Ms Lui Cheng v Griffith University
[2021] FWC 3530
•18 JUNE 2021
| [2021] FWC 3530 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Lui Cheng
v
Griffith University
(U2018/11728)
COMMISSIONER RIORDAN | SYDNEY, 18 JUNE 2021 |
Application for an unfair dismissal remedy.
[1] On 14 November 2018, Ms Lui (Iris) Cheng (the Applicant) filed an application (the Applicant) with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act). Prior to her dismissal, the Applicant was employed by Griffith University (the Respondent).
[2] There have been significant delays in progressing the Application through the Commission’s processes, some of which is outlined in the decision of Commissioner Bissett [[2020] FWC 1672] and the decision of the Full Bench [[2020] FWCFB 5863].
BACKGROUND
[3] The Applicant commenced employment with the Respondent on 26 March 2018 as a Student Experience Officer (SEO). The Griffith University General Staff Enterprise Agreement 2012 – 2016 (the Agreement) applied to the Applicant’s employment with the Respondent. The SEO role was classified under the Agreement as a Higher Education Worker Level 4. The Applicant was employed on a continuous basis following completion of the three-month probationary period.
[4] At 5:26 pm on 25 September 2018, Mr Ken Greedy, Director of People and Wellbeing of the Respondent, sent email correspondence to the Applicant confirming the Applicant had completed her probation period:
“Iris,
As I explained to you yesterday and as you have stated in your email you have completed your probation period. Understand that completing a probation period does not mean that you get a fresh start again in regards to performance if there have been identified concerns which were yet to be satisfactorily addressed. Probation periods are used by both parties to assess the suitability for the position to which the staff member had been appointed. At any time during the probation period, either party may decide to end theemployment relationship via appropriate process as outlined in the Agreement. During the probation period if unsatisfactory performance occurs then it is to be addressed in accordance with clause 41.1 of the Agreement. At the end of the probation period there was a decision taken to confirm your appointment, in accordance with clause 41.2 of the Agreement, you will note there is no specific requirement to formally notify you in writing.
Confirmation of appointment does not negate any performance concerns that may have been identified during the probation period, if performance concerns have been identified, yet have not been fully addressed (including ensuring you have enough time to improve), although not at the time possibly considered enough to terminate employment, then these concerns will continue to be addressed with you but under clause 44 of the Agreement- Unsatisfactory Performance, which is what has happened in your case.
In looking at your claim of dispute, you have failed to established how you believe that there is a dispute as to how the interpretation, application or implementation of any provision of the Agreement has been inappropriately applied:
• By your own email you recognise your appointment was confirmed;
• Review of you performance was done prior to the end of probation period and this resulted in probation being confirmed;
• Clause 41 was correctly applied at the time; and
• You are currently under formal Unsatisfactory Performance Management in accordance with Clause 44.
As such your request to forward your misinterpretation of the Agreement to the GSCC as a "dispute" will not occur. If you do not agree with this outcome, you are able to invoke Clause 16.4.3, which states in part:
If the dispute is still not resolved through the steps above, or if either party to the dispute refuses to engage in these steps, the matter may be referred by either party to the dispute to the Fair Work Commission.
I would point out that invoking a dispute does not stop the current process that is in train in relation to unsatisfactory performance as clause 16.4.4 states that work will continue in a normal manner, so I would strongly suggest that you concentrate on getting a response into me by the due date as you have been formally advised to enable me to properly assess the recommendation of termination currently before me.”
[5] On 25 October 2018, the Applicant’s employment was terminated on the basis of poor performance. The Applicant was presented with a letter, which said:
“Dear Ms Cheng
I refer to the correspondence from the Student Linx Coordinator, Ms Kathryn Bennett, dated 19 September 2018, recommending termination of your employment as Student Experience Officer in Griffith International on the grounds of unsatisfactory performance.
I also refer to your email, dated 24 October 2018, in which you request further information in relation to Ms Bennett's recommendation and further opportunity to respond. The information you have requested has previously been provided to you along with a total of 23 working days in which to respond. On this basis, a further extension of time is not granted.
The procedures for managing unsatisfactory work performance are set out in Clause 44 of the Griffith University General Staff Enterprise Agreement 2012-2016 (The Agreement).
Specifically, Clause 44.3 provides for the delegated authority to review all documentation relating to such a recommendation including any written submission made by the staff member.
The information upon which I have carefully reviewed the matter and based my decision is as follows:
i) A formal warning of unsatisfactory performance from Ms Kathryn Bennett dated 28 August 2018
ii) Memorandum dated 19 September 2018 from Ms Kathryn Bennett recommending termination of employment due to unsatisfactory performance, along with associated supporting documentation
iii) Email from the Acting Director, Griffith International dated 20 September 2018 endorsing the recommendation of Ms Kathryn Bennett
iv) Your response dated 24 October 201
v) The position description for Student Experience Officer, Griffith International
In coming to a decision, I am required to determine;
i) whether termination is warranted, and
ii) whether the appropriate feedback, counselling and opportunity to improve performance have been given to the staff member, and
iii) whether there are any mitigating circumstances provided by the staff member which would cause me to alter my view.
Having carefully reviewed all material relating to this matter, I have determined that the recommendation of the Student Linx Coordinator is warranted and appropriate and I therefore approve the recommendation that your employment be terminated
Consequently, I am notifying you that your employment will be terminated effective immediately on the grounds of unsatisfactory performance. You will be paid 1 week in lieu of notice and any outstanding entitlements owed you.
In accordance with Clause 44.4 of the General Staff Enterprise Agreement 2012 - 2016 you may, within 5 working days of receiving this notification lodge a written request for the matter to be referred to a Committee of Review. Please notify my office should you wish to do so. An extract of this clause is attached for your information.
Action will be taken for the University to make payment of entitlements due in the next available pay period.. Please return your University membership card, access keys/swipe card, mobile phone and any other University property you may hold to the address on this letterhead.
Yours sincerely
Professor Ned Pankhurst
Senior Deputy Vice Chancellor”
[6] The Applicant disputes that she was dismissed. On 27 April 2021, the Applicant filed a Form F1 application with the Commission raising a jurisdictional objection that her three-month employment contract had ended on 25 June 2018, prior to her termination by the Respondent. The Applicant contended that it is possible that she was therefore not dismissed according to the meaning under section 386 of the Act.
[7] The matter was allocated to the Chambers of Commissioner Booth to determine the jurisdictional and substantive application. The matter was listed for conference before Commissioner Booth on 24 August 2020 and 31 August 2020, however, the matter was unable to be resolved. The matter has now been reallocated to me for consideration of the jurisdictional and substantive application.
[8] The jurisdictional application raised by the Applicant is unusual, as generally a jurisdictional objection is raised by a Respondent to a matter. The Applicant has raised the jurisdictional application against her own application, but it is evident from the correspondence on file that the Applicant does not seek to withdraw her application. The Applicant has been invited to do so on several occasions and has made clear that she seeks to have her jurisdictional application determined.
[9] The Applicant’s jurisdictional application, as expanded on below, appears to be made on the basis that because she was not dismissed, and because there was no final review of her employment during the probationary period, it is impossible to decide whether her performance was satisfactory or unsatisfactory according to the Agreement or her employment contract.
[10] I note that the Applicant’s understanding in this respect is misguided. Instead of precluding consideration of whether her performance was satisfactory or not, a successful jurisdictional objection by the Applicant that she was not employed at the time of her dismissal will mean the matter before me is at an end.
[11] On the other hand, if the jurisdiction objection is dismissed, and the substantive unfair dismissal application remains on foot, the Commission will assess as part of the unfair dismissal application whether there was satisfactory or unsatisfactory performance by the Applicant. The Respondent has put on significant material in this regard as part of the Form F3 – Employer’s Response, including detailed notes of meetings and discussions with the Applicant, proposed remedial action to be undertaken, and at least one formal warning in relation to unsatisfactory performance. This will be considered in a public decision of the Commission as part of the substantive case.
[12] This matter has been on foot for a substantial period of time, with a significant amount of correspondence and material filed in relation to various interlocutory applications and decisions. While not all material or correspondence is mentioned in this decision, all material and correspondence before the Commission has been read and considered.
[13] The matter was listed for Jurisdictional Hearing on 6 May 2021 to determine the Applicant’s jurisdictional objection. The Applicant appeared by video from China and was self-represented. The Respondent was represented by Ms Bianca Rance, Workplace Relations Consultant for the Australian Higher Education Industrial Association, who appeared by video and was assisted by Mr Ashton Welch, Senior Manager, Workplace Relations for the Respondent, who was present in the Commission.
BACKGROUND TO JURISDICTIONAL OBJECTION
[14] The Applicant was employed in the SEO role, which had a three-month probationary period. The employment contact was provided to the Applicant by Mr Ken Greedy, Director of Human Resources, on 12 March 2018. The employment contract set out her conditions of employment, in particular the details of her employment:
“EMPLOYMENT CONTRACT – GRIFFITH UNIVERSITY
PART 1 – APPOINTMENT DETAILS
Name: Iris Cheng
Position Title: Student Experience Officer
Classification: HEW4
Type of appointment: You are offered a continuing appointment made for an indefinite period subject to resignation, or the probationary, retirement, termination, change and redundancy provisions of the University.
Full time/part time: Full time
Group: Griffith International
Element: Student Experience
Location: Your primary campus will be Nathan. However, you may be required to work on either a temporary or an indefinite basis at any premises, which the University currently has or may subsequently acquire or at any premises at which it may from time to time provide services. Where a change in workplace involves additional agreed expenses, in accordance with the relocation policy and procedures, these will be met by the University.
Supervisor: Your supervisor will be the Student Linx Coordinator.
Commencement date: 26 March 2018
You should report to the Student Experience Office on your date of commencement.
Salary: $2,230.35 per fortnight or$ 58,188 per annum which is step 1 of the salary scale.
Your first salary payment will be made within three weeks of your commencement and on a fortnightly basis thereafter.
Superannuation: The University default fund is UniSuper.
The University will contribute 17% towards your superannuation.
(see standard conditions for extra information)
Probationary period: Three months.
Eligibility to work in Australia: This offer is subject to your eligibility to work in Australia. If you are a non-citizen holding a temporary visa, please provide proof of your right to work. For further information, consult the following immigration website, /Work”
(my emphasis)
[15] On 7 August 2018, subsequent to the conclusion of her probationary period, The Applicant wrote an email with the subject ‘Confidential – Enquiry – Continuous Position’ to Griffith’s Human Resources team regarding her employment. She wrote:
“Dear HR Staff,
I started in March at Griffith and this is a continuous position. I am wondering whether I need to fill in any document related to confirmation of my continuous position? How about meeting with my supervisor in order to confirm that I have secured this position?
Thank you very much.
Regards,
Iris”
[16] The Applicant sent an identical email on 16 August 2018 to Mr Wayne Beech, Senior Human Resources Adviser for the Respondent. On 21 August 2018, she wrote again to Mr Beech and said:
“Dear Wayne,
Good morning. I have started my position as a Student Experience Officer at Griffith since 26th March 2018. As it is a HEW 4 position (continuing appointment), the probation period should be 3 months (26th March 2018-25th June 2018) according to the Griffith policy.
Could you please advise whether my continuing appointment has been confirmed effective since 25th June 2018?
Thanks a lot.
Regards,
Iris”
[17] On 21 August, Mr Beech wrote back to the Applicant and said:
“Dear Iris,
Thank you for your email.
In the first instance, please liaise with your supervisor regarding the steps in your probation process as Kathryn will be able to discuss the steps with you.
Regards,
Wayne”
[18] The Applicant responded to Mr Beech on 21 August advising that she had been advised to contact HR in relation to her enquiry. She wrote:
“Hi Wayne,
Thank you for your email.
I did but was asked to contact HR. As mentioned, I have started my position as a Student Experience Officer at Griffith since 26th March 2018. As it is a HEW 4 position (continuing appointment), the probation period should be 3 months (26th March 2018-25th June 2018) according to Griffith policy. Could you please confirm if my understanding is correct?
Could you please also advise whether my continuing appointment has been confirmed effective since 25th June 2018?
Thank you.
Regards,
Iris”
[19] The Applicant sent various correspondence between 22 August 2018 and 24 August 2018 to a number of individuals employed by the Respondent, including Mr Peter Makara, Manager, Student Experience; Ms Marlo Biddle, HR Business Partner (Arts, Education and Law); and Ms Jelena Dekker, Senior HR Business Partner. In this correspondence, The Applicant continued to query whether her continuing employment had been confirmed.
[20] Over the course of the correspondence, Ms Biddle spoke to the Applicant and wrote a confirmation email to the Applicant on 23 August 2018, advising her that discussion regarding the Applicant’s performance had commenced:
“Dear Iris,
As per our recent phone conversation, your supervisor is progressing discussion concerning your performance in accordance with Clause 44 Unsatisfactory Work Performance of the General Staff Enterprise Agreement 2012-201. Your supervisor will discuss the specific details of your performance and outline where the concerns are as part of the meeting scheduled for next week and until these discussions have concluded no further action will be taken.
If you have any further questions, please call so we can discuss further.
Kind regards,
Marlo”
[21] On 24 August 2018, the Applicant received an email from Ms Jelena Dekker, Senior HR Business Partner for the Respondent. Ms Dekker wrote:
“Dear Iris,
I can confirm that you are employed in a continuing position and no longer on probation. Your period of probation lapsed on 25 June.
I am aware that concerns regarding your performance have been raised by your supervisor and that you have a meeting scheduled for next Tuesday to discuss the concerns. This meeting and discussions regarding your performance are being managed as part of the Unsatisfactory Work Performance provisions of the General Staff Enterprise Agreement 2012-2016, and is not in relation to probation. As advised by your supervisor, you have an option to bring a support person to this meeting if you wish.
If you have any questions about the process please contact me for discussion.
Kind regards,
Jelena”
[22] On 19 September 2018, the Applicant wrote back to Ms Dekker regarding her employment:
“Dear Jelena,
Thank you Jelena. This is a follow up email for the enquiry sent on 31 August 2018.
As you advised through the phone on 24 August 2018, no final review was organised during the probation period (26 March 2018-25 June 2018) by my supervisor. Could you please confirm about this?
Thank you.
Kind regards,
Iris”
[23] Ms Dekker replied on 19 September 2018 and said:
“Dear Iris,
Confirming that you are no longer on probation. Reviews of your performance are currently being undertaken due to unsatisfactory work performance. A supervisor may undertake a performance review at any time during your employment.
Kind regards,
Jelena”
[24] The Applicant appears to have continued to query both her employment status and the performance review process. On 24 September 2018, Ms Dekker wrote to The Applicant stating:
“Dear Iris,
As per our discussion, your probation ended on 25 June 2018, which by default means that your appointment is confirmed. However, as there have been ongoing concerns of your performance your supervisor has made a recommendation to terminate your employment in accordance with the Unsatisfactory Work Performance provisions. As discussed, you have an opportunity to respond in writing to the recommendation to the Director HR. If you choose to do so, your response is required by 5 October 2018.
Regards,
Jelena”
[25] As noted, the Applicant was subject to a performance review process conducted by the Respondent pursuant to Clause 44 of the Agreement. It is not necessary for this Decision to deal with this process other than to note that it was ongoing and ultimately resulted in the Respondent terminating the Applicant’s employment.
[26] As noted, at the time the Applicant was employed by the Respondent, her employment was subject to the Griffith University General Staff Enterprise Agreement 2012 – 2016. Relevant to the jurisdictional application, the Agreement sets out at clause 12.1 the meaning of continuing employment:
“12. TYPES OF EMPLOYMENT
12.1 Continuing Employment
A continuing appointment is employment with the University that is not fixed term or casual and may be subject to the successful completion of a probationary period. A continuing appointment may be made either on a full time or part time basis.”
[27] Also relevant to the jurisdictional application are the Probation Procedures and Probation Policies. In particular, the Probation Procedures For General Staff - Continuing and Fixed Term Appointments sets out the procedures for probationary reviews and decisions to confirm employment as follows:
“1. Introduction
Staff appointed to fixed-term or continuing appointments are normally required to undertake a period of probation. In accordance with the Probation Policy for General Staff Continuing and Fixed Term Appointments, confirmation of a continuing or fixed term appointment is subject to the staff member demonstrating satisfactory performance during the probationary period.
…
3.2 Probationary Reviews
There should be an ongoing dialogue between the supervisor and staff member regarding performance during the probationary period. The supervisor and staff member will meet during the probation period to review the staff member’s overall performance. This provides the opportunity to jointly review progress towards performance expectations. The probation period must include at least one probationary review plus the final review of the staff member’s overall performance. The first probationary review should occur no later than 1 month after the commencement of engagement.
…
3.7 Decision to Confirm
The supervisor should conduct the final review of the staff member’s overall performance at least two weeks prior to the end of the probationary period.
Where the supervisor is of the view that performance is satisfactory, they will recommend to the Head of Element that the staff member’s appointment be:
confirmed (continuing appointments); or
continued (fixed-term appointments).
The Head of Element will make a decision either to confirm or continue the appointment or recommend termination of appointment to the Director, Human Resources.”
SUBMISSIONS
The Applicant’s Submissions
[28] In the Applicant’s written submissions, she submitted that there was no valid contract after 25 June 2018 because the offer made by Mr Greedy on 12 March 2018 was only an offer for a 3-month probationary period. The Applicant argued that according to the Agreement and her contract of employment, a permanent contract can only be offered after several conditions are fulfilled.
[29] The Applicant submitted that according to the Respondent’s Probation Policy and Probation Procedure, one of the conditions was that the Applicant’s first 3 month performance must be reviewed as satisfactory.
[30] In support of this submission, the Applicant referred to email correspondence sent by Ms Rance to the Applicant on 7 November 2019, which read:
“Dear Ms Cheng,
I refer to your email below and to your emails to me that I received on 4 November 2019 at 2:45pm (AEDST), 4 November 2019 at 8:16pm (AEDST) and 6 November 2019 at 10:19am (AEDST).
You continue to ask various questions which I have already answered.
In short, I confirm/advise as follows:
• You are entitled to share the Complaints Review Report with (i) legal/industrial/union representatives; (ii) doctors/psychologists; or (iii) the Australian Human Rights Commission/Queensland Human Rights Commission.
• You are not entitled to share the Complaints Review Report with anyone else outside of your immediate family (spouse/de facto partner/child/parent/grandparent/grandchild/sibling).
• The University is not prepared to provide you with the name of the author of the report or the organisation they work for.
• Ms Bennett did not make a recommendation prior to the conclusion of your probationary period as to whether your employment should be confirmed or terminated.
• There was no letter that confirmed your appointment at the conclusion of your probationary period. Your appointment was therefore confirmed by default.
• You were dismissed approximately 4 months after the end of your probationary period following an unsatisfactory performance process undertaken in accordance with the Griffith University General Staff Enterprise Agreement 2012-2016.
• All forms and correspondence submitted by the University in this matter have been shared with you.
The University will not be engaging in any further correspondence with you prior to this matter being next before the Fair Work Commission.
Kind regards,
Bianca Rance”
[31] The Applicant submitted that no final review was completed by her supervisor, Ms Bennett, following first three months of probationary performance. It is the Applicant’s submission that as such, it is impossible to decide whether her performance was satisfactory or unsatisfactory according to the Agreement and Employment Contract.
[32] The Applicant further argued that it was logically impossible for any offer of permanent contract to be legally made and that having an employment relationship with the Respondent does not mean that she had an employment contract with the Respondent.
[33] The Applicant submitted that, according to common law and contract law principles, an offer must be communicated to the offeree. The Applicant submitted that the Respondent claimed that it never issued any letter to her regarding any unconditional offer of permanent contract or continuing appointment contract, and further claimed that it never issued any letter to her to inform her that her continuing appointment has been confirmed.
[34] In her written submissions, the Applicant said that regardless of whether the Commission decides that the Respondent legally and effectively confirmed her permanent contract or not, she was not informed about an unconditional offer of a permanent contract, therefore any unconditional offer (if it every actually existed) was never communicated to her and so could not be considered as a valid offer.
[35] The Applicant contended that the only person who could confirm any continuing appointment is the Head of Element, pursuant to Clause 41 of the Agreement and the Probation Procedures and Probation Policy. The Applicant said that there is no documentary evidence to show that the Head of Element made a decision to confirm her continuing appointment because her appointment was confirmed “by default” as her appointment was not terminated within her probationary period.
[36] In her written submissions, the Applicant stated that the effect of her employment not being terminated during her probationary period is that her employment contract would be ended on 25 June 2018. The Applicant submitted that if the Respondent was to follow the Agreement and common law principles, there must have been an offer of permanent employment made to her on or before 25 June 2018 and such an offer has never been made.
[37] The Applicant argued that as there was no letter to confirm her continuing appointment at the conclusion of her probation, the key term to be considered was “conclusion”. The Applicant advanced that there are two interpretations regarding the completion of her probationary period.
[38] The Applicant submitted that the first interpretation is that three months passed and if an employee who is subject to the probationary period is still working, he or she is deemed to be considered as completing her probationary period. The Applicant submitted that this was similar to the Respondent’s submission that her employment had been confirmed “by default”.
[39] The Applicant argued that considering the Agreement and Employment Contract as a whole, this first interpretation is ‘illegal’ and invalid. The Applicant submitted that Clause 41 of the Agreement shows that the compulsory requirements on both employers and employees during the probationary period are far more than just waiting for three months to pass.
[40] The Applicant submitted that the correct interpretation should be there were a series of scheduled legal responsibilities which must be fulfilled by both employers and employees. The Applicant argued one of the compulsory requirements is that the supervisor must organise an induction meeting, a mid-term review no later than the first month, and a final review meeting which should be held at least two weeks before the end of the probationary period. Also, there be a joint review meeting regarding an employee’s performance during the first three months. The Applicant submitted that the supervisor must also make a recommendation to confirm an employee’s permanent appointment, which the Applicant submitted meant being offered a permanent employment contract, or terminate the employee’s appointment.
[41] The Applicant submitted that in her case, as the Respondent claimed that no final review took place and no recommendation to confirm, or terminate, her appointment was made, the consequence is that the Applicant’s three month contract of employment ended on 25 June 2018. The Applicant argued that as her contract of employment ended on 25 June 2018, she could not have been dismissed after 25 June 2018.
[42] The Applicant submitted, in response to the Respondent’s claim that the offer made to her on 12 March 2018 was an unconditional permanent contract, it was in breach of the Agreement and the Contract on the following basis:
• the Applicant’s performance during her first three month period of employment was not jointly reviewed;
• there was no recommendation made to confirm her permanent contract; and
• there was no decision by the Head of Element made confirming her continuing appointment.
[43] The Applicant further submitted that the Respondent had a legal requirement to inform her of an offer of permanent contract, and it had failed to meet this legal requirement.
[44] It is the Applicant’s submission that the Respondent had likely committed fraud due to its failure to meet these requirements.
[45] The Applicant submitted that she wished to make a complaint to the Commission about this fraud, and said that it is likely to be a criminal offence to make false human resources records and provide false statements to WorkCover and the Commission.
[46] During the Hearing, I invited the Applicant on multiple occasions to provide additional submissions in relation to her argument and any new matters she has not previously submitted to the Commission. The Applicant instead chose to make commentary on other procedural aspects of the matter and proceedings, or chose to repeat her written submissions.
The Respondent’s Submissions
[47] The Respondent did not file specific submissions in relation to the jurisdictional objection by the Applicant, save for a submission by email on 15 September 2020 stating that it understood that the Applicant’s jurisdictional objection to her own application seeks to withdraw her substantive unfair dismissal and that the Respondent consented to that withdrawal.
[48] Previous submissions by the Respondent on 20 April 2020, in relation to a number of Form F52 applications filed by the Applicant, deal with the issue of whether the Applicant’s employment was confirmed and, if so, how. The context of the Respondent’s submissions is that the documentation the Applicant sought, namely an unconditional offer of continuing appointment made for an indefinite period, did not exist.
[49] The Respondent submitted that the Applicant was provided with a contract of employment for ‘continuing employment on an indefinite period’, subject to relevant University policies (see paragraph 14 above). The Respondent noted that the contract provided to the Applicant was made in accordance with Clause 5.6 of the Agreement.
[50] The Respondent submitted that there is no requirement in the Agreement for a staff member to be provided with an ‘unconditional offer of a ‘continuing appointment made for an indefinite period’ and the Applicant was not provided with one.
[51] The Respondent further submitted that Clause 41.2 of the Agreement provided:
“41.2 Decision to Confirm Appointment
The supervisor should conduct the final review of the staff member’s overall performance at least two weeks prior to the end of the probationary period. As a result of this review, the supervisor will recommend to the Head of Element to either confirm or terminate the appointment. The Head of Element will make a decision to either confirm or recommend termination of appointment to the Director, OHRM.”
[52] The Respondent argued that Clause 41.2 provides that a supervisor ‘should’ conduct a final review of the staff members performance two weeks prior to the end of the probationary period, and that ‘as a result of [that] review’ put a recommendation to the Head of Element to confirm or terminate the staff members employment. The Respondent submitted the use of the word ‘should’ in the Agreement indicates that it is not mandatory to undertake the final review, and, given that the recommendation is dependent on the completion of the aforementioned review, it is also not mandatory that the supervisor make any recommendation to the Head of Element where the review did not take place. The Respondent further submitted that it should also be noted that nothing in the clause requires any recommendation by the supervisor or decision by the Head of Element to be recorded.
[53] The Respondent submitted that it met with the Applicant regularly throughout her entire period of employment, both within the probationary period and following its completion, and raised performance concerns with the Applicant throughout the course of her employment.
CONSIDERATION
[54] There is no dispute that the employment contract on 12 March was a valid contract which was accepted by the Applicant. Similarly, there is no dispute between the parties that subsequent to 25 June 2018, the Applicant continued to perform work and receive payment for this work until she was terminated on 25 October 2018. There was clearly an employment relationship on foot.
[55] The questions for consideration are, therefore;
a) whether an employment contract remained on foot after 25 June 2018, and
b) whether the Applicant’s jurisdictional objection should be upheld.
[56] I have taken into account all of the submissions that have been provided by the parties.
DETERMINATION
[57] Mr Greedy’s correspondence of 25 September 2018 makes it crystal clear that the Respondent does not challenge that the Applicant completed her probationary period on and that she was a permanent and ongoing employee. This information has been relayed to the Applicant in a meeting with Mr Greedy on 24 September 2018 and by email from Ms Dekker (see paragraph 21 above). For the Applicant to suggest that the Respondent simply extended her probation period is contrary to the facts and a deliberate and mischievous attempt to mislead the Commission.
[58] I am also satisfied that the applicant’s employment contract is clear and specific, ie, the Applicant was offered a continuing appointment for an indefinite period subject to the normal cessation provisions of the Respondent. There was never any need or obligation upon the Respondent for a further interview or further correspondence.
[59] For the Applicant to suggest that the Respondent is guilty of fraud on the basis that she believes that the Respondent has modified her personnel record is also another baseless allegation of which there is no evidence.
[60] The Applicant was advised that if she was successful in her jurisdictional objection, then the Commission would, by legal necessity, have to dismiss her substantive application. The Applicant understood this scenario.
“MS CHENG: Thank you, Ms Lui. Thank you, Commissioner. I lodged this jurisdiction objection to my unfair dismissal case firstly because I am concerned that Griffith University has provided wrong information to Fair Work. Even though if I lost the jurisdiction objection case, which means that my unfair dismissal case may not be continued, I think fairness is more important than the benefit I may receive if I win unfair dismissal case, even though I sincerely believe that I was unfairly dismissed.” 1
[61] However, whilst the Respondent has not objected to the jurisdictional objection but simply made the submission that the Applicant is clearly not interested in pursuing her substantive claim which should be dismissed, the Commission cannot simply ignore or cancel its jurisdiction based on the misinformed or ill-advised submissions of the Applicant.
[62] The Applicant has not provided any substantive or persuasive reasons to uphold her jurisdictional objection. Leading up to the conclusion of her probationary period, the Applicant’s performance and capacity was under review. Whilst the Respondent’s process in transitioning the Applicant from a probationary employee to an on-going permanent employee could be described as sloppy, I do not accept that the Respondent has acted in a fraudulent or criminal manner.
[63] The Applicant clearly wanted her employment to continue past the probationary period. It is not unusual for an employee to pass over the probationary deadline to permanent employment without fanfare or acknowledgement from the employer. This is what occurred in this circumstance.
[64] I am also bewildered by the Applicant’s submission that her employment could not continue past the three month probationary period and therefore she could not be dismissed on 25 October 2018. This proposition is wrong at law and counter intuitive to the Applicant’s substantive application. In what can only be described as a counter-productive argument, the Applicant has made submissions as to why the Commission should not deal with her substantive application. I reject this submission.
[65] For the reasons stated above, I find that the actions of the Respondent have not created an issue that would effect the jurisdiction of the Commission to hear the substantive application of the Applicant.
[66] The Applicant’s jurisdictional objection is dismissed.
[67] I will now turn to section the 587 application made by the Respondent on 9 September 2019.
SECTION 587 APPLICATION
[68] Section 587 of the Act states:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
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.”
[69] In West v Hi-Trans Express t/as NSW Logistics Pty Ltd PR974807, Senior Deputy President Hamberger concisely summarised the terms “frivolous” and “vexatious” as follows:
“[12] The terms “frivolous” and “vexatious” are well known and referred to in Day v Victorian Railway Commissioners 2 where Dixon J stated that “a case must be very clear indeed” to justify summary dismissal and that “once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process”.
[13] In the same judgement, Dixon J also cited the following passage from the judgement of O’Connor J in Burton v Shire of Bairnsdale 3:
“Prima facie every litigant has a right to have matters of law as well as fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals and the inherent jurisdiction of the court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious will never be exercised unless the plaintiff’s claim is so obviously untenable that it cannot possibly succeed.”
[70] In Applicant v Respondent[2010] FWA 1765, McCarthy SDP, in dismissing the Applicant’s unfair dismissal application, said:
“[25] Much of the complaint and evidence of the Applicant was directed at endeavouring to discredit the SJA Report and the procedure followed by the Respondent. I find these criticisms to be unjustified.
…
[27] I found the Applicant to be unconvincing in his complaints about the process and importantly unconvincing about his denial of or response to allegations about his conduct and behaviours with other employees.
[28] I also consider that the Applicant had ample opportunity to respond to the allegations against him both in person and in writing.”
[71] The Collins English Dictionary defines vexatious to mean:-
“instituted without sufficient grounds, especially so as to cause annoyance or embarrassment to the defendant”
[72] The Collins English Dictionary defines frivolous to mean:-
• “not serious or sensible in content, attitude or behaviour”
• “unworthy of serious or sensible treatment”
[73] The Respondent made an application in accordance with section 587 of the Act for the Commission to dismiss the Applicant’s unfair dismissal application on 9 September 2019.
“From: Bianca Rance <xxx>
Sent: Monday, 9 September 2019 5:00 PM
To: UDT Rosters <xxxxxxxxx>
Cc: Lui Cheng (xxxxxxxx) < xxxxxxxx; xxxxxxxx
Subject: RE: U2018/11728 - Cheng, Lui v Griffith University
[SEC=UNCLASSIFIED]
Importance: High
Sensitivity: Confidential
Dear Mr Allen,
Thank you for your email of 6 September 2019.
The Respondent objects to the Applicant’s application for an indefinite adjournment of this matter. The Respondent also applies for the Application to be dismissed pursuant to section 587(1) of the Fair Work Act 2009 (the Act) for the reasons set out below. Those reasons also form the basis for the Respondent’s objection for an indefinite adjournment of this matter.
Application by the Respondent under section 587(1) of the Act
The Respondent applies for this matter to be dismissed under section 587(1) of the Act for the following reasons:
1. The Applicant has failed to properly prosecute her application since it was filed on 14 November 2018, nearly 10 months ago. The Applicant has already sought and obtained 4 previous adjournments of proceedings; on each occasion making the request either at the time that her submissions were due or within a 24 hour period after her submissions were due. The Respondent is still to see the Applicant’s submissions which were originally due to be filed and served on 3 January 2019. The provision of a further extension of time would run counter to the object of part 3-2 of Chapter 3 of the Act for FWC unfair dismissal claim procedures to operate in a ‘quick, flexible and informal’ manner and ‘address the needs of employers and employees’ – section 381(1)(b)(i) and (ii) of the Act.
2. As indicated in an email from yourself to the Applicant on 19 June 2019, the Applicant attended the Fair Work Commission (FWC) offices in Brisbane to observe a number of hearings while these adjournments were in place, suggesting to Deputy President Clancy that she had the capacity to prepare for her own hearing.
3. The Application has no reasonable prospects of success – section 587(1)(c) of the Act.
With respect to reason 3 above, the Respondent has filed material with the FWC, including Witness Evidence that demonstrates that:
• The Respondent provided the Applicant with support, training, and guidance in her role, and when she demonstrated she was unable to perform the inherent requirements of the role she was provided with a reasonable period of time and support to improve.
• When the Respondent saw no improvement in the Applicant’s work performance, it wrote to her to inform her of the recommendation to terminate her employment. The Applicant was provided with 23 working days to respond to the proposed termination of her employment, being the 10 days required under the applicable Enterprise Agreement and the provision of 2 extensions of time. The Applicant was also relieved of the need to perform all her regular duties so as to provide her with extra time to focus on responding to the proposed termination.
If you have any queries regarding the above, please contact me on xxxxxxxx.
Kind regards,
Bianca Rance | Workplace Relations Consultant | Australian Higher Education Industrial Association |
phone: xxxxxxxx | mobile: xxxxxxxx | fax: xxxxxxxx |
xxxxxxxx |
From: UDT Rosters < xxxxxxxx >
Sent: Friday, 6 September 2019 11:25 AM
To: Bianca Rance < xxxxxxxx >
Cc: Lui Cheng (xxxxxxxx) < xxxxxxxx >
Subject: U2018/11728 - Cheng, Lui v Griffith University [SEC=UNCLASSIFIED]
Dear Mr Rance,
I refer to the above matter.
The Applicant has requested an indefinite adjournment of the above proceedings until she is fit to proceed, based on medical grounds.
The Applicant has provided the Commission with a confidential medical report in support of the request.
Please advise of the Respondent’s views on the request.
The request will then be referred to a Member of the Commission for consideration.
Kind Regards,
James Allen
Case Manager
Unfair Dismissal Case Management Team
Fair Work Commission
Tel: 1800 269 491
[email protected]
11 Exhibition Street, Melbourne Victoria 3000
GPO Box 1994, Melbourne Victoria 3001
At the request of Commissioner Bissett, the Respondent did not pursue their application at that point in time. During the Hearing on 6 May 2021, in response to a question from the Applicant, I advised that the Respondent’s application would be dealt with in this decision. 4
[75] Even though the Applicant has been given numerous opportunities to provide submissions in relation to the Respondent’s application, I decided to give the Applicant an additional two weeks to provide any further written submissions. The Applicant failed to provide any relevant submissions in accordance with the Directions, but sought a four month extension instead.
[76] It is appropriate to outline a truncated history of the proceeding so far.
[77] Bissett C provided a detailed background of the application from lodgement to the initial hearing in relation to the Respondent’s s.587 application as set out in [2020] FWC 1672. I have repeated the relevant timeframe and information here for the benefit of the parties and those who may review this decision in the future:
“HISTORY
[8] As detailed above Ms Cheng was employed by Griffith University, her employment was terminated for unsatisfactory performance on 25 October 2018 with her application for relief from unfair dismissal being made on 14 November 2018.
[9] Ms Cheng’s application was initially listed for hearing on 14 and 15 February 2019. The directions issued required Ms Cheng to file and serve her submissions and evidence by Thursday 3 January 2019 (and the University by 31 January 2019).
[10] On 13 December 2018 Ms Cheng sought an extension to the date by which she was required to file her material.
[11] On 14 December 2018 Ms Cheng confirmed that she sought an extension and advised that she had a medical certificate to support her request. On 21 December 2018 she requested that the basis of her request for an extension (including the medical certificate) not be provided to the University. On 24 December 2018 Ms Cheng was granted an extension of time to file her materials until 17 January 2019. The hearing of the application was adjourned until 25-26 February 2019.
[12] The medical information from Ms Cheng suggested she was incapacitated until mid-January.
[13] On 16 January 2019 (at 12:21am) Ms Cheng sought a further three week extension of the date by which she was required to file her material with the Commission. She filed multiple medical certificates in support of the further extension. She requested that the medical information remain confidential. The medical certificate, as well as providing details of Ms Cheng’s condition, also indicated that she was unable to prepare documentation as required and should be given a further 3 weeks within which to do so. Ms Cheng again requested that the information in the medical certificate and email not be provided to the University. As a result of this request the hearing was adjourned until 11-15 March 2019 and Ms Cheng was required to file her material by 4 February 2019.
[14] On 31 January 2019 Ms Cheng requested information as to why she was not granted the 3 week extension sought but only 2 weeks.
[15] At the time of granting this extension Ms Cheng was offered access to the Workplace Advice Service on the recommendation of the National Practice Leader for Unfair Dismissal matters.
[16] On 1 February 2019 Ms Cheng sought a further 3 week extension of time within which to file her materials. Again she provided a medical certificate but asked that it not be provided to the University. The University was advised of the extension request and indicated it objected to the extension being granted.
[17] On 4 February 2019 Ms Cheng again emailed the Commission and requested an extension of 4 weeks within which to file her submissions. Ms Cheng attached a copy of a medical certificate which supported her request.
[18] On 6 February 2019 an email was sent to Ms Cheng and the University indicating the Deputy President Clancy had determined that the matter should be stayed until such time as Ms Cheng produces a report that advises she is medically fit to prepare for and participate in a hearing of her application.
[19] On the basis of the stay, the arrangement for the Workplace Advice Service was cancelled.
[20] On 8 February 2019 Ms Cheng sought information as to her request for a 4 week extension within which to file her materials. The decision to stay her application was explained to her by the Commission in writing on 15 February 2019.
[21] On 25 February 2019 Ms Cheng sought information as to her referral to the Workplace Advice Service. She was advised in writing that this was paused until such time as she provided medical evidence that she was fit to proceed.
[22] On 2 April 2019 Ms Cheng attended the Commission’s Brisbane Registry and observed unfair dismissal proceedings from about 10.00am until 4.30pm.
[23] On 14 May 2019 the University sought an update on the status of the application, expressing its concern about the impact of the delay.
[24] On 20 May 2019 Ms Cheng again attended the Brisbane Registry and observed a hearing from 10.00am onwards.
[25] On 21 May 2019 the matter was listed for mention by telephone on 24 May 2019 before Deputy President Clancy.
[26] On 23 May 2019 Ms Cheng again attended the Brisbane Registry to observe proceedings. The same day Ms Cheng was advised that the purpose of the mention scheduled for the following day was to discuss future conduct of the matter and it should not take long.
[27] On 23 May 2019 Ms Cheng sent an email to the Commission indicating she was not fit to participate in the telephone mention scheduled for the following day. She attached a medical certificate to her email and requested that neither the email nor the medical certificate be provided to “any third party” without her consent.
[28] On 24 May 2019 Ms Cheng again advised she could not participate in a phone mention. The mention proceeded but Ms Cheng disconnected from the call. Arising from the mention it was determined that the University would file its submissions and evidence first and Ms Cheng would be required to file her material following that date. Ms Cheng was required to file her materials by 2 July 2019. A hearing date was set from 31 July – 2 August 2019.
[29] On 27 May 2019 Ms Cheng again attended the Brisbane Registry and observed hearings from 10.00am.
[30] On 1 July 2019, following a request from Deputy President Clancy, Ms Cheng provided 7 medical certificates issued since 22 May 2019 and 2 letters from treating practitioners in support of her application for an adjournment of her matter. She again requested that this information not be provided to the University. As a result of this material the Deputy President determined that Ms Cheng should be given more time to lodge her material with the Commission. Ms Cheng was granted an extension of time to file her materials of 9 weeks until 5 September 2019.
[31] On 5 September 2019 Ms Cheng emailed the Commission and advised that she wished to apply for “an adjournment until I am fit to continue”. Ms Cheng attached a supporting letter from a treating physician but again claimed confidentiality over the material and requested it not be sent to the University.
[32] The request was notified to the University but the medical advice not disclosed. The University registered its objection and applied for the application to be dismissed pursuant to s.587(1) of the FW Act.
[33] At about this time the management of the file moved to my chambers. I granted Ms Cheng an extension of time within which to file her materials for 2 months and indicated that the matter would be listed for mention in early November 2019 to discuss further programming. Ms Cheng protested the decision and provided medical reports which she again requested be treated confidentially.
[34] The application was listed for mention before Deputy President Mansini on 6 November 2019. Prior to the mention Ms Cheng contact the Commission and sought access to “legal aid services through the Commission” – a reference to the Workplace Advice Service previously offered to her. Ms Cheng was advised by the Commission that such a service was there to assist parties in the preparation for a hearing, that the mention was to discuss timing and it was not appropriate to use the limited advice service in this way.
[35] On 4 November 2019 the parties were advised that the mention previously listed for 6 November 2019 would not proceed (it was considered unlikely that Ms Cheng would attend given her correspondence with the Deputy President’s chambers).
[36] On 15 November 2019 Ms Cheng was advised by letter that she was required to provide an updated detailed medical report to the Commission by 6 January 2020 (this being later extended to 20 January 2020 as Ms Cheng’s treating medical practitioner was not available over the Christmas break).
[37] On 22 November 2019 Ms Cheng sought advice on whether she could proceed with her application even though she had a medical report saying she was not fit to participate. Ms Cheng was advised that, given the existing medical report, she would require a report that said she was now fit to proceed.
[38] On 20 January 2020 Ms Cheng provided a further medical report that indicated she was not fit to participate in proceedings and seeking a further adjournment of her case (along with a dispute she has notified) for a further 3 months.
[39] I sought from the University a confidentiality undertaking in relation to the medical report in order to obtain its informed views on the request for a further adjournment. The University indicated that it was prepared to provide such an undertaking. Despite this Ms Cheng continued to maintain confidentiality on the medical report and that it is not released.
[40] This chronology is but a partial list of the voluminous and often repetitive correspondence between Ms Cheng and the Commission and between Ms Cheng and the University and its representatives. It also does not include a number of “complaints” made by Ms Cheng as to the handling of her matter which have been referred to the complaints unit within the Commission. Ms Cheng has been advised that her complaints are not being dealt with by me.
DIRECTIONS
[41] On 13 February 2020 I issued the following correspondence to the parties (with typographical errors corrected):
The Commissioner is in receipt of correspondence from Ms Cheng in relation to her medical condition.
In accordance with s.381 of the Fair Work Act 2009 (FW Act), the Commission is obliged to provide a fair go to all parties in considering an unfair dismissal application.
Over the period since making her application (from 14 November 2018) Ms Cheng has made multiple requests to the Commission to adjourn proceedings or grant her an extension of time based on medical certificates. For these same reasons, she has refused to participate in any mentions of the application before a Member of the Commission. Further, Ms Cheng has requested that none of the medical certificates/reports be provided to the University (Respondent). To date this has been respected by the Commission. This has, however, limited the capacity of the Respondent to properly provide its views as to any, and in particular the most recent, adjournment request.
Commissioner Bissett, National Practice Leader for Unfair Dismissal matters has given careful consideration as to what should occur next given Ms Cheng’s continuing requests to adjourn proceedings.
Given Ms Cheng’s refusal to allow the Respondent to view her medical report with the confidentiality undertakings given by the Respondent, the Commissioner considers that she should no longer take Ms Cheng’s medical certificates into account in deciding further programming of the application.
The Respondent has an outstanding application before the Commission that Ms Cheng’s application for unfair dismissal remedy should be dismissed on the grounds that it has no reasonable prospect of success (s.587 of the FW Act). At a previous request of the Commission the Respondent had not pursued that application.
However, the Commissioner is now of the view that Ms Cheng’s application has no reasonable prospects of success given Ms Cheng’s inability and/or unwillingness to engage in the process and hence failure to prosecute her case. The most recent advice from Ms Cheng is that she is unable to participate in any process for a further three months. By that time it will be 18 months since Ms Cheng’s employment was terminated. Further, the Commissioner is not confident that Ms Cheng will be fit to engage in the matter at that time given no apparent change in over more than 12 months in her ability to do so.
The following directions are therefore issued with respect to the Commissioner’s preliminary view that Ms Cheng’s application should be dismissed as it has no reasonable prospect of success given her failure to prosecute her application:
Ms Cheng is to file with the Commission and serve on the Respondent any submissions and evidence as to why the Commissioner should not dismiss your application on the grounds that it has no reasonable prospect of success because of your inability to prosecute your case due to medical issues and the inability for the Commission to continue considering your medical evidence as it has not been provided to the Respondent. Such submissions and any evidence as to why the Commissioner should not dismiss you application is to be filed with the Commission and served on the Respondent by 4.00pm Friday 28 February 2010.
Ms Cheng should note that the Commissioner will not consider any material not provided to the Respondent.
The Respondent is to file with the Commission and serve on Ms Cheng any submissions and evidence it considers appropriate in relation to the matter under consideration and in reply to the submissions and evidence of Ms Cheng by 4.00pm Friday 13 March 2020;
Ms Cheng may file with the Commission and serve on the Respondent any material in reply to that of the Respondent by 4.00pm Friday 20 March 2020.
Either party may request a hearing (which may be by telephone) in relation to the matter being considered.
No extensions will be granted to these directions.
Ms Cheng should note that if she fails to comply with these directions the Commissioner may make a decision without any further correspondence.
[42] On 25 February 2020 Ms Cheng sought to “appeal” the directions but was advised that they would stand.
[43] On 27 February 2020 Ms Cheng sought information in relation to the directions, specifically the meaning of some phrases used:
• What does the Commissioner Bissett mean by “near future”? How long is he or she referring to?
• Is Commissioner Bisset[t] sure that I will not be fit to engage in the matter after the 3-month timeframe advised by my medical professional?
• According to Fair Work Act, is there a maximum time of adjournment?
• I don’t fully understand what “dismiss my application on the grounds that it has no reasonable prospect of success” means. Do you mind providing more details?
• As mentioned, I would like to put it into the record that I am disadvantaged under this direction of asking me to provide a submission about dismissal before this Friday because:
• I don’t have a representative. I have requested to have free legal consultation before but I was told by the unfair dismissal team that no appointment will be arranged before I fully recover. And I don’t fully understand what “the dismissal on the ground of no reasonable prospect of success” means. I would like to exercise my right to seek for legal advice before I provide a submission about dismissal.
• English is not my first language.
• The confidential medical condition as mentioned in the confidential report dated on 20 Jan 2020.
[44] On 27 February 2020 Ms Cheng also made another complaint in relation to the directions issued by me. On 28 February 2020 she made a further complaint. On 28 February 2020 Ms Cheng filed her submissions in accordance with the directions. Her submissions consisted of these two complaints.
[45] The University filed its submissions in accordance with the directions.
[46] On 19 March 2020 Ms Cheng sought an extension to the requirements that she file her reply materials in accordance with the directions and provided the medical certificate of 20 January 2020 in support of this. This request was refused.
[47] An extension was subsequently granted to Ms Cheng until Monday 23 March 2020 (based on Ms Cheng’s advice that she was not in Australia) but Ms Cheng failed to file any submissions relevant to the matter by that time.
[48] On 20 March 2020 Ms Cheng also sent an email as follows:
Dear Commissioner Bissett,
Could you please have the unfair dismissal matter listed for written submission?
Due to the coronavirus situation, I am currently not in Australia. I may need to attend the hearing online or through the phone instead of in person.
Thanks,
Ms Cheng”
[78] After the decision, an appointment was arranged for the Applicant with the Workplace Advice Service (WAS).
[79] Between 30 March 2020 and 9 April 2020, there was a significant exchange of correspondence between the Chambers of Bissett C and the Applicant regarding her appointment. During this period, The Applicant also wrote to the Respondent regarding her employment contract and to the Chambers of Bissett C regarding purported breaches of the Respondent’s enterprise agreement.
[80] On 9 April 2020, the Applicant filed three Form F52 applications seeking production of particular documents relating to her employment with the Respondent. The matter was listed for mention on 15 April 2020.
[81] On 16 April 2020, The Applicant filed two further Form F52 applications seeking further documentation from the Respondent. Further exchanges of correspondence between The Applicant, the Chambers of Bissett C, and the Respondent ensued, including requests for further time for The Applicant to file responses, queries regarding a typographical error in the Respondent’s submissions, and queries regarding whether Chambers had confirmed Ms Rance’s identity when Ms Rance contacted Chambers by telephone to advise of the typographical error.
[82] On 22 April 2020, a further decision [2020] FWC 1995 was issued by Commissioner Bissett dealing with the five Form F52 applications made by the Applicant. The Applicant served the order granted in that decision on the Respondent on 23 April 2020.
[83] From 23 April to 29 April 2020, the Applicant sent further correspondence querying elements of the correspondence from the Respondent, timeframes for filing of a jurisdictional objection against her own application, and whether the matter had been listed for hearing and, if so, at what date and time.
[84] On 27 April 2020, the Applicant filed a Form F1 application objecting to her own application on the grounds that her three-month employment contract had ended on 25 June 2018, prior to her termination by the Respondent. The Applicant contended that it is possible that she was therefore not dismissed according to s.386 of the Act.
[85] On 29 April 2020, Ms Cheng filed submissions in relation to her application via email containing a link to a Google drive. The material constituted an outline of arguments and document list referring to some fifty (50) files.
[86] On 1 May 2020, the matter was allocated to Booth C for consideration of the jurisdictional and substantive application. Booth C listed the matter for conference on 9 July 2020. The Applicant advised that she was not available on that date and proposing alternative dates, which the Respondent advised were not suitable. Further correspondence ensued and the matter eventually proceeded to conference on 24 August 2020 and 31 August 2020.At each of these conferences, the Applicant had access to a certified interpreter arranged by the Commission. The conferences took place by telephone. The conferences failed to settle the matter.
[87] On 25 August 2020, the Applicant filed three more Form F52 applications and, on 2 September 2020, a further Form F52 was filed seeking documentation concerning her employment from the Respondent and more specifically confirmation of her continuing employment by the Respondent.
[88] Around this time, the Applicant began to request from the Chambers of Commissioner Booth the Certified Practitioner Number (CPN) of the interpreters who provided interpretation in the conference of 24 August 2020 and 31 August 2020. The Applicant sent correspondence firstly on 26 August 2020 and continued to pursue this request on numerous occasions by email to Chambers during the course of the matter.
[89] Commissioner Booth listed the matter for hearing in relation to the Form F52 applications. The hearing proceeded on 7 September 2020 by telephone and was recorded. The Applicant again had access to an interpreter.
[90] On 7 September 2020 at 12:05pm AEST, prior to the hearing listed to commence at 2:00pm AEST, the Applicant wrote to Chambers raising a number of concerns and requesting clarification on a number of points. The correspondence read:
“Dear Commissioner Booth Office,
Thank you for your email dated on September 4, 2020 5:10 PM(AEST) XX XXXXX XXXXX X.
1. What do you mean by “vacated”?
2. When will be the deadline for my reply regarding whether a Directions Conference is required or not?
3. Before I can make an informed decision about the need for direction conference, as mentioned in my previous email, could you please confirm if you are referring to “a Directions Conference for the jurisdiction objection lodged by the respondent(Griffith University)”, or “a Directions Conference for the dispute lodged by the applicant(Ms Cheng)”?
4. As mentioned in my email What will be discussed in the directions conference?
5. Could you please also advise the standard procedure handling a jurisdiction objection lodged by Griffith? Is a Directions Conference a standard procedure?
6. As mentioned in my 2 emails on 4 Sept 2020, I am concerned about the inconsistent direction provided by Commissioner Booth office, and whether it is appropriate for Commissioner Booth to claim that she acted as a mediator for U2018/11728 - Jurisdiction Objection on 31 Aug 2020, but gave directions for U2019/6531 -Dispute Application during a mediation for U2018/11728 - Jurisdiction Objection on 31 Aug 2020. Is it a standard practice?
Commissioner Booth office provided a written direction for U2019/6531 -Dispute Application on 2 Sept 2020 and unilaterally claimed that it was agreed by both parties while I repeatedly mentioned that the direction given by Commissioner Booth in the mediation(deadline of submission for the applicant regarding the dispute application: 11 Sept 2020) was different from the date on the written direction(7 Sept 2020).
I am concerned that Commissioner Booth may not fulfil the requirement of impartiality of mediators, therefore, the right of the applicant to be given a fair and impartial medication has been violated. Therefore, I am concerned that it may not be appropriate for Commissioner Booth to handle the U2019/6531- dispute application- jurisdiction objection and U2018/11728 – unfair dismissal Jurisdiction Objection. Please advise.
I am also concerned that directions should only be given in directions conference or other conferences with recording. Before the applicant attended the meeting on 24 Aug 2020 and 31 Aug 2020, she was informed that the meetings would be mediations. However, no independent mediator has been arranged. If Commissioner Booth will be the commissioner who hears the U2018/11728 and U2019/6531, with all due respect, the Commissioner Booth may not be eligible to be the impartial mediator for the last two meetings namely mediations as impartiality has been compromised. And Commissioner Booth has already heard what both parties mentioned in the two meetings namely mediations on 24 Aug 2020 and 31 Aug 2020. Could Fair Work Commission please assign another commissioner to handle and hear the U2018/11728 and U2019/6531?
7. Could you please advise why you did not vacate the Directions issued on 2 September 2020 for C2019/6531 – Dispute Application immediately once you have noticed the administrative error and incorrect Directions being issued? From the email on 4 Sept 2020 at 2:38pm(AEST), you mentioned “It appears there was an administrative error and incorrect Direction” but you mentioned “However, the dates remain as is at this point in time”. Could you please explain the reasons behind your advice? I am concerned that your handling of this incorrect direction is in violation of procedural fairness as it seems like you should vacate the incorrect direction first but you failed to do so. Could you please explain why? Thank you XX XXXXX X. More importantly, could you please advise why no Fair Work staff has noticed this obvious incorrect direction issued to the applicant and respondent? Should there be a Fair Work staff check and make sure that all directions are correct before issuing them to the applicant and respondent?
8. I am writing to request for a legal appointment for U2019/6531 - Cheng v Griffith University- Dispute Application- Jurisdiction Objection.
I would like to put it into record that no legal appointment has been arranged for U2019/6531 - Cheng v Griffith University- Dispute Application and/or U2019/6531 - Cheng v Griffith University- Dispute Application- Jurisdiction Objection. It is in violation of procedural fairness for Commissioner Booth to consider other attended legal appointments as legal appointments arranged for U2019/6531 - Cheng v Griffith University- Dispute Application. I would like to put it into record that U2019/6531 is a different application from U2018/11728. Therefore, separate legal appointments should be arranged for U2019/6531 - Cheng v Griffith University- Dispute Application and U2019/6531 - Cheng v Griffith University- Dispute Application- Jurisdiction Objection. Please advise.
9. I would like to put it into record that no CPN number has been provided by Commissioner Booth office regarding the interpreter who assisted on 24 Aug 2020. Please kindly advise whether your office has contacted the organization and what their reply was, including the date and time of the reply. Did they refuse to provide the CPN number?
Thanks,
Ms Cheng”
[91] Correspondence was sent to the Applicant and the Respondent at 1:46pm AEST that day advising that the correspondence would be addressed at the hearing. At the hearing, Booth C dismissed each of the applications brought by the Applicant on the transcript, and an order to that effect [PR722580] was issued. The Applicant subsequently appealed the decision on 24 October 2020.
[92] The Applicant filed submissions in relation to her own jurisdictional objection on 11 September 2020 and the Respondent filed material in reply on 15 September 2020. The matter was listed for hearing before Booth C with a Notice of Listing issued on 18 September 2020, setting the matter down for hearing at 10:00am AEST 25 September 2020 by video using the Microsoft Teams platform and requesting that the parties participate in a test on 24 September 2020.
[93] On 23 September 2020, the Applicant wrote a number of emails to Chambers requesting confirmation on a number of points and raising further concerns, including clarification of how the hearing was to proceed, whether an interpreter would be arranged, whether she would receive the CPN of that interpreter, whether she would receive the CPNs of the prior interpreters, raising concerns regarding the fairness of the hearing on 7 September 2020, and requesting a copy of the transcript of the hearing of 7 September 2020. A response was sent by Chambers that same day. Chambers also wrote to the parties providing information regarding the method for connecting to the Microsoft Teams hearing.
[94] The Applicant wrote again to Chambers at 5:25pm on 23 September 2020 raising further concerns regarding the provision of an interpreter, again seeking the CPNs of the interpreters “at least 24 hours before the actual conference and hearing”. The Applicant also raised concerns regarding Booth C’s participation in the August conferences and her further handling of the matter, and further sought an interpreter be present at the test call on 24 September 2020. A response was sent by Chambers on 24 September 2020.
[95] At 1pm AEST on 24 September, the Applicant wrote again to Chambers further agitating her concerns. Her correspondence read:
“It is likely to be unfair and unreasonable for the Commissioner Booth to advise that she will not engage in any further communication prior to the Hearing given that the applicant has the right to be given adequate information before the hearing.
I am also concerned that it is likely to be a misconduct if a Commissioner to provide false and misleading information to an applicant.
Thank you for your email on September 24, 2020 12:43 pm (Brisbane Time). Could you please urgently advise what the Commissioner meant when she mentioned that transcript will be made available and I can request for it through Chamber/associate on 7 Sept 2020? And what she meant by “transcript”? As mentioned since 7 Sept 2020, I would like to request for the transcript mentioned and promised by Commissioner Booth on 7 Sept 2020. The hearing is tomorrow, and I have been waiting for over 18 days but no transcript has been provided to me.
Please provide a response by 3pm AEST today.
Thanks,
Ms Cheng”
[96] At 2:14pm, the Applicant wrote to Chambers copying in the Respondent stating “I cannot attend the test video call today due to medical reason which is out of my control. Thanks for your understanding.” From the file it appears the Applicant did not participate in the video test.
[97] The Applicant wrote to Chambers on 24 September 2020 at 11:51pm AEST applying for a “reschedule” of the hearing listed at 10am. In her covering email to Chambers and to the Respondent, the Applicant stated:
“Dear Commissioner Booth office,
I am writing to apply for a reschedule of the hearing tomorrow(25 Sept) due to confidential medical reason(as attached).
The confidential medical certificate is attached. The content of this medical certificate must not be shared with anyone or included in any decision or transcript or any other documents.
As mentioned, I am currently only available on Fridays due to unavoidable commitment.
Thanks,”
[98] I note that the Applicant did not advise Chambers that she was feeling ill at 2:14 pm on this day but provided a doctor’s certificate by 11L51 pm after Chambers failed to respond to her query.
[99] The medical certificate provided by the Applicant indicated she had been attended by Dr Chong Nga Yee on 24 September 2020. The medical certificate indicated the Applicant was suffering from a virus like ailment and that she was recommended two days sick leave from 24 September to 25 September inclusive.
[100] At 10:28am AEST on 25 September 2020, the Respondent requested that the matter be determined on the papers on the basis that the parties had lodged written submissions and the Applicant had lodged a witness statement. the Respondent advised they did not wish to cross examine the applicant on their witness statement and submitted that the Commission had all relevant material to enable it to deal with the application on the papers.
[101] The Chambers of Booth C wrote to the parties confirming that the matter would be heard on the papers and issued amended directions at 10:54 am AEST that day for filing of material in reply by the Applicant, granting her until 29 September 2020 to file any submissions in reply to the Respondent’s material. The Applicant wrote to Chambers at 3:28pm AEST opposing the matter being determined on the papers, indicating that she wanted to appeal the ‘decision’ to have the matter determined on the papers without oral hearing. The Applicant advised she was on sick leave and should be given reasonable time to respond to the Respondent’s request for the matter to be heard on the papers. Booth C’s Chambers wrote to the parties at 3:51pm AEST noting the Applicant’s concerns and would provide a response the following Monday, 28 September 2020.
[102] On 28 September 2020 at 10:58am AEST, the Applicant wrote to Chambers querying terminology contained in the 7 September Order. Booth C wrote to the parties at 4:13pm advising the parties that the Applicant had filed a number of appeals and that the matter would be stayed pending the outcome of the appeals.
[103] On 29 September 2020, the Applicant wrote to Chambers requesting, among other things, a transcript of the 7 September hearing, confirmation that the amended directions of 25 September were vacated, and that the matter be put on hold pending the outcome of the three appeals she had lodged at that point. Chambers replied confirming the directions were vacated and the matter was to be held over pending the outcome of the appeals.
[104] On 29 October 2020, the Applicant wrote to the Chambers of Bissett C following up complaints she had made regarding the conduct of Bissett C. The Applicant exchanged in significant email correspondence with Chambers over the course of 29 and 30 October 2020, seeking information regarding who had advised she had attended the Commission on dates in 2018 and 2019, how they knew it was her, and seeking the identity of the person who identified she had attended the Brisbane office and again following up on her complaints. The Applicant was advised that the matter of the complaints was to be directed to the Commission’s complaints team.
[105] The Applicant further wrote to the Chambers of Booth C that day requesting the CPN of the interpreters who assisted on 24 August and 31 August 2020. The Applicant was forwarded correspondence from TIS National which requested confirmation in writing that the interpreter’s details would only be provided to the Commission and not to the Applicant before the interpreter’s details would be released. The Applicant replied repeating her request and forwarding further correspondence that indicated that interpreting clients could request a CPN. I note that it appears to me that the Applicant in this instance was not, in fact, an interpreting client, as the Commission arranged and paid for the use of the interpreters.
[106] The Applicant continued to write to Chambers agitating her demand for the interpreters’ CPNs and was advised on 30 October 2020 that Booth C was on leave and would respond upon her return.
THE APPEALS
[107] On 10 November 2020, a Full Bench of the Commission issued a decision [2020] FWCFB 5863, dealing with five appeals lodged by the Applicant. The appeal sets out further background regarding the Applicant’s participation in the appeal process which I repeat here:
“[1] Ms Lui Cheng has lodged five appeals against decisions or purported decisions made by Commissioner Booth in the course of dealing with Ms Cheng’s applications for an unfair dismissal remedy (U2018/11728) and for the Commission to resolve a dispute (C2019/6531) made against Griffith University. Permission to appeal is required in each appeal. Her appeals are as follows:
According to [41] of [2020] FWC 1672 issued on 30 MARCH 2020, it shows “The Respondent has an outstanding application before the Commission that Ms Cheng’s application for unfair dismissal remedy should be dismissed on the grounds that it has no reasonable prospect of success (s.587 of the FW Act). At a previous request of the Commission the Respondent had not pursued that application.”. The applicant’s understanding is that the applicant did not receive any email about the “request of the Commission” and the respondent’s withdrawal of the application to dismiss Ms Cheng’s application for unfair dismissal remedy.
1. Could Commissioner Bissett please advise when(date and time) Commissioner Bissett requested the respondent to withdraw the application to dismiss? What are the reasons behind? And how did Commissioner Bissett communicate that request with the respondent?
2. The applicant is concerned that the withdrawal by the respondent maybe legally invalid and must not be considered by Commissioner Bissett because the applicant was not included in that correspondence(if any). Please advise.
Thank you.
Regards,
Ms Cheng”
[123] On 31 March 2021, Bissett C wrote to the Applicant and advised she was no longer dealing with the matter as had been previously advised.
[124] On 31 March 2021, Booth C wrote to the parties confirming information regarding the hearing would be sent out in due course and responding to the Applicant’s concerns regarding the directions for filing of submissions:
“Dear parties,
Reference is made to the attached correspondence received from the Applicant.
The Commissioner has reviewed the information and provides the following the response.
Hearing
Further information will be sent regarding the process for the Hearing in due course. An interpreter will be provided at the Hearing for matter C2019/6351 and at the Hearing for the matter U2018/11728 to translate English to Cantonese, as well as Cantonese to English.
Submissions – U2018/11728
The Applicant has raised concerns regarding the filing of submissions. The Commissioner notes the following:
On 11 September 2020, the Applicant provided submissions.
On 15 September 2020, the Respondent provided submissions in reply.
On 26 February 2021, the Applicant was invited to provide submissions in reply by 12 March 2021.
The Commissioner notes the Applicant has not provided submissions in reply. The Commissioner will invite the Applicant to make oral submissions in response at the Hearing for matter U2018/11728."
Respondent’s email - U2018/11728
The Applicant may wish to obtain legal advice to clarify the question she raised in her email dated 30 March 2021 regarding the Respondent’s email dated 3 September 2020. The Applicant may wish to make submissions about these matters at the Hearing for matter U2018/11728.”
[125] On 1 April 2021, Booth C issued a Notice of Listing for hearing of the matter, setting a date of 10am AEST 6 May 2021. The Applicant responded on 6 April 2021 requesting a translation of the correspondence.
[126] The Applicant wrote four further emails on 6 April 2021 seeking a Chinese translation of all correspondence, following up her correspondence of 29 March 2021, seeking a copy of any ‘order’ requiring the Respondent to file submissions in reply to her written submissions, and seeking confirmation as to whether Booth C continued to apply the reasoning in paragraph [5] of the Full Bench decision.
[127] On 8 April 2021, the Applicant filed a Form F48 application seeking directions on procedure. The Applicant indicated under the reasons she was applying to the Commission for directions that “no Fair Work Commission Rules about jurisdiction objection lodged by an applicant have been found” and “no Fair Work Act about jurisdiction objection lodged by an applicant has been found.”
[128] On 14 April 2021, Booth C responded to the Applicant’s correspondence, confirming that the reasoning of the Full Bench continued to be relied upon, the jurisdictional objection filed by the Applicant would be determined first, and noting that the Form F48 had been considered and that directions were issued on 12 February 2021.
[129] On 23 April 2021, correspondence was sent from my Chambers indicating that due to an unexpected personal reason of Booth C, I would now have carriage of all the matters in the absence of Booth C. I listed the matter for in-person Hearing at 10am AEST 6 May 2021, and indicated that if the Applicant remained overseas, she would be able to attend by video. The Applicant again sought translation of this correspondence on 27 April 2021.
[130] On 27 April 2021, the Applicant wrote to chambers seeking interpretation and translation of the correspondence, a link to the hearing, and an explanation of the meaning of ‘carriage’ and confirmation of when I had taken carriage of the matter. The Applicant also sought confirmation of whether Booth C or I had reviewed the Form F48 application.
[131] On 5 May 2021, the Applicant sought a further phone number or link to join the hearing and guidance on what to do if the link did not work. The Applicant was sent a copy of the link and encouraged to contact Chambers by email if she could not join the hearing, and was sent a guide for participating in a Microsoft Teams hearing.
[132] The matter was heard on 6 May 2021. A transcript was ordered and provided to the parties on 14 May 2021. At the hearing, the Respondent confirmed that they sought for the Applicant’s application to be dismissed under s.587 of the Act.
[133] On 6 May 2021, the Applicant wrote to my Chambers copying in the Chambers of Booth C seeking clarification as to the process for hearing the Respondent’s purported application to dismiss her jurisdictional objection and ‘applying for a re-trial’ as she felt that this application should have been heard before dealing with her jurisdictional objection:
“Dear Commissioner Riordan and Commissioner Booth,
*Confidential- this email and its content are considered as my personal information and information with copyright, which should not be forwarded, shared with anyone or published in any form without my written consent*
As mentioned in the hearing today for U2018/11728, there is a severe potential violation of procedural fairness regarding the hearing today.
On 14 April 2020, Commissioner Bissett mentioned in her email that "You may make a jurisdictional objection if you chose to. You can use the Form F1. I have attached the form.".
On 27 April 2020, I followed the advice from Commissioner Bissett office and used F1 form to submit my application of jurisdiction objection.
On 1 May 2020, Commissioner Bissett confirmed the receipt of the applicant’s application. The email is attached.
I was told that the hearing today(6 May 2021) is for the jurisdiction objection lodged by the applicant(with the approval from Commissioner Bissett to confirm that the applicant has the right to lodge a jurisdiction objection).
In today’s hearing, I raised concerns about procedural fairness includes but not limited to: on 9 September 2019, the respondent(Ms Rance) lodged an application to dismiss my application of unfair dismissal case. According to the standard procedure, the hearing for the respondent’s application(to dismiss my application of unfair dismissal case) lodged on 9 September 2019 should be heard first and should be heard before handling the jurisdiction objection lodged by the applicant as the applicant lodged the jurisdiction objection on 27 April 2020. However, Commissioner Riordan refused to provide a response and refused to ask Ms Rance to provide a response to my request for clarification in my hearing today. As mentioned, I am concerned about the impartiality and code of conduct of Commissioner Riordan. It has been around 640 days but Commissioner Bissett, Commissioner Booth and Commissioner Riordan did not issue any directions regarding the respondent’s application to dismiss my application of unfair dismissal case.
As mentioned in today’s hearing, could the responsible Commissioner please kindly provide an urgent update and please also advise Ms Rance to provide an urgent update on her/his application to dismiss my application of unfair dismissal case? Does Griffith University decide to withdraw the application or continue with the application to dismiss the unfair dismissal case? The applicant has the right to be informed. It has been around 640 days since the respondent lodged the application to dismiss my application of unfair dismissal case. Please also advise which Commissioner is responsible for handling the respondent’s application to dismiss my application of unfair dismissal case.
In addition, the hearing for the respondent’s application to dismiss my unfair dismissal case(lodged on 9 September 2019) should be taken place before the jurisdiction hearing(U2018/11728) today. Therefore, for procedural fairness, I am applying for a re-trial of the jurisdiction hearing lodged by the applicant if the respondent decides to continue with the application to dismiss the unfair dismissal case.
Thank you.
Regards,
Ms Cheng”
[134] On 18 May 2021, I issued directions for filing of material in relation to the Respondent’s s.587 application in the following terms:
“Application for unfair dismissal remedy – s.587 application.
The matter is to be determined on the papers after Wednesday, 2 June 2021.
[1]The Applicant (Ms Lui Cheng) is directed to file with the Fair Work Commission, and serve on the Respondent, by Wednesday, 2 June 2021:a)Submissions and evidence in response to the Respondent’s application for the matter to be dismissed under section 587(1) of the Fair Work Act 2009 (the Act) that was filed on 9 September 2019.
[2]The Applicant must comply with these requirements. Any material filed outside the compliance date will not be considered by the Commission.[3]Any requests for an extension of time to file material must be made prior to the compliance date and being in writing and based on substantial grounds.”
[135] On 2 June 2021, the Applicant submitted extensive correspondence to my Chambers, in response to the issued Directions, raising a number of matters, including:
• seeking a four-month extension for her to file material in relation to the Respondent’s s.587 application;
• seeking a further Workplace Advice Service appointment on the grounds that the Applicant had not received a Workplace Advice Service appointment in relation to the Respondent’s application to dismiss her jurisdictional objection;
• challenging whether the Respondent did in fact file a s.587 application and requesting a hearing to determine this;
• arguing that because the Respondent had decided not to continue with the s.587 application, the Respondent could no longer continue with the application to dismiss;
• objecting to the directions issued in 18 May 2021;
• raising concerns and calling for a hearing regarding potential violations and the Fair Work Act and procedure and my conduct and potential bias;
• seeking information regarding the progress of the decision reserved at the hearing of 6 May 2021; and
• raising concerns regarding potential conflict of interest in me hearing an application for me to recuse myself from the matter.
[136] The correspondence in full reads:
“Dear Commissioner Riordan,
*Confidential- this email and its content are considered as my personal information and information with copyright, which should not be forwarded, shared with anyone or published in any form without my written consent*
Interpretation Request
1. Regarding the direction issued on 18 May 2021, could you please arrange a sight interpretation by NAATI interpreter between Cantonese and English? Thanks.
Request of Hearing and Directive Conference
Regarding the application claimed to be lodged by the respondent on 9 Sept 2019, the applicant disagrees with the “The matter is to be determined on the papers” decision. The applicant is writing to request for both a directive conference and hearing to be hold because of (1) complexity of the issues, (2) the applicant has a basic human right for an interpreter; (3) cross-examination is needed so a hearing is needed; and (4) the applicant is a not a native English speaker so a hearing can provide her a fairer opportunity to ask questions with the presence of an interpreter; (5) there are many disputes on fact, potential violation of FWA and procedural fairness which must be discussed and handled through hearing(s) with the presence of a NAATI certified interpreter between Cantonese and English.
Extension Request
Regarding Commissioner Riordan’s direction issued on 18 May 2021, I am writing to humbly request for an extension to extend the deadline on 2 June 2021 to 4 months later given the complexity, time needed for translation, seriousness of the outcome and time needed to seek for legal advice, and the following reasons which will be discussed in this email.
Regarding the seriousness of consequence, if the respondent successfully dismisses the unfair dismissal case, then the applicant no longer has a chance to proceed the unfair dismissal case so the consequence is serious and not being able to undone.
Until now, no community employment legal advice has been successfully arranged. I would like to put it into record that no Workplace Advice Service (the Service) appointment has been arranged by Workplace Advice Service under Fair Work Commission regarding the dismissal request submitted by the respondent on 9 September 2019. Please kindly and urgently advise Workplace Advice Service under Fair Work Commission to arrange a Workplace Advice Service (the Service) appointment for me. Thank you.
Seeking for legal advice is essential for accessing justice, especially the applicant is self-represented, not a lawyer, and English is not her first language. After spending a few weeks to communicate with a community legal centre, that community legal centre suddenly claimed that it received funding from Griffith University so they cannot provide legal advice to the applicant. Until now, no employment legal advice session has been successfully made. The applicant submits that the deadline of 2 June 2021 is likely to be unreasonable. Please note that from the date on which the applicant received the email from Fair Work Commission(FWC) about the direction issued on 18 May 2021 to 2 June 2021, there was only 7 working days. The applicant received this email on 21 May 2021 but it takes time to translate and understand it because English is not the applicant’s first language. The applicant is therefore only given 7 working days to find translation, legal advice and provide a written response. 7 working days are likely to be unreasonable especially the applicant is not a lawyer, is not in Australia, has been affected by COVID-19 and was just informed about the new decision regarding the respondent’s application to dismiss and deadline.
In addition, the applicant was given a deadline on 9 July 2021 about another matter Lui Cheng v Griffith University (C2019/6531), as the applicant is not a lawyer and was told by a community centre that she is not allowed to book two legal advice sessions and one legal advice session is only for one matter, the applicant is currently unable to find any employment legal advice for U2018/11728 - Cheng v Griffith University before handling Lui Cheng v Griffith University (C2019/6531). Therefore, the deadline of 2 June 2021 and 9 July 2021 are competing not only because of the time needed for preparation, but also because the applicant is not a lawyer and has no representative, no community legal advice services is currently available before 2 June 2021. The applicant is not able to afford paid legal advice services. Thanks for your understanding.
Dispute about whether the application to dismiss the unfair dismissal case on the ground of no reasonable prospect of success was lodged by the respondent on 9 Sept 2019
Could you please check and confirm if the respondent lodged the application to dismiss the unfair dismissal case on the ground of no reasonable prospect of success for U2018/11728 in a correct approved form issued by FWC? If yes, could you please send the FWC form to me? The applicant submits that the respondent did not successfully lodge any application to dismiss the unfair dismissal case on the ground of no reasonable prospect of success because the respondent did not follow the FWA, and did not follow the FW guideline, and did not complete use approved FW form needed for application of dismissing an unfair case on the ground of no reasonable prospect of success. The applicant submits that the respondent did not send any FWC form to the applicant on 9 Sept 2019, or after or before 9 Sept 2019 regarding any application to dismiss the unfair dismissal case on the ground no reasonable prospect of success. The applicant’s understanding is that an email application was not valid because according to Fair Work Act(FWA) and Fair Work(FW) guideline, a FWC form must be used. There is a potential violation of FWA and procedural fairness so I am writing to humbly request for an urgent extension, an urgent investigation, a directive conference, a hearing, and direction from the commissioner who will handle this matter. The applicant submits that it is the FWC’s responsibility to check if the correct procedure and FWA have been correctly followed.
In addition, just in case if any commissioner believes that the respondent did lodge the application to dismiss the unfair dismissal case on 9 Sept 2019 even though no FWC form was used, the applicant disagrees with this. As there is a dispute on fact, a hearing should be held firstly regarding this before any direction for written response about “the application to dismiss the unfair dismissal case on 9 Sept 2019” is given. The applicant is writing to request for a hearing about this dispute. There is a potential violation of FWA and procedural fairness so I am writing to humbly request for an urgent extension, an urgent investigation, a directive conference, a hearing, and direction from the commissioner who will handle this matter. A hearing is needed(instead of deciding on papers which violate the applicant’s opportunity to receive interpretation and violate the right of cross-examination, and the case is complex so it is not suitable to be decided on papers).
The respondent already decided not to continue with the application to dismiss, therefore, the respondent can no longer continue with the application to dismiss
If any FW commissioner finally decide that “the application to dismiss the unfair dismissal case on 9 Sept 2019” was lodged by the respondent legally and successfully even though no FWC form was used, while the applicant disagreeing with this interpretation, the applicant’s understanding would be “Griffith University has withdrawn from the application to dismiss the unfair dismissal case as it had no reasonable prospect of success”.
Regarding Commissioner Riordan’s direction issued on 18 May 2021, the applicant is very concerned that it is likely to be in violation of procedural fairness and may contradict with the decision made by Commissioner Bissett on 30 March 2020, and FWA:
According to [5] of [2020] FWC 1672 issued on 30 MARCH 2020 by Commissioner Bissett office:
“[5] The University has previously made an application that Ms Cheng’s application be dismissed as it had no reasonable prospect of success. At my request and because the application was listed for mention before Deputy President Mansini in early November 2019,the University did not pursue its application.”
According to [41] of [2020] FWC 1672 issued on 30 MARCH 2020 by Commissioner Bissett office:
“[41] The Respondent has an outstanding application before the Commission that Ms Cheng’s application for unfair dismissal remedy should be dismissed on the grounds that it has no reasonable prospect of success (s.587 of the FW Act). At a previous request of the Commission the Respondent had not pursued that application.”
In paragraphs [5] and [41], the wording “request” appears twice. It shows that Commissioner Bissett requested the respondent not to pursue the application to dismiss the applicant’s unfair dismissal case. Could you please advise why Commissioner Bissett made that request? And could you please provide an email copy when the Commissioner Bissett informed the applicant about the request? I would like to put it into record that no email copy was sent to me regarding the Commissioner Bissett’s request.
The applicant’s understanding is that “At a previous request of the Commission the Respondent had not pursued that application.”(mentioned by Commissioner Bissett in [41]) and paragraph 5 in [2020] FWC 1672 means that the respondent had not pursued, therefore , had withdrawn the application to dismiss the applicant’s application of unfair dismissal case. As the respondent decided not to pursue the application to dismiss the applicant’s application of unfair dismissal case, as confirmed in [2020] FWC 1672 issued on 30 March 2020, the respondent cannot pursue the application to dismiss the applicant’s application of unfair dismissal case now.
In addition to Commissioner Bissett’s decision, another evidence is that it has been around 664 days since the respondent claimed that they lodged the application to dismiss my application of unfair dismissal case on 9 Sept 2019. Therefore, it is likely to be reasonable to believe that Commissioner Bissett, Commissioner Booth and Commissioner Riordan did not issue any direction regarding the respondent’s application to dismiss in the last 664 days because the respondent decided not to pursue the application which means the respondent withdrew from the application to dismiss. If not, could you please advise why these three commissioners (Commissioner Bissett, Commissioner Booth and Commissioner Riordan) did not issue any direction and did not arrange any hearing regarding “the application to dismiss my application of unfair dismissal case” which was claimed to be made on 9 Sept 2019?
In addition, the hearing on 6 May 2021 was arranged by Commissioner Riordan to hear the jurisdiction objection lodged by the applicant on 27 April 2020(with the approval from Commissioner Bissett who confirmed that the applicant can lodge a jurisdiction objection against the unfair dismissal case) which was around 224 days after the respondent claimed that they lodged the application to dismiss on 9 Sept 2019. Therefore, if FWC followed the correct procedure and FWA, the application to dismiss lodged by the respondent should be handled and heard first and before handling the jurisdiction objection lodged by the applicant. Could you please explain why the hearing of jurisdiction objection was hold on 6 May 2021 for the jurisdiction objection lodged by the applicant instead of the respondent? If the respondent did not withdraw from the application to dismiss, it is likely that the three commissioners has showed bias and have not followed the standard procedure, have not followed FWA and have not provided a valid reason. Please kindly explain. It is one of the reasons to humbly request for Commissioner Riordan to excuse himself and the reasons will be discussed and explained later in this email.
Could you please confirm and ask Griffith University to clarify about the applicant’s concerns and the dispute on facts? I tried to lodge this request in the hearing on 6 May 2021 but Commissioner Riordan interrupted me and did not ask Griffith University to respond to it. It is one of the reasons to humbly request for Commissioner Riordan to excuse himself and the reasons will be discussed and explained later in this email.
Therefore, the direction issued on 18 May 2021 is likely to be inaccurate and wrong. Please kindly advise and issue a new and correct direction.
Objection towards the direction issued on 18 May 2021 and the respondent’s application to dismiss(if any)
The applicant is also making an objection and jurisdiction objection against the respondent’s application to dismiss the unfair dismissal case (on the ground of no reasonable success) which was claimed to be lodged on 9 Sept 2019. Firstly, as mentioned, the respondent did not successfully and legally lodge the application to dismiss because the respondent did not use the approved FW form and the three FWC commissioners failed to address this violation. Secondly, even though a commissioner may claim that the respondent can lodge an application to dismiss without using an approved FWC form or without using any form, according to Fair Work Act, the respondent still cannot continue with the application to dismiss after making a decision of not pursuing the application to dismiss.
As it seems like there are disputes on facts, could you please advise the respondent to provide an explanation? Please also organise a hearing about this dispute on fact, potential violation of FWA and procedure, commissioners’ potential bias and potential inappropriate handling of this matter, and objection and jurisdiction objection lodged by the applicant about the application to dismiss which was claimed to be lodged by the respondent on 9 Sept 2019.
Follow Up about any written decision for the jurisdiction hearing(U2018/11728) on 6 May 2021
Could you please urgently advise the progress of the decision for the jurisdiction hearing(U2018/11728) on 6 May 2021? No decision has been received. According to Commissioner Riordan and Commissioner Booth, the jurisdiction hearing on 6 May 2021 was handling the jurisdiction objection lodged by the applicant(under the approval by Commissioner Bissett; Commissioner Bissett’s email is attached). Could you please confirm if Commissioner Riordan has issued any written decision regarding the jurisdiction objection lodged by the applicant? Thanks. If not, when will he issue the decision? And has Commissioner Riordan decided not to issue the direction? And has Commissioner Riordan decided to adjourn the jurisdiction objection lodged by the applicant? If yes, could you please advise why? Please advise. The applicant has the right to know the progress and have the matter to be processed in a timely manner according to FWA.
Potential Bias, Potential Bullying Behaviours and Impartiality Issues of Commissioner Riordan
It is not the first time Griffith University did not follow a correct procedure and requirement in FWA(according to the applicant’s understanding) but commissioners have not handled and not corrected the respondent’s mistake properly and have put the applicant into disadvantaged. One of the examples is that(as mentioned in my email to Commissioner Riordan and Commissioner Booth on 7 May 2021; in italic as follows):
It is a potential violation of procedural fairness and is an actual or perceived conflict of interest for Commissioner Riordan to handle and make a decision on the applicant’s concern about Commissioner Riordan’s potential violation of impartiality and FWC code of conduct, and potential bullying behavours. The applicant is concerned that she/he was not treated with respect and fairly by Commissioner Riordan. As mentioned, it is also likely that Commissioner Riordan downplayed the mistake made by the respondent and importance of procedural fairness. When the applicant raised her/his concerns about no written submission provided by the respondent on 15 Sept 2020 so the direction by Commissioner Booth is false(remark: Commissioner Booth’s direction of asking the applicant to provide a response by 12 March 2021 to the respondent’s written submission on 15 Sept 2020 which does not exist), at the beginning, Commissioner Riordan repeatedly ignored the applicant’s concern and described the applicant’s concern as irrelevant. It is hard to understand why Commissioner Riordan claimed that procedural fairness is irrelevant to the hearing for U2018/11728. When the applicant requested for an email address from the Commissioner Riordan so that the applicant can send him/her the printscreen of two emails as the evidence, Commissioner Riordan did not provide a response. The applicant sent the Commissioner Booth office a printscreen of the two email titles for Commissioner Riordan. Commissioner Riordan mentioned that even the email titles from the respondent(Ms Rance) were ‘false’(email title 1: “U2019/6531…” and email title 2: “C2019/6531…”), Commissioner Riordan still claimed that the applicant should still understand that the content of the two emails as for U2018/11728.
It is likely to be unreasonable for Commissioner Riordan to downplay the respondent’s responsibility in providing a correct matter number(U2018/11728) in the email titles and importance of procedural fairness. Instead of following the correct standard procedure of Fair Work Commission(remark: the applicant’s understanding of standard procedure is that - the respondent should provide a written submission in response to the applicant’s first submission, then the applicant should be provided with reasonable time to seek for legal advice, prepare and provide a written response in response to the respondent’s written submission before the hearing date), it is likely that Commissioner Riordan mistakenly put the respondent’s responsibility on the applicant and mistakenly expected the applicant to understand the content of the two emails as for U2018/11728 when both two email titles clearly show that the two emails are for U2019/6531 and C2019/6531. The applicant submits that literal meaning of email titles should be relied on. The applicant is concerned that Commissioner Riordan may compromise his/her impartiality, may have unreasonable requests on the applicant as shown in the hearing on 6 May 2021. The applicant is now requesting for a change of commissioner for both U2018/11728 and C2019/6531.
Please refer to the whole email to Commissioner Riordan and Commissioner Booth on 7 May 2021(as attached).
You mentioned in your email on 18 May 2021 that “As stated during the Hearing on 6 May 2021, Commissioner Riordan will deal with the application made by the Respondent on 9 September 2019 for the matter to be dismissed under section 587(1) of the Act.”. The applicant would like to put it into record, according to the applicant’s understanding, Commissioner Riordan did not state that.
Could you please confirm what Commissioner Riordan said in the hearing on 6 May 2021 about the application made by the Respondent on 9 September 2019? It is an important information and the applicant has the right to know. Thanks.
This is also a follow-up email for the request to change a commissioner and complaint about Commissioner Riordan’s potential bias and violation of impartiality, and potential bullying sent on 7 May 2021. It has been over 26 days and no reply has been received from your office. Could you please advise if Commissioner Riordan made a decision on my email request on 7 May 2021(as attached)?
As mentioned in the hearing on 6 May 2021(U2018/11728) and 7 May 2021(C2019/6531) and my email(with two attachments) to you on 7 May 2021 9:53am(as attached again) and in this email, I still have a genuine concern that Commissioner Riordan might not be impartial and as a result Commissioner Riordan may not deal with the matter in a fair and balanced way for both matters(U2018/11728 and C2019/6531). Even though Commissioner Riordan asked me to state the reasons in the hearing, it is possible that he just did that as a formality to make it “look like” he gave me a chance to share but in fact, he did not. The reasons included that he interrupted me and stopped me from sharing before I finished my oral submission about the reasons behind my concerns of his bias and potential violation of impartiality, and potential bullying behaviours. In addition to the reasons and evidences as mentioned in the hearing on 6 May 2021 and 7 May 2021, and my email sent to you on 7 May 2021 9:53am(as attached again), I would also like to put it into record that on 7 May 2021, Commissioner Riordan criticised the applicant as “attempted to undermine the interpreter” when he/she was exercising his/her right as an interpreting client to clarify the interpreted messages with the interpreter. It is one of many examples which shows that Commissioner Riordan may have bias on the applicant, therefore, the applicant has requested to change a commissioner.
To avoid potential/actual conflict of interest, could Commissioner Riordan please advise who will handle the applicant’s request for changing a commissioner and the applicant’s concerns of Commissioner Riordan’s bias and impartiality issues, as well as potential bullying behaviours?
I also have concerns that if Commissioner Riordan is still handing this case, the applicant will continuously not be given fair opportunities to give oral submissions because including but not limited to Commissioner Riordan interrupted and stopped the applicant frequently, asked the applicant to be quiet in a rude and unprofessional manner when she was in the middle of sharing and/or asked for clarification from the interpreter, Commissioner Riordan rejected the request to go to toilet at the beginning, and stopped and interrupted the applicant when the applicant was in the middle of her oral submission about the reasons and evidences to show Commissioner Riordan’s bias but Commissioner Riordan did not allow the applicant to complete his/her sentences.
Please also refer to the attached email which is a part of this email.
Looking forward to hearing from you soon. Thank you for your time.
Regards,
Ms Cheng”
CONSIDERATION
[137] I have taken into account the submissions of the parties in relation to this matter. Even if an issue that was raised by the parties does not appear in the text of this Decision, it does not mean that I have not taken that submission into account.
DETERMINATION
[138] I concur with the decision of the Full Bench ([2020] FWCB 5863) in relation to the Applicant’s request for all material to be translated into Cantonese. I note the Applicant is herself a NAATI interpreter and was able to correct the Commission provided interpreter during the Hearing. I note that the Applicant only communicated in English with the Respondent throughout her employment. I also note that the Applicant required the interpreter to interpret the word “yes” during the Hearing, yet she made 100% of her submissions and provided 99% of her answers in English. I find that the Applicant has a very good and comprehensive understanding of the English language.
[139] I am not prepared to provide the Applicant with a further four months to submit submissions in relation to this application. Section 381 of the Act states:
(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.”
[140] The Applicant was dismissed on 25 October 2018. The Respondent is entitled to its statutory provided right of a “fair go”. No employer should be required to wait almost three years in order to sustain or justify its termination of an employee.
[141] The Applicant has made dozens of applications for further information, sought the recusal of each Commission member who has dealt with her matter and continuously sought the translation of every document involved in the case despite herself being a NAATI qualified interpreter.
[142] The Applicant also failed to listen to any direction from the Commission during the conduct of the proceedings. The Applicant repeatedly returned to agitate issues which had already been dealt with or were already before the Commission. I am also in no doubt that the Applicant will appeal this Decision.
[143] I agree with the judgement of O’Conner J in Burton v Shire of Bairnsdale that no application should be dismissed on the basis that it is frivolous of vexatious unless the application has no chance of success. I am satisfied and find that the Applicant has been given multiple opportunities to prosecute her case which she has deliberately failed to undertake. I find that the procrastination of the Applicant has been a deliberate attempt to delay the hearing of the substantive application.
[144] As can be seen from the history provided in this Decision (see from paragraphs [69] to [127]), the Applicant has attempted to delay the hearing of her substantive application over the last three years, even to the illogical point of lodging a jurisdictional objection to her own application. The Applicant has invented scenarios or has not accepted written notification from the Respondent in relation to her employment status in order to further frustrate the processes of the Commission. The Applicant has provided medical certificates on a regular basis in order to extend Directions in relation to the submission of materials on numerous occasions. Even when given a final opportunity to provide submissions in relation to the Respondent’s application, the Applicant submitted a submission of six and a half pages that did not deal with the Respondent’s application but simply continued to seek delays and extensions to further frustrate the Commission’s process.
[145] Whilst I am unaware of the motives of the Applicant, it is unfair on the Respondent to allow the Applicant to continue with her application. Based on the definition of the terms frivolous and vexatious provided above and as can be identified by the facts of the case and the behaviour of the Applicant, I find that the Applicant’s application is frivolous, vexatious and without any prospects of success.
CONCLUSION
[146] For reasons stated earlier, I have dismissed the jurisdictional objection of the Applicant.
[147] The application by the Respondent to dismiss the substantive application in accordance with section 587(1)(b) is upheld.
[148] The unfair dismissal application of the Applicant is dismissed.
[149] I so Order.
COMMISSIONER
Appearances:
Ms Lui Cheng on her own behalf as the Applicant
Ms Bianca Rance on behalf of the Respondent
Hearing details:
2021.
Brisbane (video hearing).
6 May.
Printed by authority of the Commonwealth Government Printer
<PR730856>
1 Transcript of Proceeding, 6 May 2021, PN 108.
2 PR974807.
3 (1908) 7 CLR 76 at 92.
4 Transcript of Proceedings, 6 May 2021, PN 20.
5 [2020] FWC 4791.
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