Ms Yaping (Amy) Yang v Graham Cohen, Body Corporate for Glades Easthill South Community Titles Scheme 30074, Sunrise Creek Pty Ltd T/A Glades Easthill Residences
[2023] FWCFB 72
•14 APRIL 2023
| [2023] FWCFB 72 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Ms Yaping (Amy) Yang
v
Graham Cohen, Body Corporate For Glades Easthill South Community Titles Scheme 30074, Sunrise Creek Pty Ltd T/A Glades Easthill Residences
(C2022/8127)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 14 APRIL 2023 |
Appeal against decision [2022] FWC 3075 of Commissioner Spencer at Brisbane on 18 November 2022 in matter SO2022/306 – permission to appeal refused.
Ms Yaping (Amy) Yang seeks permission to appeal and if granted, appeals a decision[1] of Commissioner Spencer dated 18 November 2022.
Pursuant to s 587(3)(a) of the Fair Work Act 2009 (Cth) (Act), the Commissioner dismissed Ms Yang’s application under s 789FC for an order to stop bullying. Ms Yang contends that the decision was attended by appealable error and that it would be in the public interest for permission to appeal to be granted.
For the reasons that follow, we are not satisfied that it would be in the public interest to grant permission to appeal. Permission to appeal is therefore refused.
Background
Ms Yang lodged with the Commission a Form F72 application for an order to stop bullying on 27 June 2022. The bullying application identified Mr Graham Cohen as the person named,[2] the Body Corporate for Glades Easthill South Community Titles Scheme 30074 (Body Corporate) as the employer or principal of Mr Cohen,[3] and Sunrise Creek Pty Ltd (Sunrise Creek) as Ms Yang’s employer or principal.[4] Each of these parties were identified as respondents to the bullying application.
The circumstances pertaining at the time the application was made were as follows. Sunrise Creek holds a contract with the second respondent, being a residential body corporate, to provide caretaking services. Mr Cohen is the chairman of the Body Corporate. Ms Yang’s husband was the director of Sunrise Creek and Ms Yang identified herself as the nominee and employee of Sunrise Creek and, in her role, performed caretaking services for the Body Corporate.
Ms Yang alleges that she has experienced bullying by Mr Cohen in the performance of her caretaking duties. The relevant bullying conduct was said to include unreasonable requests associated with the cleaning of swimming pools in the complex, “financial bullying” by reason of delayed reimbursement of funds or payment of invoices, the allocation of an unreasonably excessive workload in violation of the caretaking agreement, the making of untruthful or negative comments about Ms Yang and her husband, and an attempt to terminate the caretaking agreement between the Body Corporate and Sunrise Creek.[5]
Following the lodgement of the bullying application on 27 June 2022, a response to the application was filed by Sunrise Creek on 5 July 2022. The response was lodged by Ms Yang and confirmed the company’s position as Ms Yang’s employer or principal. On 7 July 2022, the Body Corporate filed a response to the bullying application by way of its legal representatives, Matthews Hunt Legal. The Body Corporate denied the allegations of bullying and explained that Mr Cohen is a resident in the Body Corporate and volunteers as its elected chairperson. The Body Corporate made a jurisdictional objection to the application, that Ms Yang did not meet the definition of a “worker” and that the alleged bullying was reasonable management action by Mr Cohen on behalf of the Body Corporate.
The application was subsequently allocated to the Commissioner and shortly thereafter a notice of listing was issued for a conference on 25 July 2022 to deal with the matters raised in the bullying application. The notice of listing was issued to Ms Yang, a (since departed) contact person for the Body Corporate, Mr Cohen, and Matthews Hunt Legal.
On 22 July 2022, Matthews Hunt Legal filed a Form F53 Notice that a person (a) has a lawyer or paid agent; or (b) will seek permission for lawyer or paid agent to participate in a conference or hearing on behalf of the Body Corporate. Matthews Hunt Legal sought permission to represent the Body Corporate at the conference on the basis that the Body Corporate comprises of non-legally trained volunteers. Ms Yang’s responsive views were invited and, in accordance with the directions, Ms Yang filed submissions at 4.23pm on 22 July 2022. In her submissions, Ms Yang objected to the Body Corporate being granted legal representation on the basis that, inter alia, the Body Corporate did not seek authority and permission from the owners of the complex, of which Ms Yang is one, to represent the Body Corporate and “[t]he Body Corp committee directly attending all conferences and hearings in this matter will better serve the interests of justice and more efficiently in the matter.”
At 4:25pm on 22 July 2022, the Commissioner’s chambers responded to the parties by email. The correspondence advised of the Commissioner’s decision that the application “for the Respondent” to be represented was received late and that given the timing, the Commissioner would grant representation at the conciliation conference the following business day on an interim basis only. The email advised that “a formal grant of permission to appear will be held in abeyance until after the initial conference” (representation decision).
By email shortly thereafter on 22 July 2022, Ms Yang objected to the representation decision and enquired whether the first respondent would be in attendance at the conference. Ms Yang was advised by email that Mr Cohen would be attending, and that the Commissioner would ensure a fair process.
It is apparent from the correspondence that followed that Ms Yang held residual concerns about the representation decision. The matters raised by Ms Yang led to the Commissioner’s chambers cancelling the conference on 25 July 2022 and, in the days that followed, seeking clarification from Ms Yang as to whether her correspondence amounted to a recusal application. Ultimately, having regard to Ms Yang’s position, directions were issued on 9 August 2022 for a recusal hearing.
Between 9 August to early October 2022, Ms Yang repeatedly sought that the recusal application be held in abeyance to enable her to seek legal advice. Ms Yang’s emails demonstrated an ongoing concern with the representation decision, which Ms Yang considered that she was being “forced to accept.” Despite the Commissioner’s efforts to arrange an appointment for Ms Yang to obtain free legal advice with the Commission’s Workplace Advisory Service, Ms Yang refused to engage and advised that she would not be forced to choose the legal advice assigned by the Commission.
On 5 October 2022, the Commissioner’s chambers issued fresh directions for the determination of Ms Yang’s recusal application. However, on 21 October 2022, Ms Yang advised the Commission that she had not in fact made a recusal application and rather, she sought an order for the first respondent to stop bullying. Ms Yang indicated that she had been confused about the identity of the respondents and sought clarification as to who the respondents to her application are and the identification of their legal representative. The Commissioner’s chambers re-sent to Ms Yang its correspondence from 2 August 2022 which confirmed with Ms Yang, amongst other things the following matters:
“Legal representation was only granted on an interim basis (as per the correspondence) subject to the preliminary conference proceedings. That is, the Commissioner recognised your alleged concerns (raised at the end of your Application) about the ‘Chairman’ (Mr Graham Cohen/Named Person).
Those concerns did not specifically request that the Chairman not attend the conference. However, the Commissioner took into account the impact of the matters on you as set out. In addition, those matters that you were seeking to remedy as a result of lodging the Application were reviewed…
Having relevant discussions to resolve these matters requires responses and instructions from you and the Chairman (given his involvement in all of these issues per the details in your Application).
Therefore, having a legal representative present at the conference for the Respondent, in particular to the Chairman, would mean that this nominated person (Mr Cohen) would not be speaking directly with you. The lawyer would need to be responsive to those discussions at the conference rather than Mr Cohen engaging directly with you.
The Commissioner considers therefore any potential conduct at the phone conference could be suitably managed by her, and with the presence of a representative presenting on behalf of the Respondent. As set out to you, it is the Commissioner’s role to provide a fair process between the parties and to ensure that both parties are able to present their case.
The Commissioner also notes that in resolving the matters that you seek to remedy in the Application, instructions would have to be sought from the Chairman on these issues. Therefore, having the Chairman present, but communication being undertaken via his legal representative, would assist in the resolution of the matters but also in allaying your alleged concerns. (Whilst you indicate that the body corporate as the relevant party be present “for justice,” the body corporate is a legal entity and therefore it is clearer and necessary to determine prior to any conference who would be present from the body corporate to be involved in the conference)…”
A conference was listed for 28 October 2022 to deal with Ms Yang’s bullying application. The parties were directed to confirm their attendance by email to the Commissioner’s chambers. Despite being given repeated opportunities and extended deadlines to comply, Ms Yang did not confirm her attendance. Rather, Ms Yang repeated her requests for clarity as to the respondents to her application and their legal representatives. The Commission’s 2 August 2022 email was again provided to Ms Yang to address these matters. The 28 October 2022 conference was ultimately adjourned to 3 November 2022.
Between 27 October and 31 October 2022, Ms Yang sent further correspondence to the Commission regarding her requests for clarity as to the identity of the respondents, her concerns with the representation decision, and issues of purported non-compliance with the Commissioner’s directions by other parties to the application. On 31 October 2022, Matthews Hunt Legal advised the Commission and Ms Yang that it represented the Body Corporate, which would be attending the conference by way of its representatives, the first respondent Mr Cohen and Mr Ken Smith.
In a series of emails dated 1 November 2022, Ms Yang stated her understanding as follows:
“1. Peter Hunt’s client is the Body Corporate; and
2. The Body Corporate’s representatives to attend the conciliation are Mr Graham Cohen, Mr Ken Smith and Peter Hunt from Matthews Hunt Legal; and
3. Graham Cohen attending the conciliation represents the Body Corporate; and
4. Graham Cohen attending the conciliation does not represent the individual, Graham Cohen, I named in my application.In other words, the individual respondent named in my application, Graham Cohen, will not attend the conciliation.
Please advise how to resolve/discuss the bullying matter in a conciliation without the attendance of the individual respondent Graham Cohen named in my application.”
Despite repeated requests by the Commissioner’s chambers for Ms Yang to confirm her attendance at the 3 November 2022 conference, where her concerns would be discussed, Ms Yang did not confirm her attendance and the conference was adjourned to 16 November 2022. Correspondence was issued to the parties on 3 November 2022 which confirmed that attendances were required to be confirmed by 4:00pm on 4 November 2022 and chambers would not further communicate with the parties ahead of the new conference date.
When the notice of listing for the 16 November 2022 conference was issued, it listed the matter for “case management hearing (mention/directions),” before being revised, with an explanation, to “conciliation conference by telephone.” On 15 November 2022, Ms Yang sent correspondence to the Commissioner’s chambers querying, inter alia, the attendees at the conference, the fairness of the process adopted, the difference between a hearing and a conference in the Commission, whether the first respondent would attend on his own behalf or as a representative of the Body Corporate, and details of the respondents and their legal representatives. The correspondence stated that there had been a “double standard,” which was “not fair to me.”
Ms Yang did not attend the conference on 16 November 2022. The Commissioner’s chambers called Ms Yang’s telephone number three times and sent two emails about the conference, which was scheduled to proceed at 10:00am. Ms Yang did not respond to the Commission’s emails, answer the telephone calls from the Commission, or otherwise communicate with the Commission with respect to the conference.
By email dated 16 November 2022 to the parties, the Commissioner set out the steps taken to convene the conference and referred to earlier correspondence that Ms Yang’s non-attendance would lead to consideration by the Commission as to whether the bullying application should be dismissed pursuant to s 587(3)(a) of the Act. The parties were directed as follows:
“Directions for Submission
Parties are directed to confirm by 10.00 am tomorrow, Thursday 17 November 2022 whether they seek to file any submissions in relation to the dismissal of the Application. If parties seek to file such submissions, they are required to do so by 3.00 pm on Friday, 18 November 2022. If there is any difficulty meeting the Friday timeframe for submissions, parties should advise such by 10.00 am tomorrow, Thursday 17 November 2022.”
(emphasis in original)
On 16 November 2022, Matthews Hunt Legal confirmed by email that it would file submissions in accordance with the Commission’s directions and did so at 11:54am on 17 November 2022. The submissions confirmed that the first respondent Mr Cohen, together with Mr Ian Mills and Mr Smith of the Body Corporate’s committee had been in attendance in anticipation of the conference commencing on 16 November 2022 as listed. The submissions otherwise addressed the question of whether Ms Yang’s bullying application should be dismissed.
At 11:18am and 11:27am on 17 November 2022, Ms Yang sent correspondence to the Commissioner’s chambers by email in which she restated earlier concerns regarding the identification of Mr Cohen as a respondent to the application and her concerns that the “Commissioner was running a conference without the respondent Graham Cohen.” The email also noted that she had not received a response to her 15 November 2022 email.
The Commissioner’s chambers subsequently sent an email to the parties, attaching the parties’ emails discussed at [22]-[23] above, and stated as follows:
“The Commissioner is in receipt of the attached submissions from each party, and will now commence her consideration of the dismissal of this matter.”
The parties were subsequently invited to advise by 10:00am on 18 November 2022 whether they objected to the dismissal application being determined on the papers. Ms Yang did not respond to this correspondence.
The Commissioner’s decision dismissing Ms Yang’s bullying application was issued on 18 November 2022.
The decision
In the decision, the Commissioner commenced by explaining Ms Yang’s role as nominee and employee of Sunrise Creek, and the caretaking services Sunrise Creek provides to the Body Corporate. The relief sought by Ms Yang in the bullying application was set out, noting that it involved orders in respect of the conduct of Mr Cohen, and orders concerning action required by the Body Corporate.[6] A summary of the jurisdictional objections raised in the F73 employer/principal response by “the Employer” were noted.[7]
The Commissioner proceeded by summarising the procedural history of the bullying application,[8] before observing as follows:[9]
“A pattern of conduct had emerged with the Applicant where, instead of confirming attendance, she would ask the same questions already repeatedly answered. The Applicant then sent further correspondence raising the same issues that had been continuously answered in writing by Chambers and the Respondent’s representative. The Applicant did not confirm her attendance.”
The Commissioner noted that Ms Yang had been on “clear notice” that in the circumstance of her non-attendance at the conference without explanation, the bullying application would be considered for dismissal. Despite this, “[a]t the listed time of the conference, the Applicant was called three times and emailed twice. The Applicant did not answer the phone calls or the email correspondence and, accordingly, did not attend the conference, or provide any explanation for non-attendance.”[10]
After setting out s 587 of the Act, the Commissioner summarised the submissions received from Ms Yang on 17 November 2022. The Commissioner noted that Ms Yang in her submissions, “did not raise any new material. Instead, she stated that it was ‘unfair’ that she be forced to attend any conference before she was advised the details of the Respondent(s) and their legal representatives. As noted above, this was information provided to the Applicant on a number of occasions.”[11]
In her consideration of the matter, the Commissioner took into account that Ms Yang had displayed a pattern of conduct that was inconsistent with a desire to proceed with the bullying application, including by continuously raising concerns that were not relevant to the resolution of the matter, and which had been repeatedly addressed.[12]
Further, the decision stated that the Commission had made various attempts to progress Ms Yang’s bullying application for the benefit of all parties. However, Ms Yang’s continuing non-compliance with directions of the Commission and “lack of prosecution” of her bullying application resulted in significant and unnecessary delay.[13]
The Commissioner concluded that Ms Yang’s continued conduct in averting the progress of her bullying application and duplicating enquiries previously addressed “demonstrated a complete disregard to advancing the Application in any reasonable way.” The Commissioner ordered that the application be dismissed pursuant to s 587(3)(a) of the Act for want of prosecution.
Appeal grounds and submissions
Ms Yang’s appeal grounds are, in substance, that the Commissioner erred having regard to the following matters:
1. The Commissioner mistook the Body Corporate as Ms Yang’s employer.
2. The Commissioner amended the orders sought by Ms Yang in her application by replacing the name “Graham Cohen” with the words “the Chairman” in the decision.
3. The Commissioner deleted the named person, Mr Cohen, from Ms Yang’s bullying application and thereafter corresponded only with Ms Yang and the Body Corporate’s legal representative.
4. The Commissioner granted permission for Mr Cohen and the Body Corporate to be legally represented.
5. The Commissioner granted permission for Matthews Hunt Legal to represent Mr Cohen and the Body Corporate at the same time.
6. Mr Cohen did not lodge a Form F53 advising the Commission of his representation in the application.
7. The Commissioner granted legal representation on an interim basis for the conference on 25 July 2022 and no formal grant of permission was made for the Body Corporate to be legally represented thereafter.
8. The Commissioner has no power to rely upon submissions and correspondence from Matthews Hunt Legal.
9. The Commissioner forced Ms Yang to attend proceedings in the Commission without the named person, Mr Cohen, in attendance.
10. The Commissioner did not explain the reasons for the grant of legal representation on an interim basis for the conference on 25 July 2022.
11. The Commissioner granted legal representation to the Body Corporate by issuing to Matthews Hunt Legal the notice of listing before a Form F53 was filed.
12. The Commissioner allowed Mr Cohen and the Body Corporate to be represented by Matthews Hunt Legal.
13. The Commissioner did not enquire whether Ms Yang objected to attending a conciliation conference before the determination of the jurisdictional objections.
14. The Commissioner provided the parties with only two days to file and serve submissions addressing whether Ms Yang’s bullying application should be dismissed.
15. The Commissioner issued the decision 43 minutes prior to the expiration of the deadline for filing submissions addressing whether Ms Yang’s bullying application should be dismissed.
16. The Commissioner mistook Ms Yang’s “concern email” as Ms Yang’s submission in response to the question of whether the bullying application should be dismissed.
17. The Commissioner did not require the named person, Mr Cohen to attend the 16 November 2022 conference.
18. The Commissioner relied upon a decision of the Commission at [45] of the decision, which related to the failure to attend a hearing, which can be distinguished from Ms Yang’s non-attendance at a conference.
19. The Commissioner relied upon a decision of the Commission at [46] of the decision which related to the unwillingness of the applicant to participate in proceedings, which can be distinguished from Ms Yang’s conduct which involved replying to every email and call from the Commissioner (if she can).
20. The Commissioner made a decision that is contrary to the overwhelming weight of the evidence.
21. The Commissioner forced Ms Yang to attend a conference without answering Ms Yang’s questions about legal representation and without the named person in attendance.
22. The Commissioner mistook “the bullying conduct occurred in the workplace of the complex” and “mistook the Body Corporate as my employer.”
23. The bullying conduct continues to create risk to health and safety as Mr Cohen will confer with Ms Yang about caretaking duty.
Ms Yang submitted that permission to appeal should be granted because the application was not run fairly, the decision contains procedural errors, errors of law and significant errors of fact, and the decision is harsh, unjust or unreasonable.
On behalf of Mr Cohen and the Body Corporate, it is submitted that permission to appeal should not be granted because the appeal does not raise any issues requiring appellate consideration, or otherwise possess any characteristics that would meet the definition of public interest under s 604(2) of the Act. Further, it is submitted that the bullying application was dismissed because Ms Yang refused to advance the matter in any meaningful way, despite being given multiple opportunities to do so.
In addition, Mr Cohen and the Body Corporate contend that of the 23 grounds of appeal, 15 do not relate to the decision under appeal. It is said that even if the appeal grounds were valid, they do not relate to and would not excuse Ms Yang’s failure to attend conferences, and nor do any of the appeal grounds demonstrate appealable error(s).
Further, it is submitted that Ms Yang no longer has relevant control of Sunrise Creek such that the appeal has no utility. On 8 February 2023, receivers and managers were appointed to Sunrise Creek, including in respect of its contract with the Body Corporate. On 21 February 2023, the day preceding the hearing in Ms Yang’s appeal, Mr Cohen and the Body Corporate sought leave pursuant to s 607(2) of the Act to file an affidavit of the Director of Matthews Hunt Legal, Mr Peter Anthony Urquhart Hunt dated 21 February 2023, together with four annexures. In support of the application to admit further evidence, it was contended as follows:
(a) The affidavit of Mr Hunt relates entirely to the appointment of receivers and managers of Sunrise Creek on 8 February 2023 and subsequent communications with the receivers and managers regarding the management and control of Sunrise Creek. As this information all post-dates the decision under appeal, it could not have been obtained at first instance.
(b) The evidence establishes that Sunrise Creek is under external administration and that the persons presently in control of Sunrise Creek have advised Ms Yang that, inter alia, “[a]s a result of the appointment of the Receivers and Managers, effective from 1:25 PM AEST 8 February 2023 you have no employment or engagement by the Company, the Business or the Receivers and Managers.” This is relevant to the utility of the appeal.
(c) The evidence consists of:
a. a current and historical ASIC search showing that on 8 February 2023 a notice of receiver and manager was lodged and processed;
b. an email from K&L Gates dated 8 February 2023 annexing the deeds of appointment for the receiver and manager and a further email dated 16 February 2023 confirming that Ms Yang is not the representative of Sunrise Creek;
c. an email and letter from the receiver and manager, Helen Newman, to Ms Yang dated 17 February 2023 confirming, inter alia, that Ms Yang’s employment with Sunrise Creek has ceased.
Mr Cohen and the Body Corporate contend that the material in Mr Hunt’s affidavit did not exist at the time of the first instance proceedings, and it is both relevant and credible such that it should be admitted by the Full Bench.
Further, the first and second respondents drew the Commission’s attention to s 428(1) of the Corporations Act 2009 (Cth) which requires Sunrise Creek to note in any public document “a statement that a receiver, or a receiver and manager, as the case requires, has been appointed.” Under s 428(3), this is an offence of strict liability. Accordingly, it is submitted that the Commission should amend the name of the third respondent to “Sunrise Creek Pty Ltd (Receivers and Managers Appointed).”
Ms Yang opposed the application by Mr Cohen and the Body Corporate to file fresh evidence in the appeal and to amend the name of Sunrise Creek. In relation to the first matter, Ms Yang submits that Mr Hunt obtained the supplementary evidence by 5:00pm on 16 February 2023 but did not file his affidavit until 21 February 2023, at the “last minute” prior to the appeal hearing on 22 February 2023. Ms Yang contends that Mr Hunt’s conduct provided the other parties to the application insufficient time to read his affidavit and respond to it.[14] In relation to the second matter, Ms Yang submits, in summary, that Sunrise Creek remains under Ms Yang’s control and accordingly, its name should not be amended in the manner sought.[15]
Admission of fresh evidence on appeal and name of third respondent
Section 607(2) of the Act provides that the Commission may admit further evidence or take into account any other information or material in an appeal. Relevant material that comes to light subsequent to the time of an initial hearing may be admitted if it bears upon an issue that requires determination in an appeal.[16]
The well-settled principles governing the discretion to admit new evidence or consider further material on appeal are set out in Akins v National Australia Bank (Akins).[17] The principles in Akins need not be strictly applied, and in an appropriate case, the Commission may depart from them. Nevertheless, we are satisfied, having regard to the following matters, that the affidavit of Mr Hunt together with its attachments should be admitted.
First, we are satisfied that the evidence could not have been obtained or adduced by Mr Cohen and the Body Corporate with reasonable diligence for use at first instance. The appointment of receivers and managers did not occur until 8 February 2023, well after the Commissioner issued the decision under appeal. Ms Yang’s concern that Mr Hunt did not act with sufficient diligence in filing the affidavit at or shortly after 5:00pm on 16 February 2023 does not bear upon this fact. In any event, as the material in Mr Hunt’s affidavit includes a document sent by the receivers and managers on 17 February 2023, there is no basis for criticising the first and second respondents for not filing the affidavit prior to this date. Further, Ms Yang’s concern that she was deprived of an opportunity to consider and respond to Mr Hunt’s affidavit is ameliorated by the two-week period granted to Ms Yang by this Full Bench to provide written submissions addressing its content. Ms Yang availed herself of this opportunity.
Second¸ we are satisfied that the evidence sought to be admitted is of a high degree of probative value. Relevantly, the material discloses that Ms Yang was advised of the following matters on 17 February 2023 by the receivers and managers (where Sunrise Creek is defined as the Company, the caretaking agreement is defined as the Business, and 176 (Lot 45)/5 Easthill Drive, Robina in Queensland is defined as the Real Property):
“As a result of the appointment of the receivers and managers, effective from 1:25PM AEST 8 February 2023 the following applies to you:…
1.You have no employment, engagement or authority in connection to the Company, the Business the Real Property or the Receivers and Managers.
2.You have no authority to act on behalf of the Company, Business or Receivers and Managers.
3.The Company Director Jing Liu has no authority to give you or any party directions, instructions or authority in respect of the Company or Business.
4.You and the Director have no powers to deal with any property, present or future rights and interests in the property and assets of the Company, including but not limited to the Business operated under the Caretaking and Letting Agreements.
5.Any role you purport to have had at any time in connection with the Company or the Business ceased immediately upon appointment of the Receivers and Managers.
6.Neither you or Jing Liu is a Nominee or an employee of the Company.
7.You are not working in the workplace of the Company or Business.
8.You have no authority to make representations or statements in connection to or on behalf of the Company, Business or Receivers and Managers.
9.You, Jing Liu or any person connected to you both, are NOT the representative of the Caretaker pursuant to Clause 13.1 of the Caretaking Agreement and clause 11 of the Letting Agreement.
10.You or any other party have no authority to deal with the Real Property and I request again that you contact me as soon as possible to discuss the Real Property…”
As is made clear by the above directions, Ms Yang no longer holds any authority to act on behalf of Sunrise Creek, including as a representative in relation to the caretaking agreement. Any role that Ms Yang had in connection with Sunrise Creek or the caretaking agreement ceased immediately upon appointment of the receivers and managers. Further, the directions confirm that Ms Yang is not performing work in relation to the caretaking agreement. These matters call into question whether there is any ongoing risk of bullying within the meaning of s 789FF(1)(b) of the Act such that Ms Yang’s appeal may be considered inutile.
Third, we are satisfied that the evidence that is sought to be adduced is credible. It is comprised of, inter alia, an ASIC company search for Sunrise Creek, correspondence from K&L Gates, solicitors for the receivers and managers, and the deed of appointment of receivers and managers to Sunrise Creek dated 8 February 2023. This material provides documentary support as to the date the receivers and managers were appointed to Sunrise Creek and the basis for the issuance of the directions to Ms Yang set out at [45] above.
Accordingly, we exercise our discretion pursuant to s 607(2) of the Act and admit the fresh evidence adduced by Mr Cohen and the Body Corporate in the appeal.
Further, we are satisfied having regard to s 428(1) of the Corporations Act 2001 (Cth) that the appointment of the receivers and managers to Sunrise Creek requires the amendment of the name of the third respondent to “Sunrise Creek Pty Ltd (Receivers and Managers Appointed).” Ms Yang’s submission that she remains in relevant control of Sunrise Creek is at odds with the evidence of Mr Hunt, including the ASIC search which demonstrates the appointment of receivers and managers. We accept the evidence of Mr Hunt and are satisfied that receivers and managers have been duly appointed. We are therefore satisfied that it is appropriate to exercise our discretion to amend the name of the third respondent to “Sunrise Creek Pty Ltd (Receivers and Managers Appointed)” and do so pursuant to s 586(a) of the Act.
Consideration
We do not consider that this is a matter in which permission to appeal must be granted
in the public interest or should be granted on discretionary grounds, for the following reasons.
First, we apprehend from the grounds of appeal and the submissions before us that Ms Yang’s primary concern lies with the representation decision. We appreciate, as accepted by the first and second respondents, that the Form F53 filed by Matthews Hunt Legal on 22 July 2022 referred only to representation for the Body Corporate (without separately identifying Mr Cohen). The representation decision did not expressly state whether permission had been granted in respect of one or both of the first and second respondents, rather that permission had been granted on an interim basis and for the purposes of the conciliation conference on 25 July 2022. Nevertheless, we accept that appeal grounds four, five, six and 12 demonstrate that Ms Yang considers that permission was granted to both the first and second respondent.
The Commission’s power to grant permission to a person to be represented by a lawyer or paid agent appears in s 596 of the Act. Section 596(2) does not limit the exercise of the discretion in favour of the grant of permission to only those persons named in a Form F53 and nor is the lodging of a Form F53 a pre-requisite to the Commission’s exercise of power under s 596. To the extent that Ms Yang, by appeal grounds four and six, challenges the representation decision on this basis, such contentions are rejected. Furthermore, no appealable error arises as a consequence of Mr Cohen and the Body Corporate being represented by the same representative and we dismiss appeal grounds five and 12.
We do not accept the contention advanced by appeal ground 11 that the Commissioner granted permission to the Body Corporate by issuing to Matthews Hunt Legal the notice of listing before a Form F53 was filed. The issuance of a listing notice to a representative does not formally grant the representative permission to appear and we reject Ms Yang’s contention otherwise.
In any event, it is apparent from the notice of listing issued in respect of the 25 July 2022 conciliation conference that such correspondence was separately provided to Mr Cohen, and his attendance at the conference and each subsequently listed conference, was confirmed. Ms Yang’s contentions that the Commissioner erred by “forcing” Ms Yang to attend proceedings in the Commission without Mr Cohen in attendance on the basis that Mr Cohen’s attendance was confirmed by Matthews Hunt Legal and not by Mr Cohen himself cannot be sustained. Ms Yang has advanced no acceptable basis for repeatedly refusing to attend a conference on the ground that the named person Mr Cohen is not the same person as Mr Cohen who represents the Body Corporate as its chairman. Furthermore, it cannot be said that the Commissioner refused to answer Ms Yang’s questions about legal representation and Mr Cohen’s attendance. To the contrary, Ms Yang was invited by the Commissioner to attend the conference so that any ongoing concerns she held in relation to these matters could be the subject of discussion. Ms Yang elected not to take advantage of the opportunity provided to her. Appeal grounds nine, 17 and 21 are therefore dismissed.
Appeal grounds seven, eight and 10 do not disclose appealable error on the part of the Commissioner and nor are they factually or legally accurate. The representation decision was made on an interim basis in respect of the first conciliation conference in Ms Yang’s bullying application. As is apparent from the chronology, the first conference was not ultimately convened because of Ms Yang’s repeated non-attendance. Absent a further decision of the Commissioner in respect of the matters at s 596 of the Act, the representation decision remained undisturbed, which wholly disposes of appeal ground seven. The reasons for granting permission were sent to the parties by email and are reproduced at [9] of the decision. The Commissioner did not err by having regard to the submissions filed by Matthews Hunt Legal in the decision, noting that permission of the Commission is not required for filing submissions pursuant to rule 12(b) of the Fair Work Commission Rules. Appeal grounds eight and 10 are therefore rejected.
Having regard to our conclusions in respect of the matters identified by appeal grounds four to 12, 17 and 21, we reject the contention that these issues justify Ms Yang’s non-attendance at the conferences convened by the Commission or demonstrate that the Commissioner erred in the decision.
Second, we reject that the Commissioner mistook the Body Corporate as Ms Yang’s employer or fell into error by amending the orders sought by Ms Yang or by removing reference to Mr Cohen from Ms Yang’s bullying application as contended by appeal grounds one, two, three and 22. It is apparent from the first sentence of [2] of the decision that the Commissioner appreciated that Ms Yang was the nominee and an employee of Sunrise Creek. The use of the word “employer” at [4] is plainly a typographical error and its use, in the circumstances described, does not demonstrate that the Commissioner misunderstood the factual scenario before her. We reject appeal grounds one and 22 on this basis. Similarly, Ms Yang’s reliance upon the references to “the chairman” in the decision instead of “Mr Cohen” are of no moment. The named person, Mr Cohen is the same person as the chairman of the Body Corporate. The contention that Mr Cohen was “deleted” from the bullying application is not made out noting that Mr Cohen is identified as the first of three respondents in the decision title, and his attendance at each listed conference was confirmed. Appeal grounds two and three are dismissed.
Any contention that the matters addressed in appeal grounds one, two, three and 22 justify Ms Yang’s non-attendance at the conferences convened by the Commission, or demonstrate appealable error, is rejected.
Third, we do not accept that the decision was issued absent giving Ms Yang an adequate opportunity to address the Commission in response to the issue of whether the bullying application should be dismissed, as contended by appeal grounds 14, 15 and 16. The parties were invited, in the 16 November 2022 email from the Commissioner’s chambers, to advise the Commissioner if “there is any difficulty meeting the Friday timeframe for submissions…” Ms Yang was invited to request additional time to respond, but did not do so. This is sufficient to dispose of appeal ground 14.
Furthermore, the Commissioner’s 16 November 2022 correspondence directed the parties to confirm by 10:00am on 17 November 2022 whether they sought to file any submissions in relation to the dismissal of the application and if so, to file those submissions by 3:00pm on 18 November 2022. At 10:17am on 18 November 2022, Ms Yang emailed the Commission, replying to an email sent by the Commissioner’s chambers setting out the attempts made by the Commission to contact Ms Yang for the conference. Shortly after, at 10:27am, Ms Yang also replied to the Commission’s 16 November 2022 email (which requested submissions responding to the dismissal of the application). Each of Ms Yang’s 10:17am and 10:27am emails appear identical to the other and state, inter alia, that:
“[r]egarding the conciliation conference at 10:00 Am Wednesday 16 November 2022, the commissioner did not inform me of the details of the respondents and their legal representatives. It is unfair that I am forced to attend…” [18]
In circumstances where Ms Yang’s email provided the above explanation for her failure to attend the conference, it was reasonable for the Commissioner to proceed on the basis that Ms Yang’s 10:17am and 10:27am emails constitute responsive submissions to the question of whether the bullying application should be dismissed.
At 11:26am on 17 November 2022, the Commissioner’s chambers emailed the parties, advising that submissions had been received from each of them, and that the Commission would commence consideration as to the dismissal of the bullying application. At 1.11pm that day, the Commissioner’s chambers clarified with the parties that the matter would be dealt with on the papers and invited a response to this issue by 10:00am the following day if there was any objection to that course. Ms Yang did not respond to the either the 11:26am or 1.11pm emails. It can thereby be taken that Ms Yang did not oppose the Commissioner’s proposed course.
We are satisfied that the Commissioner did not err by proceeding on the basis that Ms Yang’s 10:17am and 10:27am emails responded to the question of whether the bullying application should be dismissed. This is particularly so given, as earlier stated, Ms Yang’s emails provided an explanation for Ms Yang’s non-attendance. In these circumstances, the issuance of the decision prior to 3:00pm on 18 November 2022 did not deprive Ms Yang of an opportunity to address the dismissal of her bullying application. Moreover, Ms Yang elected not to engage with the Commissioner’s emails of 11:26am or 1.11pm that day which made clear the next steps that would be taken in relation to the application. We therefore reject appeal grounds 15 and 16.
Fourth, we are not persuaded by Ms Yang’s contentions at appeal grounds 18 and 19 that the Commissioner erred by referring to the decisions in Morton v Peregrine Corporation Pty Ltd Lesley Morton v Peregrine Corporation Pty Ltd T/A On The Run[19] and Kora v Cardno Staff Pty Ltd T/A Cardno[20] (Kora) in the decision. These authorities demonstrate the breadth of the application by the Commission of the discretionary power available to it under s 587. The Commissioner noted that these authorities had been advanced by the respondent and while they concern unfair dismissal applications, “the principles remain relevant to the current matter” concerning the application of s 587 of the Act. The Commissioner did not err either in making reference to the respondent’s submissions concerning these cases in the decision, or by having regard to these authorities in her consideration as to the application of s 587.
Ms Yang’s attempt to distinguish Kora on the basis that Ms Yang had demonstrated a willingness to participate in proceedings by replying to every email is not to the point. The issue confronting the Commissioner was Ms Yang’s refusal to attend a conference in respect of her bullying application, which had not progressed since its inception. As correctly noted by the Commissioner at [46] of the decision, the Commission is not required to persevere with an application in circumstances where the applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at their initiative.[21] We dismiss appeal grounds 18 and 19.
Fifth, the matter raised by appeal ground 13 involves a misunderstanding as to the determination of jurisdictional objections. The Commissioner only sought the respondent’s view as to whether it objected to attending a conciliation conference because the respondent had raised jurisdictional objections to the bullying application proceeding. No error arises on account of Ms Yang not being asked if she held objections to her own application. Appeal ground 13 is rejected, as is ground 20 which is not supported by any explanation from Ms Yang. In any event, ground 20 cannot be made out given that no evidence has been adduced in the proceeding.
Sixth, as the matters at [45] and [46] of this decision demonstrate, we do not accept that Mr Cohen will continue to confer with Ms Yang about caretaking duty as contended by appeal ground 23. This is because Ms Yang’s role in connection with Sunrise Creek and the caretaking agreement ceased on 8 February 2023 upon the appointment of the receivers and managers. Nor is Ms Yang performing work in relation to the caretaking agreement. Appeal ground 23 is therefore rejected.
Conclusion
Subsection 604(2) of the Act requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so.” The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[22] The public interest is not satisfied simply by the identification of error, or a preference for a different result.[23] In GlaxoSmithKline Australia Pty Ltd v Makin[24] a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.”[25]
Further, the exercise of the Commission’s power to dismiss an application pursuant to s 587(1) is, in any event, a discretionary decision. Accordingly, the appeal is to be considered in accordance with the principles in House v R.[26]
Having regard to the above matters, the appeal involves no legal issues of general application requiring appellate jurisdiction. Nor does the decision involve any injustice. Ms Yang had four opportunities to attend a conciliation conference in her bullying application and was advised three times that a failure to attend may lead to her bullying application being considered for dismissal. Ms Yang refused to attend, regardless.
Moreover, as the evidence of Mr Hunt demonstrates, Ms Yang no longer holds any role in connection with Sunrise Creek or the caretaking agreement. Accordingly, the grant of permission to appeal in this matter would be inutile as there is no apparent basis for a finding that there is any ongoing risk of bullying within the meaning of s 789FF(1)(b) of the Act.
Order and disposition
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
Ms Y. Yang on her own behalf
Mr S. Mackie, of counsel, for the first and second respondent
No appearance for the third respondent
Hearing details:
2023.
Melbourne by video link:
22 February
Final written submissions:
15 March 2023, for the appellant
22 March 2023, for the first and second respondent
[1] [2022] FWC 3075
[2] Appeal book 2033 at item 7
[3] Appeal book 2035 at item 8
[4] Appeal book 2032 at item 6
[5] Appeal book 2037-2042 at [12]
[6] Decision at [1]-[3]
[7] Decision at [4]
[8] Decision at [25]–[33]
[9] Decision at [34]
[10] Decision at [35]-[37]
[11] Decision at [41]
[12] Decision at [51]
[13] Decision at [53]-[54]
[14] Yaping Yang’s submissions addressing the affidavit of evidence of 21 February 2023, filed on 15 March 2023 at [1]
[15] Ibid at [2]-[6]
[16] Bokhee Becke v Edenvale Manor Aged Care[2014] FWCFB 6809 at [6]
[17] (1994) 34 NSWLR 155
[18] Appeal book 79
[19] [2011] FWA 4812
[20] [2015] FWC 4699
[21] See further Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]
[22] O’Sullivan v Farrer and another (1989) 168 CLR 210 at [216]-[217] per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal& Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78; (2011) 207 IR 177 at [44]-[46]
[23] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663 at [28]
[24] [2010] FWAFB 5343
[25] Ibid at [27]
[26] House v R (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ
Printed by authority of the Commonwealth Government Printer
<PR761081>
0
11
0