Tayla Wyatt v Lannu Consulting Pty Ltd v Amber McCasker
[2024] FWC 3035
•1 NOVEMBER 2024
| [2024] FWC 3035 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Tayla Wyatt
v
Lannu Consulting Pty Ltd
v
Amber McCasker
(C2024/6398)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 1 NOVEMBER 2024 |
Application to deal with contraventions involving dismissal
Issue and outcome
On 8 September 2024, Ms Wyatt (the Applicant) applied to the Fair Work Commission (the Commission) for it to deal with general protections contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act). The First Respondent to the application, Lannu Consulting Pty Ltd, trades as the Australian Veterans Advocacy and Consulting Services, or AVAC Services for short. The company is run by its managing director, a Kristian Lannu. The Second Respondent, Amber McCasker, is the director of organisational development of the First Respondent and the partner of Mr Lannu.
There were no jurisdictional objections to the application and therefore the usual course would be to list the matter for conference in accordance with s 368 of the Act. Of course, if the dispute remained unresolved after the conciliation conference and I was satisfied that all reasonable attempts to resolve the dispute had been, or were unlikely to be, successful, then I would issue a certificate to that effect under s 368(3)(a) of the Act. Further, if of the view that consent arbitration or a general protections court application would not have a reasonable prospect of success, I would advise the parties to that effect.
However, the First Respondent, Lannu Consulting Pty Ltd, sought an adjournment of the conference initially premised on two letters from Mr Lannu’s treating physician. The first letter, of 19 August 2024, detailed the health issues Mr Lannu faced, and the physician requested that ‘the conciliation’ scheduled for September be postponed until early November 2024. The letter is perhaps unusual in the current context given it predates the Applicant having made her application to the Commission under s 365 of the Act.
A second letter of 26 September 2024, from Mr Lannu’s treating physician, again outlined the health issues Mr Lannu faced, but on this occasion Mr Lannu’s treating physician requested that the conciliation be postponed until early March 2025.
It is the First Respondent’s request for an adjournment that this decision addresses. I considered it appropriate to determine the matter on the papers in light of the circumstances and the parties’ views.
Background to the proceedings
Directions were issued on 2 October 2024 requiring the parties to file materials in respect of the adjournment sought. On receipt of the Respondents’ materials, it was apparent that the Respondents sought an order for confidentiality orders pursuant to s 594(1) of the Act, having requested that the Applicant not be provided with the witness statements of Ms McCasker and Mr Lannu.
The confidentiality orders sought were in respect of documents evincing the health status of Mr Lannu and those that went to the corporate structure of the First Respondent and its financial and business-related information.
Parties were informed that I did not consider that the Applicant was positioned to test the veracity of the Respondents’ evidence in the witness statements of Ms Amber McCasker and Mr Lannu concerning Mr Lannu’s medical information and health. Further, I considered that information to be sensitive to the extent that its sensitivity outweighed it being disclosed. I considered that adopting an approach whereby the Applicant was provided with the witness statements of Ms McCasker and Mr Lannu that had medical and health information redacted was the preferable approach and would cause no prejudice to the Applicant. I therefore exercised discretion under s 594(1) of the Act to redact such details on the aforementioned witness statements and to issue an order with respect to the medical and health information of Kristian Peter Lannu.
However, in respect of the other categories of documents over which a confidentiality order was sought, I formed the view that they were of apparent relevance to the determination of whether an adjournment was warranted. The documents evinced Mr Lannu’s role, responsibilities and the authority with which he is entrusted by the First Respondent. It followed that the probative value of those documents outweighed any suggestion by the Respondents that those documents were not of apparent relevance to the issue to be determined in this instance, namely whether to grant an adjournment. While the Respondents identified that those documents contained financial and business-related information that was sensitive, in the circumstances I was not persuaded that the content of the documents warranted the issuance of a confidentiality order, particularly when the next stage of the matter is to progress, at some point, to private conference. It followed that a confidentiality order did not issue in respect of those documents evincing the corporate structure of the First Respondent and its financial and business-related information
In light of the delay caused by dealing with the application for confidentiality orders, amended directions were issued which allowed the Applicant further time in which to respond to the adjournment request.
Submissions and evidence in respect of the adjournment request
In support of the First Respondent’s request for an adjournment, Mr Lannu provided a written witness statement from which the following is distilled:
a) Mr Lannu is facing exceptional personal, professional and health challenges to the extent it would be unjust and unreasonable to proceed with the matter absent his direct involvement;
b) AVAC Services provides professional advocacy services, supporting veterans in seeking restitution and closure for their service-related trauma;
c) Mr Lannu, as the managing director of AVAC Services, is the sole-decision maker and oversees all financial and operational matters. Mr Lannu’s role includes decision-making around client management, proficiency assessments, and eligibility for work-from-home arrangements;
d) the scope of Mr Lannu’s role extends to personally handling high-level operational decisions including those that directly involve claims before the Commission, with nobody else within AVAC Services, including Ms McCasker or the representative of the Respondents, possessing the same level of authority or understanding of such intricacies;
e) without Mr Lannu’s participation, the Commission would lack the essential context and operational knowledge necessary to make informed decisions;
f) Mr Lannu has been the primary point-of-contact and decision-maker regarding the management of the Applicant;
g) Ms McCasker does not possess the authority to take on operational and financial responsibilities required to manage the case; and
h) forcing Mr Lannu to participate at this time would not only put his wellbeing and ultimately his health at further risk but would also compromise the integrity of the conciliation process and in turn the services provided to the veteran community.
Similarly, Ms McCasker attested to the following in her witness statement:
a) an adjournment is necessary for practical reasons but is also crucial for Mr Lannu’s health;
b) Mr Lannu is responsible for the final approval of all key business decisions, including those related to financial, employee performance and operational matters;
c) whilst Ms McCasker manages human resource tasks such as employee well-being, policy drafting, draft pay-run, leave requests, complaints, and overall office management, as a small business owner, Mr Lannu has the final authority on all major decisions and therefore his involvement is crucial; and
d) it would not be appropriate for Ms McCasker or the representative of the Respondents to represent the case without Mr Lannu, as neither has the comprehensive authority or insight that he holds.
Staff of the First Respondent similarly gave evidence in the form of statutory declarations that detailed Mr Lannu’s role and his responsibilities as managing director of the First Respondent.
As noted at paragraph [3] of this decision, the First Respondent further placed reliance on the two letters from Mr Lannu’s treating physician.
In response to the adjournment request, the Applicant submitted the following:
a) she was experiencing overwhelming anxiety because of how she was treated, presumedly by the First Respondent, and was currently unable to work because of the same;
b) it is imperative that the issues arising are addressed as soon as possible so that she can begin to heal and rebuild her life;
c) she has had to weigh her own mental health issues against the health issues of Mr Lannu, which she should not have to do;
d) whilst Mr Lannu and Ms McCasker may have their own challenges to contend with, the Applicant struggled to reconcile how Mr Lannu could continue in his role as managing director and yet claim to be unable to manage the responsibilities associated with this case; and
e) she feared that the request for an adjournment may simply be a tactic to postpone the outcome of the case and that the Respondents were aware that the Applicant was requesting as part of her claim that her post-employment obligations be waived. The Applicant added that the post-employment obligations were severely affecting her livelihood and well-being and that she found herself unable to work or even volunteer in veteran advocacy.
Consideration
The consideration of an application for adjournment of a matter requires the exercise of a discretion. The overarching objective must always be the just resolution of the real issues in dispute with minimum delay and expense. The onus to make good the adjournment application lies, understandably, with the applicant for the adjournment.[1] In that respect, regard must be given to ensuring that the applicant for the adjournment is afforded a fair and reasonable opportunity to advance their case, and that any adjournment does not cause undue prejudice to the other party.[2]
In respect of affording the parties procedural fairness, it is uncontroversial that Members of the Commission are obliged to observe procedural fairness in carrying out their functions under the Act.[3] This requires, amongst other things, that the Commission ensure that each party is given a reasonable opportunity to present its case.[4] In Abigroup, Katzmann and Rangiah JJ explained at [125] what is meant by a reasonable opportunity to present a case:
What will constitute a reasonable opportunity for a party to present his or her case in a given situation depends upon the whole of the circumstances, including the nature of the jurisdiction exercised and the statutory provisions governing its exercise. Procedural fairness requires that the statutory power be exercised fairly: that is, in accordance with procedures that are fair to each party in light of the statutory requirements, the interests of the parties and the interests and purposes, whether public or private, which the statute seeks to advance or permits to be taken into account as legitimate considerations.
However, the interests of the parties are not the only considerations. The Commission is an institution which is required to deal with a very large number of matters, and s 577 of the Act provides that the Commission must perform its functions and exercise its powers not only
fairly and justly but also quickly.[5] The deferral of a conference or hearing to a future date will, inevitably, interfere with the hearing of other proceedings and result in delays to other litigants having access to the Commission. Thus, the grant of adjournments and the concomitant loss of valuable hearing days may prejudice the Commission’s capacity to deal expeditiously with other parties’ applications down the track. For this reason, when a matter has been programmed in a way which affords parties a proper opportunity to advance their cases within reasonable timeframes, an adjournment would not readily be granted.[6]
Turning to the adjournment request before me, at paragraph [2] of this decision I have outlined the process which would unfold relatively quickly in circumstances where the adjournment was not granted. Briefly stated, the matter would be listed for a private conference of one to two hours in duration. If it was apparent that after one conference the Commission was not yet satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) had been explored, then a further conference may be listed, or the Commission might deal with the dispute further as contemplated by s 368(1) of the Act.
This step in the process is evidently critical for the Applicant. It is of course the case that the Applicant’s pursuit of a general protections court application or an arbitration of the dispute by consent of the parties before the Commission, is predicated on the requirements set out in s 370 and s 369, respectively. The grant of the adjournment could potentially delay the resolution of the dispute by a minimum of five months – if not more, if a certificate issues pursuant to s 368(3) and the Applicant then proceeds to make a general protections application in the relevant court or pursue an arbitration by consent.
The potential delay occasioned by the grant of adjournment would inevitably be of prejudice to the Applicant who seeks the timely resolution of her dismissal dispute. I have no reason to disbelieve the Applicant when she speaks to being without work – whether on a voluntary or paid basis due, in part, to the post-employment obligations within her employment contract and her mental health. It would further appear that the Applicant has been without work since the date of her dismissal and in that respect clearly seeks recompense associated with such loss.
In respect of the post-employment obligations within her employment contract, I note that as late as 30 October 2024, and not in accordance with any directions issued, the First Respondent filed a letter signed by Mr Lannu that appeared to modify the Applicant’s post-employment obligations. Notwithstanding, it is to be appreciated that the Applicant’s submission that the Commission refrain from acceding to the adjournment request is not premised solely on her submission concerning her post employment contractual restraints.
The adjournment request has been supported by the provision of two letters from Mr Lannu’s treating physician who details as to why Mr Lannu’s conditions would prevent him from participating in a conciliation, with the latter letter of 26 September 2024, requesting a postponement until early March 2025. It might be said that if there was any doubt that Mr Lannu was not fit to participate in a conciliation, the documentation from his treating physician may be regarded as prima facie evidence of Mr Lannu’s incapacity. However, prima facie evidence can be rebutted by other evidence.[7] In the circumstances of this case any presumption of incapacity arising from the treating physician’s assessment may feasibly be rebutted by clear evidence that Mr Lannu is not so incapacitated to contend with the duties and responsibilities he assumes as a managing director of the First Respondent.
On 10 October 2024, Ms McCasker emailed Chambers providing a response to an issue the Respondents had been alerted to in respect of the evidence that had been filed in support of the adjournment request. It was observed that the witness statement for Mr Lannu did not appear to specifically address whether the First Respondent business continued to operate, or whether Mr Lannu continued to work in his capacity as a managing director, and if not, who was undertaking that role in his absence. On behalf of Mr Lannu, Ms McCasker confirmed that Lannu Consulting Pty Ltd remained operational, and Mr Lannu continued in his role as managing director, noting that as a small business owner, his role was essential to the business’s operations. It was however noted by Ms McCasker that due to ongoing health challenges, Mr Lannu’s ability to fully address all responsibilities had been impacted.
It is evident from the material before the Commission that Mr Lannu retains capacity to engage in his role as a managing director of the First Respondent. Whilst Ms McCasker states that Mr Lannu’s ability to fully address all responsibilities (presumedly of his role) has been impacted, it is unclear why preparation for, and participation in, a one to two-hour private conciliation conference(s), with both the support of Ms McCasker and in circumstances where, up until this point at least, the Respondents have been represented, would depart so markedly from that which is required from Mr Lannu in the day-to-day performance of his role. Mr Lannu has provided comprehensive evidence of what his role as managing director entails. That he is still able to perform his duties for the First Respondent, and noting that the First Respondent has, during these proceedings, sought confidentiality orders and proffered to the Applicant a modification in respect of her post employment obligations, indicates that Mr Lannu’s ability to make decisions and issue instructions in respect of the First Respondent business is intact.
Disposition
I am appreciative of the health challenges faced by Mr Lannu in addition to the challenges arising from his personal circumstances and those of Ms McCasker. Without diminishing the significance of those issues, it remains necessary to balance the interests of both the Applicant and the Respondents. I am of the view that the refusal of the adjournment will not prejudice the parties in being able to properly prepare for, and address whether the dispute between the parties can be resolved. The refusal to grant the adjournment squarely addresses the prejudice that would otherwise fall upon the Applicant if the progression of her application was to be delayed by at least five months. Whilst a further consideration is whether the deferral of a conference to a future date will interfere with the hearing of other proceedings and result in delays to other litigants having access to the Commission, in this case that particular factor is not so persuasive. It is not the case that the adjournment request is made in respect of a hearing for example, or a matter before the Full Bench.
Notwithstanding, for the reasons provided, I am not satisfied that sufficient basis has been demonstrated to justify adjourning the conference in this matter until March 2025. The balance of interests of the parties, and to the extent that it is relevant in this case, the public interest, favours the listing of the conference at the Commission’s earliest convenience. It follows that a notice of listing will issue shortly for a conference, as contemplated by ss 368(1) and (2) of the Act.
DEPUTY PRESIDENT
[1] Sanford v Austin Clothing Company Pty Ltd trading as Gaz Man Print S8287, AIRC, Watson SDP, 19 July 2000 [31].
[2] John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station[2019] FWCFB 2925.
[3] See: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 (‘Abigroup’) at [118].
[4] Abigroup at [118].
[5] Alemtsehay Mekuria v MECCA Brands Pty Ltd t/a Mecca Cosmetica; Debra Kelso; Christine Mantacas; Grace Chiruvu[2019] FWCFB 1093 [18].
[6] See generally: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, 239 CLR 175.
[7] R Gauci v GlaxoSmithKline Australia Pty Ltd [2008] AIRCFB 439.
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