Neoni Banks v Commonwealth of Australia as represented by Services Australia

[2020] FWC 6716

[2020] FWC 6716

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Neoni Banks
v
Commonwealth of Australia as represented by Services Australia

(U2020/10989)

DEPUTY PRESIDENT DEAN SYDNEY, 16 DECEMBER 2020

Application for an unfair dismissal remedy – application to dismiss pursuant to s.399A – application dismissed.

[1] On 12 August 2020 Ms Neoni Banks made an application pursuant to section 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of her alleged unfair dismissal by Commonwealth of Australia as represented by Services Australia (Services Australia).

[2] This decision concerns an application made by Services Australia on 26 November 2020 under s.399A of the Act seeking the dismissal of Ms Banks’ application on the grounds that the Applicant had repeatedly failed to comply with directions of the Commission.

[3] The application was listed for hearing by telephone on 14 December 2020. Ms Vanja Bulut of Counsel and Ms Alison Spivey of Ashurst appeared with permission for Services Australia. Ms Banks did not attend and was not able to be contacted. In view of the history of this matter I considered it appropriate to proceed with the hearing in the absence of Ms Banks.

[4] Ms Spivey gave evidence and provided a witness statement in support of the s.399A application.

Background

[5] The history of the substantive application is helpfully set out in Ms Spivey’s statement:

1. On 12 August 2020, Ms Banks’ application (the Application) was filed in the Commission.

2. The Commonwealth filed an Employer Response on 26 August 2020.

3. The Application was the subject of a conciliation conference on 1 September 2020. The Application did not resolve at conciliation.

4. On 12 October 2020, Ms Banks’ legal representative advised the Commission and the Commonwealth that she no longer represented Ms Banks in relation to the Application.

5. On 13 October 2020, a Directions Hearing was convened before Deputy President Dean in relation to the Application (Directions Hearing).

6. At the Directions Hearing, Deputy President Dean informed the parties that she intended to issue directions timetabling the Application for hearing. Deputy President Dean put Ms Banks on notice that if she failed to comply with the directions issued by the Commission, the Commonwealth may bring an application for dismissal of the Application.

7. On 13 October 2020, Deputy President Dean issued a Notice of Listing that incorporated directions in relation to the Application (First Directions). The matter was listed for substantive hearing of the Application on 14 December 2020.

8. The First Directions provided for:

(a) Ms Banks to file in the Commission, and serve on the Commonwealth, an outline of submissions, witness statements and other documentary material she intended to rely on in support of the Application by no later than 4:00pm on Tuesday, 10 November 2020;

(b) the Commonwealth to file in the Commission, and serve on Ms Banks, an outline of submissions, witness statements and other documentary material it intended to rely on by no later than 4:00pm on Tuesday, 1 December 2020; and

(c) Ms Banks to file in the Commission, and serve on the Commonwealth, an outline of submissions, witness statements and other documentary material she intended to rely on in reply by no later than 4:00pm on Tuesday, 8 December 2020.

9. The First Directions also provided that:

Note:

•  The applicant and respondent must comply with these requirements.

…

•  Any request … an extension of time to file material must be made prior to the hearing/compliance date and be in writing and based on substantial grounds

10. An Information Sheet attached to the First Directions also noted the requirement for the parties to comply with directions issued by the Commission as follows:

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

11. The First Directions were sent to the email address nominated by Ms Banks in the Application.

12. On 14 October 2020, the Associate to Deputy President Dean sent an email to the parties, including Ms Banks (to her nominated email address) in the following terms:

Directions were issued yesterday in relation to this application. Please note that Directions must be complied with. If either party wishes to apply to vary the Directions, then such request must be made in writing and must provide a substantial and compelling reason(s) for the request. The Deputy President notes that any to the timetable set out in the Directions will be considered in light of s577 of the Fair Work Act, which requires that the Commission must perform its functions and exercise its powers quickly. This is particularly relevant where the applicant may seek reinstatement.

13. On 9 November 2020, Ms Banks sent an email to the chambers of Deputy President Dean noting that she would be unable to comply with the First Directions. Ms Banks stated that she was 'hoping to avoid a hearing and put forward an offer'.

14. On 10 November 2020, the Commonwealth received an email from the Associate to Deputy President Dean incorporating a copy of Ms Banks' email of 9 November 2020 and stating that the Deputy President proposed to relist the matter for further conciliation.

15. On 11 November 2020:

(a) the Commonwealth replied to the Associate to Deputy President Dean stating that, while the Commonwealth did not object to participating in a further conciliation, it requested that any settlement offer by Ms Banks be provided in writing prior to the further conciliation conference, so that the Commonwealth may consult relevant stakeholders as necessary.

(b) the Commonwealth was copied into an email to Ms Banks from the Associate to Deputy President Dean stating that:

If you wish to resolve this matter you are directed to put forward an offer (as foreshadowed in your email) by no later than 3pm this Friday 13 November 2020. It should be sent to the Respondent and our Chambers.

The conciliation conference will be listed for midday next Tuesday. If no offer is made by 3pm Friday then the conciliation conference will be cancelled and directions will be reissued so that the existing hearing date can be used for the hearing of this matter.

16. No settlement offer was received by the Commonwealth from or on behalf of Ms Banks by 3:00pm on 13 November 2020, or at all.

17. On 17 November 2020, the Respondent's legal representative sought confirmation from the Associate to Deputy President Dean as to whether the further conciliation conference would be proceeding, having not received an offer of settlement or a notice of cancellation.

18. In response, the Associate to Deputy President Dean sent an email to the parties stating:

The Deputy President notes that no offer was made by the required time on Friday 13 November, and our attempts to contact Ms Banks yesterday and today to follow up were unsuccessful. In accordance with our correspondence of 11 November below, the conciliation conference scheduled for today is now cancelled and the Deputy President issues the following directions

The Applicant (Ms Banks) is directed to file and serve on the Respondent, an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in support of the application, by no later than 4pm on Friday 20 November 2020.

…

Ms Banks, if you do not comply with the directions, and in the absence of a compelling reason for not so complying, the Deputy President may dismiss the application without further notice to you.

(Second Directions)

19. Ms Banks responded to the email from the Associate to Deputy President Dean that same day. Ms Banks stated:

Please accept my sincere apologies.

Unfortunately I just received your email due to email connectivity issues as I reside on a rural property and this occurs from time to time as do power outages which also affect associated telecommunications apps including internet and phone.

Last week I was required to attend the Family Court and several medical appointments in Sydney and therefore unable to check email etc.

Is it possible to reschedule?

20. The Associate to Deputy President Dean confirmed that the directions would not be further varied and must be complied with on the afternoon of 17 November 2020.

21. Ms Banks did not file in the Commission, or serve on the Commonwealth, any evidence or an outline of submissions from or on behalf of Ms Banks in support of the Application by 4:00pm on 20 November 2020.

22. On 23 November 2020, the Associate to Deputy President Dean sent an email to the parties referring to a conversation between Deputy President Dean's chambers and Ms Banks, in which Ms Banks again referred to the impact of her personal circumstances on her ability to comply with the directions issued by the Commission. The Commission provided Ms Banks with a further extension of time until 4:00pm on 24 November 2020 to file her evidence and an outline of submissions (Third Directions), and again advised Ms Banks that failure to comply with the direction may result in dismissal of the Application.

23. The Commonwealth has not received any evidence or an outline of submissions from or on behalf of Ms Banks in support of the Application.

24. Ms Banks has not provided the Commonwealth with an explanation for her non-compliance with the First, Second or Third Directions nor (to the best of the Commonwealth's knowledge) has any further extension of time to file material been sought from the Commission.

Submissions

[6] Counsel for Services Australia made submissions addressing the principles relevant to the consideration of s.399A applications which were summarised by Deputy President Clancy in Whittaker v Total Harvesting Pty Ltd T/A Total Harvesting 1 as follows:

1. the starting point of any consideration of an application to dismiss is that an applicant is entitled to have his or her case heard;

2. directions play an important role in case management;

3. accepting the importance of case management principles, only in extreme circumstances should a party be shut out from litigating an issue which is fairly arguable;

4. the circumstances of each case is central;

5. a history of non-compliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period of time is relevant;

6. continuing non-compliance which causes unnecessary delay, expense or prejudice to the other party is relevant. 2

[7] Counsel submitted that whilst Ms Banks is entitled to have her case heard, the legislation has imposed limits on that entitlement to ensure that the applicant and the respondent are provided with a ‘fair go all round’. These limits include giving the Commission the power to dismiss an application in circumstances where an applicant unreasonably fails to comply with directions of the Commission.

[8] It was submitted that Ms Banks acted unreasonably in failing to comply with the Directions, namely:

1. Ms Banks has had in excess of six weeks from the time that the First Directions were issued until the timeframes in the Third Directions elapsed to prepare an outline of submissions and documentary material in support of her application. This was an acceptable period of time for Ms Banks to prepare her case, even taking into consideration the personal commitments and other issues which she claimed had impacted her ability to comply with the Directions.

2. The Directions, the instructions and information accompanying those Directions were clear in their terms. Ms Banks could not have been under any misapprehension about what she was required to do and the timeframes within which her action was expected.

3. Notwithstanding the Applicant has been on notice that a failure to comply with the Directions may result in her application being dismissed, Ms Banks did not comply with the Directions, nor did she seek an extension of time in relation to the First and Second Directions until after the relevant timeframes had lapsed. She did not seek an extension of time to file material in accordance with the Third Directions.

4. Ms Banks claimed in her email of 9 November 2020 that she had been unable to comply with the Directions due to her inability to secure new legal representation. Ms Banks' legal representative notified the Commission and the Commonwealth that she was no longer representing Ms Banks on 12 October 2020. Ms Banks had ample opportunity to retain alternate legal representation and comply with the Directions. The Commission should not accept this as a reasonable explanation (in whole or in part) for Ms Banks' failure to comply with the Directions.

5. Ms Banks has not provided evidence that could satisfy the Commission that her personal commitments or health-related matters left her unable to comply with the Directions such that her failure to comply with the Directions was reasonable, including confirmation from her treating medical practitioners of her attendance at medical appointments.

6. The medical certificate Ms Banks submitted to the Commission on 9 November 2020 refers to her suffering from an unspecified medical condition and personal stress since October 2020. The medical certificate recommends that Ms Banks be provided with a one month extension to file her material in support of the Application for the purposes of obtaining alternative legal representation. It does not provide details of Ms Banks' medical condition or prognosis, or of matters that might reasonably impact on Ms Banks' ability to comply with the Directions, including any treatment or appointments that Ms Banks may be receiving or attending in respect of her medical condition.

7. In the absence of such evidence relating to her personal commitments and their impact on Ms Banks' ability to comply with the Directions, the Commission cannot be satisfied that Ms Banks' acted reasonably in failing to comply with the Directions.

8. Ms Banks also demonstrated a careless approach to compliance with the Directions and her obligations in prosecuting the Application. Her correspondence with the Commission, and specifically her email of 17 November 2020, reflects that despite there being an outstanding request to the Commission over an extension of time to file her material in support of the Application, and email being the primary method of communication in relation to the Application, Ms Banks neglected to check her emails, or to make arrangements to check her emails if access to email was not immediately available, to determine the Commission's response to that request. Accepting Ms Banks’ explanation, this carelessness resulted in her not having knowledge of the requirement to make any offer of settlement that she wished to make by 13 November 2020, or of the further conciliation conference listed on 17 November 2020.

[9] Counsel submitted that Ms Banks’ continued non-compliance with the Directions has caused unnecessary delay in the determination of the application. Specifically, there has been no indication by Ms Banks as to when she intended to file her materials. In the ongoing absence of any evidence or an outline of submissions articulating Ms Banks' case, Services Australia was unable to adequately prepare for, or respond to, whatever case is to be made against it. Further, Services Australia continues to incur costs due to Ms Banks’ non-compliance and delay.

[10] For these reasons, the Commission should exercise its discretion to dismiss Ms Banks’ application under s.399A(1)(b) of the Act.

[11] Unsurprisingly, Counsel made an oral submission that the Commission’s power to dismiss an unfair dismissal application under s.399A(1)(a) is also enlivened by reason of Ms Banks’ failure to attend the hearing.

Consideration

[12] Sections 399A of the Act provide:

399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

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

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

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[13] I am satisfied that the Respondent has provided an accurate account of events leading to the s.399A application which has been set out earlier in this decision.

[14] Having considered the evidence and submissions before me, I am satisfied and find that the provisions of s.399A(1)(a) and (b) have been met and the power to dismiss an application is enlivened.

[15] I have decided to exercise my discretion to dismiss Ms Banks’ unfair dismissal application. I do so on the basis that I am satisfied that:

•  Ms Banks failed to comply with Directions of the Commission on three occasions, despite being afforded sufficient opportunity and being warned of possible consequences. Her repeated non-compliance with the Commission’s directions in these circumstances is unreasonable.

•  Ms Banks has shown an unwillingness to prosecute her case, evidenced by the history of this matter to date.

•  The continuing non-compliance has caused unnecessary delay and additional costs incurred by the respondent. Services Australia is entitled to some finality so as to ensure the notion of a ‘fair go all round’.

•  Ms Banks failed to attend the hearing in relation to the s.399A application without explanation.

Conclusion

[16] Pursuant to s.399A of the Act, Ms Banks’ unfair dismissal application is dismissed. An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

V Bulut of Counsel with A Spivey for Commonwealth of Australia as represented by Services Australia.

Hearing details:

2020.
Canberra and Sydney (By telephone):
December 14.

Printed by authority of the Commonwealth Government Printer

<PR725395>

 1   [2018] FWC 1583.

 2 Ibid at [24].