Ms Anita Shankar v Fairmont Resort & Spa

[2020] FWC 5218

[2020] FWC 5218

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Anita Shankar
v
Fairmont Resort & Spa
(U2020/3913)

DEPUTY PRESIDENT CROSS SYDNEY, 29 SEPTEMBER 2020

Application for an unfair dismissal remedy.

Factual Background

[1] On 31 March 2020, Ms Anita Shankar (the “Applicant”) lodged an unfair dismissal application against Fairmont Resort & Spa Blue Mountains (the “Respondent”). The Respondent denied it had unfairly dismissed the Applicant. In the Form F2, the Applicant listed Mr Ben Sabeto as her representative. Mr Sabeto is the Applicant's partner.

[2] On 7 May 2020, the parties participated in a telephone conciliation conference, however the matter failed to resolve at that conciliation by the Fair Work Commission (the “Commission”).

[3] On 11 June 2020, after the provision of draft directions from my Chambers on 29 June 2020, I conducted a Member Assisted Conciliation and Directions Hearing in the matter. The Applicant was represented by Mr Sabeto. The matter failed to resolve, and I issued the following case management Directions, without objection by either party (the “11 June Directions”):

“1. The Applicant to file and serve the Respondent with an outline of submissions, witness statements and other documentary evidence by 4.00 pm on 2 July 2020.

2. The Respondent to file and serve the Applicant with an outline of submissions, witness statements and other documentary evidence by 4.00 pm on 23 July 2020.

3. The Applicant to file and serve the Respondent with any reply material including further witness statements and other documentary material in reply to the Respondent's witness statements by 4.00 pm on 30 July 2020.

4. The matter is listed for hearing at 10.00 am on Wednesday, 5 August 2020, Thursday, 6 August 2020 and Friday, 7 August 2020.”

[4] The 11 June Directions included an information sheet headed “Preparing for a Hearing”. That information sheet included the following text:

“Attached to this notice from Fair Work Commission are some directions that you must comply with. These directions include a requirement that you file with Fair Work Commission and serve on the other party or their representative an Outline of Submissions and Witness Statements for any witnesses you intend to call (including yourself) at the hearing. You and all your witnesses must attend the hearing and be prepared to give evidence. If you or a witness does not attend the conference/hearing, the application may still proceed and a decision may be made against you.

Documents can be filed by sending them by email, facsimile or post to Fair Work Commission and served by similarly sending them to the other party or their representative.

An Outline of Submissions is a document written by your or your representative that sets out why Fair Work Commission should find in your favour. Your Outline should include the case number and address the relevant sections in the Fair Work Act that deal with unfair dismissal claims.

A witness statement should be prepared for each person (including yourself if you intend to rely on events or conversations that you were involved in) who has something relevant to say about the issue to be dealt with at the conference or hearing. The witness statements should include all matters that are relied upon or relevant to that issue.

How do I prepare Witness Statements?

Witness statements should start with the full name and address of the person making the statement and their occupation.

1. The statement should then set out in numbered paragraphs all the relevant allegations and facts, such as conversations or events, involving the witness.

2. As near as possible statements should be in the first person. The examples below may assist but you should be careful to insert the facts of your own matter:

i I commenced employment with ABC Pty Ltd on 27 May 1999.

ii I was employed as a full time Art Designer by ABC Pty Ltd from 27 May 1999 to 1 February 2000.

iii I was promoted to the position of Art Director by ABC Pty Ltd on 1 March 2002 and held this position until I was terminated.”

3. An example of how documents, such as contracts of employment or letters should be referred to in a statement is as follows:

i On 17 March 2010 I received a letter from Mr Brown informing me that he would not be attending work from 24 March 2003. Attached and marked "A" is a copy of the letter.

ii On 18 March 2010 I sent a letter to Mr Brown, advising him that if he did not attend work by 29 March 2010 he would be dismissed. Attached and marked "B" is a copy of the letter.

iii On 30 March 2010 Mr Brown’s employment with ABC Pty Ltd was terminated.

Attached and marked "C" is a copy of the termination letter.

4. Conversation contained in the statement should also be in the first person, for example:

i. I said, “What is this meeting all about?"

Mr Smith said, "You have been taking excessive sick leave". I said, "I can't help it if I get sick".

5. The information contained in the statement should be things seen or heard or done directly by the person making the statement.

6. The person making the statement should sign and date the statement.”

[5] At 10.09 am on 1 July 2020, the day before the Applicant’s materials were due to be filed, Mr Sabeto emailed my Chambers as follows:

“Dear Commissioner,

We would like this matter relisted for a later date and all allotted times for submissions changed to reflect that date.

We have both suffered losses in our families close together and would appreciate time to grieve as is with our culture and religion.

Thankyou for your time Anita Shankar - Ben Sabeto”

[6] At 3.56 pm on 1 July 2020, the Respondent emailed my Chambers. The Respondent objected to the Applicant's request for an extension to file submissions and evidence, noting the fact that it was made one day before the date for filing of the Applicant’s materials, and the absence of supporting evidence.

[7] On 2 July 2020, I varied the 11 June Directions by amending the Applicant's deadline to file submissions and evidence from 1 July 2020, to 4.00 pm 9 July 2020 (the “2 July Direction”). Otherwise the terms of the 11 June Directions were retained, including the hearing dates of 5, 6 and 7 August 2020. The Applicant did not register any objection to the 2 July Direction.

[8] On Sunday 12 July 2020, three days after the date for the filing of the Applicant’s materials pursuant to the 2 July Direction, a document titled “Anita Shankar v Fairmont Resort & Spa, Matter # U2020/3913, Opening Submission” was filed and served by Mr Sabeto on the Applicant's behalf (the “12 July Submissions”). The 12 July Submissions were not filed in accordance with the 11 June Direction, as amended by the 2 July Direction. As noted above, they were three days late, but more importantly they included no witness statements, or arguably even submissions. An example of the contents of the 12 July Submission, which was no more than three pages long, is the following extract of the first two parts of the 12 July Submission.

“With evidence through the subpoena of key witnesses, and documentation, related in the Unfair Dismissal of Miss Anita Shankar, we can show that in all reasons given by Fairmont Resort & Spa for Miss Anita Shankar’s ultimate dismissal for gross misconduct. (Still unclear or not as to the dismissal?)

Is the dismissal for Gross Misconduct?
As per ACCOR Hospitality Doc # 5878394.2 Human Resources Performance Management Policy.
Section 5. TERMINATION.
This may occur immediately in the case of serious misconduct OR may be a result of continued unsatisfactory behaviour performance over a reasonable period.

If the dismissal is for 1 Act of serious misconduct; (Fraudulent Behaviour Re: Bienvenu Card)

We will show with evidence, through booking details ( itinerary ) that at no stage at the Pullman Hyde Park or at Pullman Olympic Park did Miss Shankar do anything other than book a room with full intentions of staying in that room with her partner as they had done previously over 15 times in the space of 2 months. As Miss Shankar was totally incapacitated through a poorly handled workplace lower back injury and suffering severe depression because of the negligence and treatment offered to her by Fairmont Resort & Spa ( all diagnosed & documented by medical & Psychological professionals ) her partner would insist she accompanied him whenever he was travelling with his OHSE Consultancy business as he was concerned that she may cause self-harm through the injury and subsequent depression.

We will show with evidence through Credit Card Details , bank statements that bookings were made by Mr Sabeto in his name and paid for at full price by Mr Sabeto at Pullman Olympic Park and also at Novotel Olympic Park, Not using any staff rates or Bienvenu Card privileges

If the dismissal as expected is for continued unsatisfactory behaviour.

Contravened the Workplace Policies.

We will be seeking clarification Fairmont Resort & Spas legal team from before trial date on exactly what Workplace Policies were breached by Miss Shankar.

We will show through witness testimony, subpoenaed documents, Housekeeping Supervisor position description, ACCORS performance review, guidelines for performance review and the standard terms ( Salaried Employees – Hospitality Industry ( General ) Award documents that any alleged unsatisfactory behaviour amounts to nothing more than harassment of Miss Shankar with no evidence, proof, or basis for any alleged accusation.

…”

[9] At 11.07 am on 14 July 2020, the Respondent emailed the Applicant and Mr Sabeto. That email raised the non-compliance with the 11 June and 2 July Directions. In the circumstances of the s. 399A application, I set out the contents of that email in full, and it was as follows:

“We refer to the above proceedings in the Fair Work Commission listed for Arbitration Conference/Hearing on 5 to 7 August 2020 (Hearing).

Directions of the Fair Work Commission

On 11 June 2020 Deputy President Cross issued directions, including as follows:

1. Ms Anita Shankar (the Applicant) is directed to file with the Fair Work Commission, and serve on the Fairmont Resort & Spa (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of her application in this matter by 4.00 pm on 2 July 2020.

2. The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by 4.00 pm on 23 July 2020.

At 2.47 pm on 1 July 2020, Mr Sabeto emailed the Fair Work Commission requesting for the matter to be relisted for a later date and for the allotted time for submissions to be changed to reflect the date. This request was made one day prior to the date upon which the Applicant's materials were due to be filed and served.

At 3.56 pm on 1 July 2020, we wrote to the Fair Work Commission on behalf of the Respondent objecting to the request made by Mr Sabeto.

At 3.09 pm on 2 July 2020, a direction was issued by the Deputy President maintaining the Hearing dates amending Direction 1 as follows:

1. Ms Anita Shankar (the Applicant) is directed to file with the Fair Work Commission, and serve on Fairmont Resort & Spa (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of her application in this matter by 4pm on 9 July 2020.

Applicant's Evidence

At 2.29 pm on Sunday 12 July 2020, a document titled Anita Shankar v Fairmont Resort submission was filed and served by Mr Sabeto on behalf of the Applicant.

The submissions were filed three days after the deadline required by the amended Direction 1.

To date the Respondent has not been served with any witness statements or other materials as required by Direction 1.

Direction 2 presently requires the Respondent to file and serve its materials by 23 July 2020.

Our client is prejudiced in circumstances where no evidence has been filed in support of the unfair dismissal application. Our client does not presently know the case it has to meet.

Power to dismiss the application

The Fair Work Commission has the power dismiss an application for an unfair dismissal for a number of reasons, including those set out under sections 399A and 587 of the Fair Work Act 2009 (Cth) (FW Act).

Specifically, section 399A provides that the Fair Work Commission may, on application by the employer, dismissal an application where the Applicant has unreasonably:

•  failed to attend a conference or hearing of the Fair Work Commission;

•  failed to comply with a direction or order of the Fair Work Commission in relating to the Application; or

•  failed to continue the application after a settlement agreement has been reached.

In the present circumstances, you have clearly failed in complying with amended Direction 1. Specifically, you have failed to comply with amended Direction 1 by:

1. failing to file and serve any witness statements or materials in support of the application; and

2. filing written submissions three days after the filing deadline.

These contraventions have occurred in circumstances where the Fair Work Commission already granted you an extension of time to file your materials.

No explanation has been provided for these further failures to comply with Direction 1.

Our client is now prejudiced in its ability to comply with Direction 2.

If our client is required to prepare witness statements and other materials without the benefit of seeing your evidence first, this will significantly hinder the efficient conduct of the matter. This is so in circumstances where it appears from your submissions document that you intend to put on your evidence by way of the subpoena of key witnesses and documentation after the Respondent's evidence has been filed. This will necessitate further reply evidence from the Respondent.

Your proposed course of conduct is inefficient, fails to focus on the key issues relating to why you say the dismissal was unfair and will cause our client to incur significant additional costs in defending the matter.

To this end we refer to the note to section 399A of the FW Act, which makes it clear that the Fair Work Commission may make an order for costs if the Applicant's failure causes the other party to incur costs.

In light of the above we ask that you confirm as a matter of urgency whether you intend to file any witness statements and/or other documents in support of your application.

We put you on notice that if your witness statement/s or other evidentiary materials are not served by 12.00 pm tomorrow, 15 July 2020, we will approach the Fair Work Commission to make an application to have the proceedings dismissed for failure to comply with directions of the Fair Work Commission.

We confirm that we have copied the Associate to Deputy President Cross into this correspondence.”

[10] At 7.30 pm on 14 July 2020, Mr Sabeto emailed the Respondent. In that email, Mr Sabeto set out a dot-point summary which he described as an outline of the Applicant's case. He stated in part:

“As far as witness statements and evidences are concerned, we are concerned that as our witnesses are current employees of Fairmont Resort and Spa, it will not only prejudice the content of the statements if we seek them before the hearing but could adversely affect their employment.”

[11] The above statement in the Applicant’s 14 July 2020 email was essentially incorrect. While at the end of the email, three apparently existing employees were identified as to be called to show “that Ms Shankar’s professionalism, integrity, honesty and leadership qualities are of the highest calibre”, the key focus of that email was three individuals described as “our three key witnesses”, when those three individuals would likely be called as witnesses for the Respondent. Additionally, the email did not explain the absence of a statement from the Applicant.

[12] On 21 July 2020, at the request of the Respondent, the matter was re-listed. In that Directions Hearing the Applicant and Mr Sabeto were specifically directed to what was required to be contained in a witness statement and submission, and their attention was directed to the text of the 11 June Directions contained in paragraph [4] above. I issued amended Directions (the “21 July Directions”), without objection by either party, that provided for:

(a) The Applicant to file and serve the Respondent with an outline of submissions, witness statements and other documentary evidence by 4.00 pm on 30 July 2020;

(b) The Respondent to file and serve the Applicant with an outline of submissions, witness statements and other documentary evidence by 4.00 pm on 13 August 2020;

(c) The Applicant to file and serve the Respondent any reply material including further witness statements and other documentary material in reply to the Applicant's witness statements by 4.00 pm on 20 August 2020; and

(d) The matter is re-listed for hearing at 9.30 am on Wednesday, 2 September 2020, Thursday, 3 September 2020 and Friday, 4 September 2020.

[13] On 27 July 2020, Mr Sabeto sent an email in the following terms to the Respondent and my Chambers:

“Hi all,

We agree ,  

I am no longer Anita’s representative, so as youstate it’s only f”air” for Miss Shankar if this case is adjourned to give Miss Shankar time to engage a real solicitor , also given the fact that your case must be rock solid for you to be so considerate to n wishing Miss Shankar have a fair hearing

So Miss Shankar is seeking an adjournment so she can engage an excellent industrial relations law firm to win her case.

All documents and witnesses subpoenaed are still required , and a new sett of dates for hearings also.” (Original text retained)

[14] At 1.06 pm on 28 July 2020, the Respondent agreed to an extension of one week in respect of each of the 21 July Directions, excluding the hearing dates. At 4.10pm on 28 July 2020, I amended the 21 July Directions as proposed by the Respondent (the “28 July Directions”). The 28 July Directions provided:

(a) The Applicant to file and serve an outline of submissions, witness statements and other documentary material by 4.00 pm Thursday, 6 August 2020;

(b) The Respondent to file and serve an outline of submissions, witness statements and other documentary material by 4.00 pm Thursday, 20 August 2020;

(c) The Applicant file and serve any reply material, including any witness statements and other documentary material in reply by 4.00 pm Thursday, 27 August 2020; and

(d) The Hearing dates of 2, 3, 4 September be maintained.

[15] From 29 to 31 July 2020, Mr Sabeto (despite having withdrawn his appearance), emailed my Chambers on numerous occasions enquiring whether the request for further adjournment to engage a legal practitioner had been granted, and then disputing whether the one week extension granted in the 28 July Directions was sufficient. That exchange culminated in an email in the following terms at 9.30am on 31 July 2020:

“If Fairmont Resort & Spa, their legal representatives,,& the Deputy President have an issue with granting time extensions so Miss Shankar’s case can be presented in a more traditional manner by a qualified legal representative then it’s either Re- listed to allow adequate time for Miss Shankar to enlist a qualified legal representative or Lily gardiners requests for me not to represent Miss Shankar is ignored and I will represent Miss Shankar myself.

If as stated I am unorthodox, unqualified, and cause great concern to Lily Gardiner and her team of professionals then they should breeze through this case and indeed justify Miss Shankar’s dismissal.

But as they know that the entire case is built on false accusations, zero evidence and unreliable witnesses they are grabbing at straws as they know with the subpoenaed documents and witnesses called that their case of lies will be exposed.

So our request still stands if not granted we will seek adjournment through various avenues and also be lodging a formal compliant.”

[16] It appeared that Mr Sabeto, in referring to a “formal compliant”, intended to refer to a “formal complaint”. Accordingly, at 10.06am on 31 July 2020, my Chambers responded to Mr Sabeto as follows:

“Dear Mr Sabeto,

Your further request for an extension is declined. The Deputy President maintains that there is sufficient time to instruct legal representation.

Please see the below information regarding the complaints procedure. Please note that during the intervening period, compliance with all directions, that were agreed by both parties, is required.

permission to represent, and the Respondent’s submissions filed on this topic, the Applicant is directed to provide a reply response by 4pm 7 August 2020.”

[17] On 5 August 2020, by email from Mr Sabeto, the Applicant filed a document titled “Applicants Outline of Submissions” (the “5 August Submission”). The 5 August Submission was not filed in accordance with the 11 June Direction, as amended by the 2 July Direction, or the 21 July Directions as amended by the 28 July Directions. They again included no witness statements, notwithstanding that points 16 and 17 of “Documentary Evidence” listed “Miss Shankar’s statement” and “Mr Sabeto’s statement”, nor arguably even submissions. In the circumstances of the s. 399A application, I set out the full text of the 5 August Submission:

“IN THE FAIR WORK COMMISSION Matter,
AT SYDNEY, NEW SOUTH WALERS

SHANKAR, ANITA Applicant
V
FAIRMONT RESORT & SPA Respondent
APPLICANTS OUTLINE OF SUBMISSIONS

A. Witness statements

1. The Applicant intends to question Deborah Cunningham in relation to the following.

a. Miss Shankars employment history

b. Accor’s – Managing Performance – Performance management procedure.

c. Accor’s – Housekeeping Supervisor Position Description.

d. Standard Terms – Hospitality Industry (General) Award

e. Miss Shankars contract of employment

f. Accor’s – Guidelines for performance review

g. Miss Shankars First written warning

h. Miss Shankars Second written warning

i. Miss Shankars Show cause letter

j. Miss Shankars Dismissal letter

k. The safety breach allegedly made by Miss Shankar that allegedly placed other staff members at risk.

l. The alleged safety breaches.

m. The Alleged breach into the Accor code of conduct

n. The Alleged dishonest missus of the Bienvenu Card privileges card

o. Bullying and harassment

2. The Applciant intends to question Leigh Salas in relation to the following.

a. Miss Shankars employment history

b. Accor’s – Managing Performance – Performance management procedure.

c. Accor’s – Housekeeping Supervisor Position Description.

d. Standard Terms – Hospitality Industry (General) Award

e. Miss Shankars contract of employment

f. Accor’s – Guidelines for performance review

g. Miss Shankars First written warning

h. Miss Shankars Second written warning

i. Miss Shankars Show cause letter

j. Miss Shankars Dismissal letter

k. The safety breach allegedly made by Miss Shankar that allegedly placed other staff members at risk.

l. The alleged safety breaches.

m. The Alleged breach into the Accor code of conduct

n. The Alleged dishonest missus of the Bienvenu Card privileges card

o. Providing false documents

3. The applicant intends to question Nathan Cox in relation to the following.

a. Providing false statements

b. Alleged dishonesty misuse of Bienvenu card

c. Incidents at Pullman Olympic Park

d. Novotel Olympic Park

4. The applicant intends to question Miss Shankars work colleagues in relation to the following.

e. Miss Shankars work history / performance

f. Miss Shankars leadership qualities

g. Miss Shankars commitment to creating a culture of safety amongst workers

h. Fairmont Resorts policy and procedures.

B. Documentary Evidence.

1. Accor’s Performance Management procedure

2. Accor’s Housekeeping Supervisors position description

3. Accor’s Guidelines for performance review

4. Standard Terms and conditions Hospitality Industry

5. Miss Shankars contract of employment

6. Miss Shankars coaching discussion

7. Miss Shankars verbal warning

8. Witness statements in Miss Shankars First warning

9. Investigation findings in Miss Shankar’s First warning

10. Witness statements in Miss Shankars Second warning

11. Investigation findings in Miss Shankars Second warning

12. Witness statements in Miss Shankars Final warning

13. Investigation findings in Miss Shankars final warning

14. Credit card statement from Ben Sabeto

15. Booking Itinerary

16. Miss Shankar’s statement

17. Mr Sabeto’s statement”

[18] On 12 August 2020, the Respondent filed an application pursuant to s.399A of the Fair Work Act 2009 (Cth) (the “Act”) seeking that the Applicant’s unfair dismissal application be dismissed (the “s.399A Application”). That application was subsequently amended on 28 August 2020, with only very minor amendments.

[19] The matter was listed for a Directions Hearing on Monday 17 August 2020, in relation to the s. 399A Application. In that Directions Hearing, the directions for the hearing of the Applicant’s unfair dismissal application were vacated, including the hearing dates. The matter was listed for Hearing of the s. 399A Application on 3 September 2020. Directions for the filing of materials in relation to the s. 399A Application were made as follows (the “17 August Directions”):

1. Ms Anita Shankar (the Applicant) is directed to file with the Fair Work Commission, and serve on Fairmont Resort & Spa (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in opposition of the s. 399A application in this matter by 4pm on 21 August 2020.

2. The Respondent is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 28 August 2020.

[20] Submissions were not received from the Applicant in accordance with the 17 August Directions. On 24 August 2020, my Chambers emailed the Applicant as follows:

“Dear Ms Shankar,

I note that your submissions, in respect of the s. 399A application, were due by 4pm Friday 21 August 2020. Please see the attached directions issued on 17 August 2020.

Chambers is yet to receive the Applicant’s submissions in this regard.”

[21] No further communications were received from the Applicant until two emails at 10.57am and 11.05am on 2 September 2020, the day before the hearing of the s. 399A Application. At that time, Mr Sabeto sent the two emails to my Chambers, and the Respondent’s legal representatives, in almost identical terms, which were as follows:

“I am seeking that this matter be re-scheduled to a later date no sooner than November

I am of no presumption that the adjournment will be granted on the following substantial grounds provided in this application.

1 unavailability of a representative that started acting for a party before the application was listed for hearing.

      . Ben sabeto who was acting for me is away for family business and has been unable to return as planned due to flight restrictions leaving  any representation and or documents required to prove my caseo

mom mm

2. death or serious injury of a family member of an applicant, a significant person in the respondent's business or a witness, 

              As mentioned before in previous requests we have family members experiencing serious health issues which is consuming all of our time at this stage  

We request time to attend to our families needs then allow us time to focus on these matters and give mthem the required.

We are seeking a date no sooner than 1/11/2029 which will allow time for us to be there for our families.” (Original text retained)

[22] At 12.22pm on 2 September 2020, my chambers responded to the two emails received as follows:

“Dear Mr Sabeto and Ms Shankar,

It is presumed that you are requesting an adjournment until 1 November 2020, not 2029.

The request for any adjournment is denied.

The Deputy President notes Mr Sabeto’s unavailability to attend the Hearing in person and as such will accommodate his attendance via teleconference. I will contact you on your previously supplied mobile number, **********, promptly at 9:30am.  

Please confirm that Ms Shankar will be in attendance in person.”

[23] At 2.58pm and 7.16pm on 2 September 2020, two further requests for adjournment were made to my Chambers only. The Applicant has sought that the contents of those requests remain confidential. I considered those requests and rejected them. By email from my Chambers either the Applicant or Mr Sabeto were requested to attend the 3 September Hearing in person or by telephone.

[24] Neither the Applicant nor Mr Sabeto attended the Hearing of the matter on 3 September 2020. Attempts were made by my Associate to contact either the Applicant or Mr Sabeto by telephone without success. In that Hearing the Respondent made brief submissions in support of the s. 399A Application. After the conclusion of the Hearing, my Chambers sent an email to Ms Shankar in the following terms:

“Dear Ms Shankar,

I refer to the above matter and the listing of the matter for Hearing at 9:30am 3 September 2020.

The Hearing of the Respondent’s s. 399A application proceeded this morning at the Fair Work Commission before Deputy President Cross.

I note that your adjournment requests were denied and that you were notified that either your, or Mr Sabeto’s, attendance was expected. I was unsuccessful in reaching either yourself or Mr Sabeto via telephone.

With the exception of the non-compliance with the 17 August directions, the Respondent’s arguments were confined to the contents of their amended application.

In a further effort to facilitate your participation, the Deputy President requests your Written Submissions in response to the s. 399A application. To assist you in preparing your response, Chambers will provide to you by email the full transcript of the Hearing. You will be permitted 5 days to file your Submissions once the transcript is sent to you.

The Respondent will be afforded three days to submit any reply material to your Submissions. The Deputy President will then determine the outcome of the s. 399A application.

In any Written Submissions that you choose to file, if you refer to any factual assertions, for example Mr Sabeto being delayed by flight restrictions (email from Mr Sabeto of 2 September 2020, at 11.05am), or losses within families (email from Mr Sabeto of 1 July 2020, at 10.09am), in order for those assertions to be accorded any weight you should include documentary evidence recording the basis for those factual assertions.”

[25] By email at 1.14pm on 10 September 2020, the transcript of the Hearing on 3 September 2020 was sent to the Applicant and Mr Sabeto. That email advised as follows:

“Dear Ms Shankar,

In accordance with my email below, please see attached transcript for the Hearing on 3 September 2020.

Please provide any Written Submissions in response to the s. 399A application by 4pm 18 September 2020.”

[26] At 1.50pm on 18 September 2020, the Applicant sent an email to my Chambers that stated “Please see attached submissions and evidence, we still require subpoenaed documents and Accor workers as requested.” Annexed to that email were statements of the Applicant and Mr Sabeto, together with other evidence to be relied upon by the Applicant in support of her unfair dismissal application (the “18 September Materials”). No part of the 18 September Materials responded in any way to the s. 399A Application, or the oral submissions made on behalf of the Respondent during the 3 September 2020 Hearing.

[27] On 23 September 2020, pursuant to the Directions issued in the 3 September 2020 hearing, the Respondent replied to the 18 September Materials (the “Respondent’s Reply Submission”). The Respondent expanded on oral submission made at the 3 September 2020 hearing regarding the Applicant's failure to attend that Hearing. The Respondent noted that consideration should also be given to s. 399A(1)(a) of the Act, as the Applicant's unreasonable failure to attend at the 3 September 2020 Hearing should also be taken into consideration in the s. 399A Application.

[28] The Respondent noted that the Applicant had not advanced any evidence to demonstrate that her failures to comply with the directions of the Commission, and her failure to attend a hearing conducted by the Commission, were reasonable. The filing of witness statements over two months after 2 July 2020 (the date on which her witness statements were first due to be filed and served), without any explanation for the considerable delay, was not reasonable. The Respondent submitted that the pattern of failure by the Applicant in relation to the requirement to file her evidence in accordance with directions issued by the Commission (despite the issuance of multiple amended directions) and her failure to attend the Dismissal Application Hearing, made her conduct unreasonable.

[29] The Respondent submitted that the above failures were compounded by the failure of the Applicant to file any material or submissions in response to the s.399A Application, either:

(a) By 4pm on 21 August 2020, pursuant to the 17 August Directions; or

(b) Prior to the Dismissal Application Hearing; or

(c) In the 18 September Materials.

Relevant Legislation

[30] 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 s. 399A Application

[31] The Respondent’s grounds for the s. 399A Application are outlined in the Form F1 Application Form as follows:

“GROUNDS FOR APPLICATION TO DISMISS

49. The Applicant and Mr Sabeto have provided no reasonable excuse to date for their conduct, being the unreasonable failure to comply with a direction or order of the Commission relating to the Application.

50. The Respondent has not acted unreasonably. On 28 July 2020 the Respondent attempted to reasonably accommodate the Applicant's requests for amended directions and timeframes to seek appropriate legal representation.

51. On 12 July 2020, when the Applicant submitted her Anita Shankar v Fairmont Resort submission to the Commission. This document did not contain the Applicant's witness statements or other evidence in compliance with the 2 July 2020 Direction.

52. On 14 July 2020, when the Applicant submitted an "outline of her case". Again this document did not contain the Applicant's witness statements or other evidence in compliance with the 2 July 2020 Direction.

53. The Unfair Dismissal Practice Note makes clear at paragraph 55, that witness statements stand as evidence of a witness, unless a member decides otherwise. At no stage during the proceedings has the Deputy President made orders to the effect that the Applicant's evidence may be presented in any other manner.

54. During the 21 July 2020 conference with Deputy President Cross, the Applicant was specifically advised that witness statements must be served in support of her claim.

55. The Applicant has provided no clear explanation as to why she refuses to produce witness statements.

56. The Respondent has now incurred significant legal costs in defending the unmeritorious claim due to the Applicant's flagrant disregard for the Directions and Orders of the Commission.

57. The Applicant's representative, Mr Sabeto has on numerous occasions proposed to adduce evidence in a manner that is inconsistent with the objects of the unfair dismissal jurisdiction and continues to inherently complicate the proceedings and cause the matter to be run inefficiently.

58. The Respondent has been put in a position where it is required to prepare a case without having seen the Applicant's evidence.

59. In the present circumstances the Respondent is entirely prejudiced in its ability to prepare its evidence and materials, and is increasingly being put to additional costs as a direct result of the non-compliance of the Applicant.”

[32] As noted above, the Respondent also submitted that a further ground for dismissal arose pursuant to s. 399A(1)(a) of the Act, because the Applicant unreasonably failed to attend at the 3 September 2020 hearing.

Relevant Principles

[33] The Commission has the discretion to dismiss an unfair dismissal application under s. 399A of the Act on application by an employer, in circumstances where there has been an unreasonable failure to attend a conference or a hearing held by the Commission in relation to the application, or unreasonable non-compliance with directions of the Commission.

[34] The Explanatory Memorandum to the Fair Work Amendment Bill 2012, which amended the Act to include the provision, said in relation to s. 399A applications, that the intention of the provision was “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

[35] In Adrian Whittaker v Total Harvesting Pty Ltd T/A Total Harvesting 2(“Whittaker”), Deputy President Clancy summarised the relevant principles in considering s. 399A, drawing on a decision of the Full Bench of the Australian Industrial Relations Commission in Ghalloub v Aon Risk Services Australia Limited (“Ghalloub”)3. The Deputy President summarised the relevant principles as follows:

“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). In summary, that decision outlined the following principles:

1. the starting point of any consideration of 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.” 

[36] The sixth principle outlined in Whittaker directs focus on the circumstances of the Respondent, which are undoubtedly a relevant consideration arising from the objects of the Act. As the Full Bench observed in Viavattene v Health Care Australia (“Viavattene”) 4:

“… 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).”

[37] s. 381 of the Act provides:

“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.

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.” (Emphasis added)

Consideration

(a) Unreasonable Failure to Attend a Hearing or Comply with a Direction

(i) 11 June Directions, as amended by the 2 July Directions

[38] The Applicant failed to comply with the 11 June Directions, as amended by the 2 July Directions, because the 12 July Submissions were three days late (notwithstanding that an extension of eight days for filing had been granted), but more importantly, they included no witness statements, or arguably even submissions, as required. That failure was unreasonable for the following reasons:

(a) The 11 June Directions had, as detailed at paragraph [4] above, specifically outlined how witness statements and submissions should be prepared; and

(b) At the time of preparing the 12 July Submissions, the Applicant was represented by Mr Sabeto. In a submission seeking permission to represent the Applicant filed in the proceedings, Mr Sabeto outlined his experience as being that of someone knowledgeable of tribunal proceedings, as follows:

“The applicant seeks permission to be represented in preceding by Mr Ben Sabeto who is not a paid agent subject to section 596 of the Act, the commission may permit a person to represent a party in a matter before the Commission despite the persons failure to lodge a notice in accordance with sub rule (1)

1. The applicant also strongly disagrees with Miss Schafer’s personal opinion on Mr Sabeto’s ability [ Mr Sabeto is not a qualified legal practitioner nor does he retain any qualifications which would allow him to conduct the matter with the required efficiency and technical expertise]

a. Mr Sabeto has a master’s in occupational health safety & Environmental Management with a portion of that Degree being Law

b. Has represented in both Queensland and South Australian Commission hearings and been successful on each occasion.

c. Has represented applicants in VCAT Hearings

d. Has represented applicants in Workers Compensation hearings and been successful on each occasion

e. Has 25 years’ experience in Hospitality Management with last position as Operations Manager for Ramada Resort in Queensland

f. Over 15 years’ experience in Safety Management, HR.”

(ii) 21 July Directions as Amended by the 28 July Directions

[39] The Applicant failed to comply with the 21 July Directions as amended by the 28 July Directions, because the 5 August Submission (notwithstanding that an extension of one week for filing had been granted), included no witness statements, notwithstanding that points 16 and 17 of the part titled “Documentary Evidence” listed “Miss Shankar’s statement” and “Mr Sabeto’s statement”, nor arguably even submissions. That failure was unreasonable for the following reasons:

(a) On 21 July 2020, at the directions hearing in the matter, the Applicant’s attention was directed by the Commission to that part of the 11 June Directions that outlined how witness statements and submissions should be prepared. The Applicant had been specifically directed as to what was required to comply with the directions; and

(b) While on 27 July 2020, Mr Sabeto stated that he was no longer the Applicant’s representative, Mr Sabeto corresponded with my Chambers on behalf of the Applicant on 29, 30 (twice) and 31 July 2020, and he served the 5 August Submission from his email address. I therefore conclude that Mr Sabeto continued to represent the Applicant, and so she could not be characterised as a self-represented litigant at any material time.

(iii) 17 August Directions

[40] The Applicant failed to comply with the 17 August Directions by simply failing to file any outline of submissions, witness statements or other documentary material that she intended to rely upon in opposition of the s. 399A application by 4.00pm on 21 August 2020. I acknowledge that there was no requirement to actually file some materials, and the Applicant could choose not to file any materials in opposition to the s.399A Application, though such an approach would lead to the s. 399A Application being considered unopposed.

[41] As the Applicant eventually filed the 18 September Materials, I conclude that the Applicant intended to oppose the s. 399A Application. The Applicant therefore failed to comply with the 17 August Directions by failing to file any materials that she intended to rely upon in opposition of the s. 399A application by 4.00pm on 21 August 2020, or thereafter. That failure was unreasonable for the following reasons:

(a) At the directions hearing on 17 August 2020, it was clearly outlined to the Applicant that the directions for the hearing of her unfair dismissal application had been vacated and that the Commission was proceeding to hear, in accordance with the 17 August Directions, the s. 399A Application;

(b) Upon the Applicant failing to file any materials that she intended to rely upon in opposition of the s. 399A application by 4.00pm on 21 August 2020, the Applicant was contacted by my Chambers noting that no materials had been received from her; and

(c) The Applicant took no steps to file any materials that she intended to rely upon in opposition of the s. 399A application thereafter, or prior to the hearing of the s. 399A Application.

(iv) 3 September Hearing

[42] The Applicant failed to attend the 3 September Hearing. That failure was unreasonable for the following reasons:

(a) While the Applicant had from 10.57am and 11.05am on 2 September 2020, sought adjournments of the 3 September Hearing, all adjournment requests had been refused;

(b) Accommodation was made for the Applicant to attend the 3 September Hearing by telephone; and

(c) The Applicant has failed subsequently to substantiate any basis for the adjournment requests made.

(v) Directions Arising from 3 September Hearing

[43] Notwithstanding her non-attendance at the 3 September Hearing, the Applicant was granted further opportunity to file materials opposing the s. 399A Application, after being provided with the transcript of the s. 399A Application, by 18 September 2020. The Applicant failed to file any materials responding to the s. 399A Application, and that failure was unreasonable because:

(a) The materials filed, being the 18 September Materials, did not respond in any way to the s. 399A Application, or the oral submissions made on behalf of the Respondent during the 3 September 2020 hearing; and

(b) The Applicant was clearly on notice from the directions hearing on 17 August 2020, the 17 August Directions, the s. 399A Application, and the transcript of the 3 September Hearing, that the sole matter before the Commission was the s. 399A Application.

(b) Should the Applicant’s Unfair Dismissal Application be Dismissed

[44] I note that the starting point of any consideration of the s. 399A Application is that the Applicant is entitled to have her case heard, and I am willing to assume for the purposes of determining the s. 399A Application that the Applicant has an arguable case in her unfair dismissal application.

[45] The history of this matter, however, discloses an obdurate refusal by the Applicant to follow directions of this Commission. On four separate occasions the Applicant has unreasonably failed to comply with directions, and on one occasion unreasonably failed to attend a hearing.

[46] The fact that the Applicant has finally made an attempt to comply with the 11 June Directions, as amended by the 2 July Directions, or the 21 July Directions as amended by the 28 July Directions, does not simply result in one or more of those directions being enlivened. All directions relating to the hearing of the Applicant’s unfair dismissal proceedings were vacated and replaced by the 17 August Directions, that the Applicant has simply ignored.

[47] The status of this matter is that the s. 399A Application is before the Commission. The Applicant has ignored three opportunities to make submissions in relation to that application, and I do not consider that any further opportunities are necessary. The Applicant has been provided with an opportunity to present her case, and the Commission is not required to ensure that the Applicant took advantage of the opportunities presented. As Deane J said in Sullivan v Department of Transport 5:

“. . . it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the act nor the common law imposes on the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.” 

[48] Justice Kirby made an observation to similar effect in Allesch v Maunez 6 regarding proceedings in the Family Court of Australia, but equally apposite to proceedings before the Commission, when he observed:

“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.

Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment.” 

[49] The 11 June Directions, as amended by the 2 July Directions, and the 21 July Directions as amended by the 28 July Directions, provided for case management of the Applicant’s unfair dismissal application to ensure compliance with the objects of Part 3 – 2 of the Act for quick, flexible and informal procedures that address the needs of employers and employees. The history of the Applicant’s non-compliance with those directions clearly indicates an unwillingness on the Applicant’s part to have the matter ready for trial within an acceptable period of time. The Applicant’s failure to comply with the directions relating to the hearing of the s. 399A Application further confirms that unwillingness. As a result, the proceedings have been unnecessarily delayed, with hearing dates for the unfair dismissal application having to be vacated twice.

[50] The Respondent has throughout appropriately sought to ensure the Applicant’s compliance with all directions issued. That has without doubt resulted in unnecessary expense to the Respondent. It would be unfair to the Respondent to allow these protracted proceedings to continue.

[51] In what I consider to be the extreme circumstances of this case, it is appropriate that I exercise my discretion to dismiss the Applicant’s unfair dismissal application pursuant to s. 399A of the Act as sought by the Respondent.

Conclusion

[52] For the reasons outlined above, I have decided to grant the application by the Respondent and dismiss the Applicant’s s. 394 application pursuant to s. 399A(1)(b) of the Act.

[53] An order dismissing the application will be issued in conjunction with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR723177>

 1   Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161-163].

 2   [2018] FWC 1583, at [24]; See also Ingui v MSS Security Pty Ltd[2018] FWC 2201, decision of Masson DP.

 3   Print PR956665, 21 March 2005, Giudice J, Hamilton DP and Larkin C.

 4   [2013] FWCFB 2532, at [39].

 5 (1978) 20 ALR 323 at 343.

 6 (2000) 203 CLR 172. at [35], [38]-[40].