be vacated for the following reason. The Commission’s IT systems have suffered a serious outage for the last two days with most services (including court monitoring and telephones) being down. It is not clear when they will be working again. Although the matter is adjourned, the employer’s s 399A application will be heard and determined in due course.

1. On 18 December 2017, Ms Chand replied as follows:

‘Please find attached medical certificate for not attending the hearing. I will be sending a mental heath plan once the doctor has completed paper work. I will be seeing a psychologist in January due to busy time of the year, only available next year. I am unable to submit any paperwork due to my mental condition and depression. I would request the Fair Work Commission to give me an opportunity to visit a psychologist and submit reports after my condition is improved.’

1. Later that day, I expressed a number of concerns with Ms Chand’s most recent communication and advised as follows:

1.Although you were directed to file the material by COB on Friday 15 December 2017. You filed it on Monday 18 December, without seeking an extension;

2.The medical certificate is undated;

3.It appears that one of the dates has been altered. This is a serious matter;

4.It does not provide the information that you were directed to provide. Namely, the medical certificate does not state you were/are unfit to;

a.Either appear in person at the Commission; or

b.Prepare a written statement and/or submissions.

5.Instead, the medical certificate states you are unfit for work for a period of two days, comprising a weekend. It also states that you will be fit to resume work from tomorrow, 19 December 2017.This does not accord with your request for an adjournment until next year.  If you are fit to return to work it is difficult to see how you can claim an inability or incapacity to appear in the Commission or prepare your case.

For these reasons, this Deputy President does not accept your medical evidence. His Honour is willing to grant you an extension to provide updated medical evidence which includes the relevant information by no later than COB on Friday 22 December 2017. If you do not provide acceptable medical evidence by this point, the Deputy President may determine the respondent’s s 399A the application ‘on the papers’.

1. No response was received. To this date Ms Chand has had no communication with my Chambers or the Commission generally.

1. In light of the above narrative, I have decided to dismiss this application for want of prosecution and the applicant’s failure to comply with the Commission’s directions. These are my reasons.

1. The Commission’s power to dismiss an application are set out generally at s 587 of the Act and specifically in respect to unfair dismissal applications under s 399A. I set out both sections below:

SECTION 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.

SECTION 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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).

(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.

1. The power to dismiss a substantive application should only be exercised cautiously; see: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at para [8]. This is so because it results in the extinguishment of a party’s application, which has been made in order to seek some form of relief, from a beneficial statutory provision. In other words, the application is dismissed before an applicant has had his/her ‘day in court’.

1. That said, s 587 of the Act does not limit the grounds on which the Commission, of its own motion, may dismiss an application. In the present case, the applicant has demonstrated an unwillingness to properly respond to the Commission’s directions and more recently failed to respond at all to my direction of 18 December 2017, despite being warned of the possible consequences. Given this history, I have little confidence that the applicant will, at some future point, seek to desist from this conduct. It is worth noting what Kirby J said in Allesch v Maunz (2000) 203 CLR 172. At paras [35]-[39], His Honour said:

‘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 emphasising 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.’ (My emphasis)

1. In Viavattene v Health Care Australia [2013] FWCFB 2532, a Full Bench of the Commission said at para [39]:

‘[39] It is apparent from the decision subject to appeal that the Commissioner had regard to Sayer v Melsteel, and made her decision following an analysis of the respondent's uncontested evidence, noting that the respondent's sworn statements and submissions contained “substantial arguments in response to the Applicant's contentions”. There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. 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).’ [endnotes omitted] [my emphasis]

1. The respondent has filed its evidence and submissions in compliance with the Commission’s directions. In my view, it would be unfair and unreasonable to put the respondent to more time and cost in defending a matter which is not properly being prosecuted by the applicant. This is a telling factor in favour of making an order to dismiss the application, given the overarching object of the Commission’s unfair dismissal jurisdiction as set out at s 381(2) of the Act, which reads as follows:

‘(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.’

1. In the exercise of my discretion, I dismiss application U2017/9912, pursuant to s 587 and s 399A(1)(b) of the Act. I so order.

DEPUTY PRESIDENT

Appearances:

Ms V Chand, for herself.
Ms M Bowe, Solicitor (of FCB Group) for the respondent.

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