Smallacombe

[2022] FWC 2931

[2022] FWC 2931

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.789FC - Application for an order to stop bullying and sexual harassment

Smallacombe

(SO2022/95; SO2022/577)

COMMISSIONER MCKINNON SYDNEY, 23 NOVEMBER 2022

Application for an order to stop bullying and sexual harassment

SO2022/95

1. Ms Melanie Smallacombe applied for an order to stop bullying and sexual harassment at work on 21 February 2022 (the first application). The application was made in relation to work performed for the Catholic Church Endowment Society Incorporated trading as Catholic Education SA (CESA). Ms Smallacombe has not worked for CESA since 2015 and is instead on unpaid leave.

1. A conference was held in the matter on 24 March 2022. A second conference scheduled for 5 April 2022 was cancelled at the request of Ms Smallacombe and a further conference was then held on 28 April 2022. Efforts to resolve the matter eventually stalled. On 20 June 2022, Ms Smallacombe complained about my handling of the case and asked for another Commissioner to “run” it (the recusal application).

1. The recusal application was listed for mention on 22 June 2022. Ms Smallacombe did not attend. Directions were then issued for hearing of the recusal application. Ms Smallacombe did not file materials in accordance with the directions and did not appear at the hearing on 1 August 2022. The recusal application was dismissed.

1. Also on 1 August 2022, directions were issued for a hearing on the merits of the first application. The hearing was scheduled for 18 October 2022. Ms Smallacombe did not file materials in accordance with the directions and did not appear at the hearing.

1. Instead, on 23 August 2022, Ms Smallacombe emailed Chambers explaining that she was unable to provide submissions due to declining mental health, the prolonged ongoing nature of the matter and continual issues with the process. Ms Smallacombe provided the telephone number of her general practitioner for contact if I required more information about her wellbeing. It is worth noting at this juncture that it was Ms Smallacombe’s responsibility to provide this evidence if she sought to rely on it in connection with an adjournment or other application to vary the directions. In any event, no request for an adjournment was made and no change was either sought or made to the directions.

1. On 14 October 2022, Ms Smallacombe wrote to Chambers asserting that by her email of 23 August 2022, she had asked me to seek information from her general practitioner about her medical condition and that I had not done so. I do not agree that she made this request. What she had done, as noted above, was provided contact information for her doctor if I required more information. Ms Smallacombe separately foreshadowed the provision of a medical certificate in relation to severe exacerbation of her medical conditions but did not then provide evidence of this kind.

1. On 17 October 2022, CESA applied to have the first application dismissed on the basis that it was frivolous or vexatious and had no reasonable prospects of success.

1. The hearing on 18 October 2022 proceeded in the absence of Ms Smallacombe. At the start of the hearing, I notified CESA of a potential conflict of interest in connection with a recent board appointment and sought submissions on the matter. I then heard the first application for Ms Smallacombe’s application to be dismissed. Leave was granted for the filing of a further affidavit in relation to the dismissal application.

1. On 21 October 2022, Ms Smallacombe wrote to say that she had not read emails from the Commission about the hearing on 18 October 2022 and seeking more time as she was unwell and no longer had a doctor. She asked that we “stick to a process that’s fair, quick and non exploitive” of her medical conditions and disability. On the same day, CESA filed and served its foreshadowed affidavit in support of the dismissal application.

1. On 25 October 2022, the Commission sent Ms Smallacombe a copy of the transcript of the hearing of 18 October 2022 with a direction to file and serve any submissions or other material on which she sought to rely in relation to the issues raised during the hearing by close of business on 3 November 2022. The only response received from Ms Smallacombe were two brief emails – the first of which does not make sense and the second which states that Ms Smallacombe was unable to read the message as she was prioritising her wellbeing due to exacerbating mental health.

1. On 4 November 2022, CESA sought confirmation as to whether Ms Smallacombe had filed any materials in relation to the first application and pressed for the first application to be dismissed. Chambers confirmed to CESA that no materials had been received. What appears to be an automatic response email was then received from Ms Smallacombe.

SO2022/577

1. On 16 November 2022, Ms Smallacombe lodged a second application for orders to stop bullying and sexual harassment at work (the second application). The second application relies on the “all the same” facts and circumstances as those to which her first application relates and appears to have been made under the apprehension that the first application had by then been dismissed.

Apprehension of bias

1. The potential conflict of interest as notified to the parties on 18 October 2022 relates to my recently joining the board of a regional Catholic school in New South Wales. CESA does not see any impediment to my continuing to deal with the matter and observes that there is no formal relationship between Catholic Education South Australia and Catholic Education New South Wales. No submission in relation to the matter has been received from Ms Smallacombe.

1. In the absence of any objection to my continuing to deal with the matter for this reason, and no evidence in support of any such objection, I find that no fair‑minded lay observer might reasonably apprehend that I might not bring an impartial mind to resolution of the questions I am called upon to decide in this case. My only interest in the outcome as between Ms Smallacombe and CESA is as the presiding member in relation to Ms Smallacombe’s applications under the Fair Work Act 2009 (Cth). I have no other association with any of the parties or persons involved in the matter or with CESA more broadly. The school in question is separate and distinct from both CESA and Catholic Education NSW. There is, in other words, no logical connection between my role on a regional school board in New South Wales and the possibility that I might decide the first application made by Ms Smallacombe other than on its merits. In the circumstances, an apprehension of bias relating to the role would not be a reasonable one. I will continue to deal with the applications.

Non-compliance with directions

1. Section 587(1) of the Act provides:

“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.”

1. It has clearly been difficult for Ms Smallacombe to engage with the process involved in a case of this kind in the Commission. The medical certificates provided by Ms Smallacombe indicate that she is not able to attend the Commission due to chronic ill health. The difficulty is that this is Ms Smallacombe’s application. Her involvement is required if it is to progress, unless and until it is either withdrawn or resolved in some other way, whether by agreement or decision. The Commission has a duty to start dealing with applications to stop bullying and sexual harassment promptly and to deal with them in a way that is fair, quick, and just. To do so requires Ms Smallacombe’s reasonable participation, including her compliance with directions and attendance at scheduled conferences and hearings.

1. Ms Smallacombe has not complied with any directions of the Commission since 20 June 2022. In my view, this is not likely to change in the foreseeable future. On each occasion since 20 June 2022 when directions have required material to be filed, or attendance before the Commission, Ms Smallacombe has not filed the requisite materials and has not appeared. The limited available medical evidence suggests that she is not well enough to do so, even with advance notice of the listing and repeated attempts to have her join in proceedings at the scheduled time.

1. The consequence is that the first application has not been able to progress and both time and resources have been wasted in seeking to provide the opportunity for Ms Smallacombe to have her case heard. In this context, Ms Smallacombe’s request for a process that is “fair, quick and non exploitive” is difficult to accept. Fairness and the efficient conduct of proceedings in this particular case require that the parties not be put to further costs if Ms Smallacombe is either not willing or able to pursue the first application at this time.

1. For these reasons, I have decided to dismiss the first application under section 587(1) due to Ms Smallacombe’s repeated non-compliance with directions of the Commission. It is not necessary to deal separately with whether the first application is frivolous or vexatious or whether it has reasonable prospects of success. I would simply observe that the prospects of success in this case rise and fall on the supporting evidence, of which, as things presently stand, there is none.

1. The first application (SO2022/95) is dismissed.

The second application

1. I have decided to waive the requirement for service of the second application on the respondents and to dismiss the second application under s.587(1) of the Act without holding a hearing.

1. My reasons are these. Firstly, and as noted above, the second application appears to have been made under the mistaken belief that the first application had recently been dismissed. It would not be appropriate for the second application, which relies on the same facts and circumstances as the first application, to proceed when its purpose is to avoid the effect of dismissal of the first application. The appropriate course in such cases is to seek permission to appeal and to appeal.

1. Secondly, there is nothing new to indicate that Ms Smallacombe will be in a better position to pursue the second application than the first. Ms Smallacombe has again used similar language to indicate that she is unwell and is prioritising her wellbeing. She has foreshadowed the filing of medical evidence but has not done so. She now has no doctor and is in dispute with four medical professionals “in a corruption case”. In this context, it is reasonably foreseeable that relevant medical evidence will not be produced by Ms Smallacombe and that she will not comply with future directions of the Commission in relation to the programming of her case.

1. Thirdly, Ms Smallacombe alleges that four medical professionals shared her personal medical evidence with the Commission and that there is a conspiracy between her last lawyer, CESA, the Teacher’s Registration Board and myself. In each case, the allegations are made in connection with Ms Smallacombe’s trusting “no one”. They either are, or appear to be, without foundation. This adds to my concern about Ms Smallacombe’s likely willingness or capacity to participate in the second application if it is allowed to proceed.

1. Finally, Ms Smallacombe’s covering email ends with the statement that “this matter is no longer a FWC matter, its rather a criminal matter that is the responsibility of the Federal Police.” From this statement, it is not even clear that Ms Smallacombe wants the second application to proceed in the Commission.

1. The second application (SO2022/577) is dismissed.

COMMISSIONER

Appearances:

No appearance by the applicant.
E McCarthy of Piper Alderman for the respondents.

Hearing details:

2022.
Sydney (by video):
October 18.

Final written submissions:

October 21.

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