Ms Jasmine Loel v Guzman Y Gomez Franchising Pty Limited T/A Guzman Y Gomez
[2022] FWC 2250
•13 SEPTEMBER 2022
| [2022] FWC 2250 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Jasmine Loel
v
Guzman Y Gomez Franchising Pty Limited T/A Guzman Y Gomez
(U2022/3499)
| DEPUTY PRESIDENT CROSS | SYDNEY, 13 SEPTEMBER 2022 |
Application for an unfair dismissal remedy - s.399A application dismissed.
Factual Background
On 23 March 2022, Ms Jasmine Loel (the Applicant) lodged an unfair dismissal application (the Application) against Guzman Y Gomez Franchising Pty Limited T/A Guzman Y Gomez (the Respondent). The Respondent denied it had unfairly dismissed the Applicant. Notwithstanding that this decision relates to a s.399A application by the Respondent, this decision will refer the Applicant and Respondent as they are identified in the substantive proceedings.
On 16 May 2022, the parties participated in a conciliation conference, however the matter failed to resolve at that conciliation before the Fair Work Commission (the Commission).
On 8 June 2022, after the provision of draft directions from my Chambers, I conducted a Member Assisted Conciliation and Directions Hearing in the matter. The matter failed to resolve, and I issued the following case management Directions, without objection by either party (the 8 June Directions):
1. Ms Jasmine Loel (the Applicant) is directed to file with the Fair Work Commission and serve on Guzman Y Gomez Franchising Pty Limited T/A Guzman Y Gomez (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of the application in this matter by 4pm on 22 June 2022.
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 4pm on 6 July 2022.
3. The Applicant 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 20 July 2022.
4. Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4pm on 6 July 2022.
The 8 June Directions included various notes, including the following:
Notes:
a) If you wish to vary these directions, you can make an application to do so in writing
directly to the chambers of Deputy President Cross at:
[email protected]
…
c) Any request for an extension of time for the filing of materials, or for an adjournment of the arbitration hearing, must be made as soon as practicable and must be based on substantial grounds. Noncompliance with directions will not otherwise be tolerated.The Directions required, inter alia the Applicant to file with the Commission and serve upon the Respondent evidence and an outline of submissions by 4:00 pm on 22 June 2022. The Applicant did not do so and at 11.33am on 24 June 2022, my Chambers wrote to the parties as follows:
Dear Parties,
I note the Applicant has not complied with Direction 1 of the Commission’s Directions issued on 8 June 2022 (Attached). Please see below Direction:1. Ms Jasmine Loel (the Applicant) is directed to file with the Fair Work Commission and serve on Guzman Y Gomez Franchising Limited T/A Guzman Y Gomez (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in relation to the jurisdictional objection raised in this matter by 4pm on 22 June 2022.
The Applicant is required to email Chambers by 4:00pm Today, 24 June 2022 with their submissions and other materials, or otherwise advise the Commission of any request for extension, discontinuance, or other matter affecting submission.
I draw the parties’ attention to Note c) of the Listing Directions, reproduced below:c. Any request for an extension of time for the filing of materials, or for an adjournment of the arbitration hearing, must be made as soon as practicable and must be based on substantial grounds. Noncompliance with directions will not otherwise be tolerated.
At 2.43pm on 24 June 2022, the Applicant’s representative, also with the surname Loel and apparently the Applicant’s sibling, wrote to my Chambers as follows:
We refer to your email this morning and the directions issued on 8 June 2022.
We apologise that the Applicant has not filed her outline of submissions, witness statements and other documentary material in accordance with direction 1 issued on 8 June 2022.
The Applicant’s statement and the outline of submissions are well advanced and we anticipate being in a position to file and serve those documents by the middle of next week.
Accordingly, we respectfully seek an extension of the time in direction 1 to 4:00pm on 29 June 2022.
Our client naturally agrees to an extension of the dates for the filing and service of the Respondent’s material and the Applicant’s material in reply by 7 days. We apologise for the inconvenience to the Commission and to the Respondent. However, we do not anticipate that the requested extensions of time will prejudice the hearing dates in September 2022.
By way of explanation for the delay, we note that the Respondent has asserted that it put a large number of allegations and findings against our client and she is required to address those in her statement and submissions.
We also note that the Applicant has requested, by way of informal production, documents (which were originally requested in February 2022) which are relevant to the key events and allegations. The Respondent only declined to provide the requested documents on 16 June 2022.
Finally, we note that the parties had been in active settlement discussions until, at least, 17 June 2022. Of course, it had been hoped (presumably by both parties) that settlement would obviate the need to incur costs on the preparation of submissions and evidence.
For the foregoing reasons, we respectfully request the extensions of time referred to above.
At 1.31pm on Monday 27 June 2022, the Respondent responded to the Applicant’s correspondence as follows:
In response to the request in the email below, the Respondent’s position in relation to the extension sought by the Applicant is as follows:
1. Each of the reasons that the Applicant has relied upon in seeking the extension do not reasonably explain their delay. Specifically:
a. It is asserted by the Applicant that the “large number” of allegations and/or findings that are the subject of their statement and submissions have contributed towards their delay. Even if this is the case, this would have been known to the Applicant at the time the Directions were made and during the entire period in which the Applicant had to comply with Direction 1.
b. It cannot be the case that the documents sought by informal production were necessary to the preparation of the Applicant’s materials due in compliance with Direction 1, as since informal production was declined on 16 June 2022, no further steps have since been made by the Applicant to obtain the documents sought.
c. Settlement discussions (noting those referred to in the Applicant’s email below were initiated by the Respondent on 15 June 2022) during a matter would be expected as an ordinary occurrence in proceedings, and the mere possibility of resolution by settlement should not be relied upon by the Applicant as a reason to delay preparation that would enable it to comply with the directions of the Commission.
2. In any event, if the Applicant’s reasons are accepted as sufficient, on the Applicant’s own account, the Applicant would been aware of a potential difficulty in complying with the Directions by 17 June 2022 at the latest. No extension was sought until one week later, after the time for compliance had passed by some two days, and further not until the Applicant was prompted to do so by a further direction from the Commission on 24 June 2022.
3. Notwithstanding the above, as a matter of practicality, the Respondent does not oppose the extension sought, subject to item 2 of the Directions also being amended to allow the Respondent until 4:00 pm on 13 July 2022 to file its relevant materials.
4. For completeness it is noted that in the event of future non-compliance with the Commission’s Directions by the Applicant, the Respondent reserves its rights to file an application pursuant to section 399A of the Fair Work Act 2009 (Cth).
At 2.35pm on 27 June 2022, the 8 June Directions were amended (the Amended Directions). The Amended Directions required the Applicant to file with the Commission and serve upon the Respondent evidence and an outline of submissions by 4:00 pm on Wednesday 29 June 2022.
At 3.57pm on 29 June 2022, the Applicant wrote to my Chambers as follows:
I refer to your email dated 27 June 2022.
Regrettably, my client is in the position of needing to seek a further extension of time to complete service of her evidence and submissions.
Our client’s evidence is very well advanced. However, we discovered today that our client is interstate for work until tomorrow night. Therefore, our client will be unable to sign her statement until, at least, Friday. We had hoped that the statement could be completed and served unsigned today, and our client has been working with us between meetings and appointments to finalise her statement. However, it has now become evident that that will not occur before 4.00pm today.
May we please request an extension of time for our client to file and serve her material to 5.00pm on Friday, 1 July 2022, with a resulting extension for the Respondent’s material in chief to 15 July 2022 and our client’s reply material to 22 July 2022.
If you have any queries in relation to this matter, please do not hesitate to contact us.
At 4.22pm on 29 June 2022, my Chambers sought the views of the Respondent regarding the above request of the Applicant, and at 8.19pm on that day the Respondent wrote opposing the extension sought and filing a Form F1 Application (the 399A Application), requesting the Commission dismiss the Application pursuant to section 399A of the Fair Work Act (the Act).
.
On 30 June 2022, I vacated the Amended Directions and the scheduled hearing dates, and issued further directions relating to the hearing of the 399A Application. Notwithstanding the vacation of the hearing dates, the Applicant filed her statement in the substantive proceedings at 5.20pm on 1 July 2022.
Respondent’s Submissions
The Respondent defined the failure of the Applicant to file and serve her evidence and an outline of submissions by 4:00 pm on 22 June 2022, as the First Instance of Non-Compliance. The failure to file and serve evidence and submissions by 4:00 pm on 29 June 2022, was defined as the Second Instance of Non-Compliance.
Regarding the First Instance of Non-Compliance, and the reasons provided by the Applicant, the Respondent submitted that:
(a) When the 8 June Directions were made, and throughout the whole period for compliance with the 8 June Directions, the Applicant was aware of the relative complexity of the matter;
(b) The request for production of documents was declined on 16 June 2022, six days before the compliance date; and
(c) Settlement discussions only persisted between 17 and 19 June 2022 and were concluded well before the compliance date.
Regarding the Second Instance of Non-Compliance, the Respondent submitted:
(a) The Applicant did not make her representative aware of potential difficulties she would have in attending to the finalisation of her statement until the same day it was due for filing and service;
(b) Nothing arising from the Applicant being located in another state to her representative would have prevented her from attending to taking further steps to finalise a witness statement;
(c) Following the First Instance of Non-Compliance and the issuance of the Amended Directions, the Applicant should have prioritised the finalisation of her statement ahead of and/or around other meetings or appointments stemming from other commitments and;
(d) The explanation proffered in the Applicant’s email to Chambers of 29 June 2022 would at its highest, only be relevant to any delay relating to the Applicant’s statement. No reason whatsoever was proffered in relation to other materials that were due for filing.
The Respondent particularly highlighted the failure to communicate by the Applicant in relation to the First Instance of Non-Compliance. The Applicant did not contact the Commission for a period of some two days, and presumably, not until they were prompted to do so by the Commission’s direction.
The Respondent submitted the power in section 399A is also one which the Commission has described as being able to be “exercised subject only to an objective evaluation of the Applicant’s conduct, and more particularly, whether or not that conduct was unreasonable in the circumstances”.[1]
The Respondent submitted that such circumstances arise as the Applicant had two opportunities to advance her claim and has disregarded directions of the Commission, without a sufficient explanation, on both occasions.
In not following the Directions issued by the Commission on two occasions, without any valid reason or explanation, and on one occasion without contacting the Commission in any way until prompted, the Applicant’s conduct was such as to enliven the jurisdiction of the Commission’s to dismiss the substantive Application.
Applicant’s Submission
The Applicant submitted that as the time for compliance with the 8 June Direction was extended, with the consent of the Respondent, it was not open to the Respondent to complain about noncompliance with the 8 June Direction.
The Applicant also noted that her evidence-in-chief, in the form of a statement of the Applicant, was filed and served on Friday, 1 July 2022 and her written outline of submissions was filed and served on Monday, 4 July 2022.
The Applicant noted that the discretion to dismiss proceedings under section 399A of the Act must be exercised not only cautiously[2], but also in accordance with section 577 of the Act. In particular, the Commission must exercise its powers under section 399A in a manner that is not only fair and just, but also quick, informal and avoids unnecessary technicalities. Pursuant to section 578 of the Act, the Commission is also bound to take into account the objects of the Part 3-2 of the Act, which are set out in section 381(1)(b)(i), being "to establish procedures ... that: (i) are quick, flexible and informal”.
The Applicant submitted she had provided a reasonable explanation for not complying with the directions made on 8 and 27 June 2022, and she is not required to account for her every movement and action during the relevant period.
The Applicant submitted the Respondent's insistence upon strict compliance with time stipulations is also at odds with its own conduct in the proceedings. The Applicant noted the Application was lodged on 23 March 2022 and the Respondent's Form F3 Response was lodged some 30 calendar days later, on 22 April 2022, outside the relevant time frame.
The Applicant expressed regret and apologised for the delay, but submitted that the delay was minor in comparison to the drastic consequences of granting the Respondent's 399A Application, and the loss of the Applicant's right to pursue her claim. In circumstances where the Applicant's delay amounted to a matter of days when the hearing date was still over two months away, the dismissal of the Application would be unfair and unjust, contrary to section 577(a) of the Act. Further, the insistence upon strict compliance with time stipulations in the absence of any real prejudice, inconvenience or significant delay would be to introduce a degree of formality, unnecessary technicality and inflexibility that section 577(b) and section 381 of the Act require the Commission to avoid.
Respondent’s Reply Submission
In reply the Respondent submitted:
(a) the non-compliance with the 8 June Directions was relevant notwithstanding that they were varied by consent. They necessarily had to be varied because of the First Instance of Non-Compliance;
(b) No reasonable reasons for non-compliance had been offered, and the failure to communicate with the Commission was materially relevant;
(c) It was clear that the Applicant did not properly instruct her representatives resulting in the Second Instance of Non-Compliance;
(d) It is not necessary for the Respondent to establish that it had suffered prejudice; and
(e) The Applicant’s reliance on Sections 381 and 577 was inconsistent with the actions of the Applicant, noting that no good reasons for non-compliance had been provided, and the Applicant had failed to communicate with the Commission;
(f) Regarding the Respondent’s Form F3, the Respondent was not served with the Application by the Commission until 13 April 2022.
Relevant Principles
S.399A of the Fair Work Act 2009 provides:
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:
(g) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(h) failed to comply with a direction or order of the FWC relating to the application; or
(i) 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.
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.
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.”[3]
In Adrian Whittaker v Total Harvesting Pty Ltd T/A Total Harvesting[4](“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”)[5]. 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.”
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”)[6]:
“… 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).”
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) Failure to comply with a Direction or Order of the FWC
At the outset of this consideration, it is necessary to observe that the Applicant pursued a cavalier attitude to compliance with directions of the Commission. The 8 June Directions, made with the express agreement of the Applicant and the Respondent, were subsequently treated as mere suggestions.
Where directions are made by the Commission, it is expected that parties take all available steps to comply with those directions. Where compliance is not to be possible, immediate communication with the Commission should ensue to deal with the anticipated non-compliance. It should never be necessary for the Commission to “chase up” a defaulting party.
(i) First Instance of Non-Compliance
There were no acceptable explanations for the First Instance of Non-Compliance. It is not unusual for parties to discuss settlement while simultaneously preparing submissions and evidence, and in the circumstances of this matter such discussions occurred for no more than three days of the two-week period for the Applicant to prepare her submissions and evidence.
I reject the Applicant’s submission that as the time for compliance with the 8 June Direction was extended with the consent of the Respondent, it was not open to the Respondent to complain about noncompliance. The 8 June 2022 Directions only needed to be varied because the Applicant had failed to comply and failed to communicate with either the Respondent or the Commission. The Respondent consenting to the Amended Directions was an appropriate attempt to get the proceeding ready for hearing, and in no way precluded the Respondent relying on such non-compliance in an application such as this s.399A Application.
(ii) Second Instance of Non-Compliance
I note that the Applicant raised their anticipated non-compliance prior to the expiry of the timeframe for compliance, albeit by 3 minutes. That does place it in contrast to the First Non-Compliance. Were the Applicant to have again failed to have communicated with the Respondent and the Commission and had to be “chased up” by the Commission, the result of this s.399A Application may have been different.
The Respondent’s criticisms that the Applicant should have prioritised the finalisation of her statement ahead of and/or around other meetings or appointments stemming from her new employment carry some substance. The evidence establishes that the Applicant has, unusually in a matter where reinstatement is sought, clearly prioritised attending to her new employment rather than addressing the pursuit of the Application. That lack of due attention to the pursuit of the Application has constituted an unwillingness to have the matter ready for trial within an acceptable period of time.
(b) Should the Applicant’s Unfair Dismissal Application be Dismissed
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.
The history of this matter, however, discloses a refusal by the Applicant to follow directions of this Commission, and a lack of attention to the pursuit of the Application disclosing an unwillingness to have the matter ready for trial within an acceptable period of time.
The fact that the Applicant made an attempt to comply with the Amended Directions, does not simply result in the Amended Directions being enlivened. The Amended Directions relating to the hearing of the Applicant’s unfair dismissal proceedings were vacated and replaced with directions relating to the s.399A Application. The status of this matter is that it is the s. 399A Application is before the Commission.
The Commission is not required to ensure that an Applicant takes advantage of the opportunities presented by directions issued. As Deane J said in Sullivan v Department of Transport[7]:
“. . . 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.”
Justice Kirby made an observation to similar effect in Allesch v Maunez[8] 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.”
Notwithstanding the failures of the Applicant identified above, I note that the starting point of any consideration of a s.399A Application is that an Applicant is entitled to have his or her case heard, and only in extreme circumstances should a party be shut out from litigating an issue which is fairly arguable.
I note that case management of the unfair dismissal applications seeks 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. While I have accepted that there has been non-compliance with the 8 June Directions, and an indication of an unwillingness on the Applicant’s part to have the matter ready for trial within an acceptable period of time, I do not consider, in the circumstances of this matter, that those factors outweigh the Applicants entitlement to be heard.
Conclusion
For the reasons outlined above, I have decided to dismiss the s.399A Application of the Respondent. Further directions programming the hearing of the substantive matter will issue from my Chambers.
DEPUTY PRESIDENT
[1] Allen v AAFCANS[2013] FWC 9209, at [42].
[2] Thomas v Highway NN Pty Limited[2020] FWC 3911 at [15].
[3] Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161-163].
[4] [2018] FWC 1583, at [24]; See also Ingui v MSS Security Pty Ltd[2018] FWC 2201, decision of Masson DP.
[5] Print PR956665, 21 March 2005, Giudice J, Hamilton DP and Larkin C.
[6] [2013] FWCFB 2532, at [39].
[7] (1978) 20 ALR 323 at 343.
[8] (2000) 203 CLR 172. at [35], [38]-[40].
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