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
[2022] FWC 3075
•18 NOVEMBER 2022
| [2022] FWC 3075 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.789FC - Application for an order to stop bullying
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
(SO2022/306)
| COMMISSIONER SPENCER | BRISBANE, 18 NOVEMBER 2022 |
Application for an FWC order to stop bullying – failure of Applicant to progress the matter – dismissal of matter for want of prosecution
An Application was lodged on 27 June 2022 by Ms Yaping (Amy) Yang (Applicant) pursuant to s.789FC of the Fair Work Act 2009 (Act).
The Applicant was the nominee and an employee of Sunrise Creek Pty Ltd. Sunrise Creek held the management rights to provide caretaking services to Body Corporate for Glades Easthill South Community Titles Scheme 30074.
In her Application, the Applicant sought the following remedies:
“1. The body corporate adopts an anti-bullying policy; and
2. The body corporate provides anti-bullying training to the committee and Graham Cohen
3. Graham Cohen provides the automatic pool cleaner in 2 weeks and stop request me to clean the pools between 9pm to 6 am.
4. The Body Corp reimburse our expense for the Body Corp within 14 days.
5. Restrict Graham Cohen to be the Chairman of the Body Corp
6. Graham Cohen stops spreading comments in the complex that might impact on the reputation of me and Mr Liu
7. Stop sending invalid RANs to enforces us to sell our business.”
In the F73 employer/principal response, the Employer raised the following jurisdictional objections:
· The Applicant does not meet the definition of a ‘worker’;
· The alleged bullying was reasonable management action, carried out in a reasonable manner; and
· The Applicant is not working for, or engaged by, the Body Corporate and the Body Corporate is not a constitutionally-covered business.
The Respondent did not object to attending a conciliation conference prior to a determination of the jurisdictional objections.
BACKGROUND
The Application was listed for conference on 25 July 2022. The Applicant confirmed her attendance. The Respondent’s representative also confirmed attendance on behalf of the named person.
A Form F53 and brief submissions pursuant to s.596 of the Act were sought from the Respondent’s representative. These were provided to the Commission and were to be further considered at the conference. Representation was granted on an interim basis only, given the listing was a conciliation conference and nothing could be imposed at the conference. Parties were advised that a formal grant of permission to appear would be held in abeyance until after the initial conference.[1]
The Applicant filed a complaint in respect of the Direction provided for her response to the issue of representation, and the granting of legal representation.[2]
Detailed correspondence from Chambers was then sent to the Applicant[3] in regard to the reasons for the granting of legal representation on an interim basis, and a request to the Applicant to clarify whether she was making a recusal application. An extract from that email sets out:
“The Conference and Representation
Applications of this nature are listed for conference quite quickly after they are allocated to Chambers, as the Commissioner is aware that dealing with the matters expeditiously can assist in resolving a situation as set out in the Application.
It is conceded that a longer period was erroneously provided to the Respondent for a response on legal representation, and this confined your response time. However, the Commissioner has sought to clarify the intent of the legal representation. She has taken into account the history of events with your duties and Mr Hunt and will deal with these appropriately at the conference to ensure procedural fairness.
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. Those matters being that:
· I do not give undertaking to Graham Cohen to use automatic pool cleaner to clean swimming pools between 9:00 pm to 6:00 am. Graham refuses to provide automatic pool cleaner. I have to manually use scoop net to remove the leaves and other debris from the pools. My work pressure and workload have significantly increased.
· Graham tries to delay or refuse to reimburse me.
· Graham Cohen requests me to do extra work which is violate to the caretaking agreement.
· Graham fabricated stories and accused me in breach of the By-laws
In addition, you were seeking:
· The Body Corporate adopt an anti-bullying policy;
· The Body Corporate provide anti-bullying training to the Committee and the Chairman;
· The Chairman provide the automatic pool cleaner in 2 weeks and stops requesting you to clean the pools between 9.00 pm and 6.00 am;
· The Body Corporate reimburse your expense for the Body Corporate within 14 days;
· Restrict the Chairman from being the Chairman of the Body Corporate;
· The Chairman to stop spreading comments in the complex that may impact of the reputation of you and Mr Liu; and
· Stop sending invalid RANs to enforce you to sell your business.
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).
The other matters, which the Commissioner notes were taken into consideration in granting interim legal representation, is that there are two jurisdictional objections raised by the Respondent, as to whether the Application falls within the jurisdiction of the Fair Work Commission. Those relate to whether you are an employee or a contractor as related to the operation of the Body Corporate, and whether the Commission has jurisdiction to deal with the matter.
Legal representation of the Respondent will then require their lawyer to directly respond to these jurisdictional matters in response to questions from the Commissioner. However, the Commissioner will write to the parties on these issues prior. Legal representation may well assist the process in relation to assessing those two jurisdictional matters, in terms of the legal concepts and case law the Commissioner will seek a response on, and a discussion at the conference initially. As set out, further information will be sent to all parties on those jurisdictional matters, and you will be provided any relevant explanation that you require on these matters.
It was also taken into account that you have annexed a significant volume of attachments to your Application. Whilst you are entitled to do so, legal representation can assist in the conciliation in providing efficient and effective management of, and responses to you and the Commissioner in relation to, this volume of documents.”
It was advised that these matters were to form part of discussions at the conference. The Applicant, as a result of dealing with the representation issue in this manner, sought that I recuse myself from further dealing with the Application.
Directions were set for the recusal Application.
The Applicant did not directly reply to Chambers, but copied Chambers into a further complaint email.[4] In that correspondence, the Applicant wrote as follows:
“1. I am objecting to this matter proceeding before Commissioner Spencer.
2. In the last email, I already requested Commissioner Spencer Recusal, but Commissioner Spencer did not execute the recusal herself. As the victim, I involved in the lawsuit can formally request a recusal based on the grounds of unfairness or bias.”
The Directions were further brought to the Applicant’s attention for the filing of material for a recusal hearing.[5] Attached to this correspondence was the Chambers email of 2 August 2022, which set out the basis for the legal representation.
The Applicant replied and stated that justification had not been provided for the granting of legal representation, and that she was seeking legal advice.[6] An email was sent to the Applicant providing the two prior emails, which set out the basis for the granting of the legal representation.[7]
The Applicant sent further correspondence advising that she needed more time to seek legal advice. Accordingly, the Hearing and Directions dates were delisted, and additional time was provided to the Applicant to seek legal advice.[8]
Arrangements for an appointment for the Applicant to obtain legal advice were made (external to Chambers) through the Commission’s Workplace Advisory Service. The Applicant was provided with an appointment.
After a three week period, a further email was sent to the Applicant noting that the matter was held in abeyance and requested an update with regard to listing the recusal matter.[9] The Applicant advised that she was still seeking legal advice.[10]
After further delay, correspondence was sent to the Applicant requesting she advise the further date of her appointment to seek legal advice.[11] The Applicant responded by stating that “At present, I will not consider choosing to proceed with the bullying application until I have obtained legal advice.”[12]
The Applicant was then further referred to the Commission’s free Workplace Advisory Service for legal advice. The Applicant was asked to confirm that she had sought legal advice and that, on the provision of such independent legal advice, there would be no impediment to the recusal Application being heard. Due to the ongoing delay, the Applicant was also advised that failure to convene an appointment for legal advice may lead to the consideration of the Application being dismissed for want of prosecution.[13]
The Applicant responded by stating that she was “still continuing to seek proper legal advice, but will not be forced by you to choose the legal advice you assign.”[14] All facilitation with the Workplace Advisory Service was conducted externally to Chambers.
After a further two-week period, the Applicant again requested the basis for the granting of legal representation.[15] Again this information was provided to the Applicant.[16]
As the recusal Application had been held in abeyance for six weeks, further Directions were then set for the filing of material in respect of the recusal Application.[17]
The Applicant again requested the basis for the granting of legal representation.[18] The basis was again forwarded to the Applicant.[19] The Applicant then sent a further email which stated that she never applied for recusal, and asked for clarification as to who the Respondent(s) were, and who the legal representatives were.[20] The Applicant was referred to her Application as to who the Respondent and the named persons were, and the name of the legal representative was further confirmed.[21]
As the Applicant had confirmed that she had resiled from the recusal Application, correspondence was then sent to the parties listing the matter for conference, and requesting confirmation of their attendance.[22] In lieu of confirming attendance, the Applicant responded by again asking who the Respondent(s) were, and who the legal representatives were.[23] Despite the information being repeatedly provided to the Applicant, the parties and proceedings were again clarified by a further email from Chambers.[24]
The Applicant failed to confirm her attendance as required. Further correspondence was sent to the Applicant advising that if clear confirmation was not provided, the conference would be delisted, and the dismissal of the Application would be considered.[25] The Applicant responded by again asking who the Respondent(s) and their legal representatives were.[26]
Despite the Respondent(s) and their legal representatives being previously advised to the Applicant, it was again set out clearly who the Respondent was, and the Employer and Named Person were on the Applicant’s F72 Application. It was also set out clearly that the F53, provided by the legal representative, identified the represented party. The Applicant was notified that the matter would be set down for conference and no further delays would be permitted.[27]
A further conference time was listed and the parties were asked to confirm their attendance. The Applicant did not confirm her attendance within the required timeframe. The Applicant was again sent correspondence requesting that she urgently confirm her attendance at the conference. The Applicant responded by stating that it was unfair that she be forced to attend a conciliation before she was advised the details of the ‘respondents and their legal representatives.’[28]
To avoid any further delay in the matter, and to ensure that there could be no misunderstanding of who the Respondent(s) were, who was attending the conference, and who the legal representative was, the Respondent’s representative was asked to provide information confirming details of the legal representative, and the individual and/or entity which the legal representative represents.[29] The Respondent’s representative did so.[30]
The Applicant did not confirm her attendance but responded by stating:
“My understand is
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 Mathews 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.”[31]
The Applicant was advised that the conference time could not be held if she did not confirm her attendance. The Applicant was again advised that failure to confirm her attendance would result in the conference being cancelled, and a move to assess the dismissal of her Application.[32] The Applicant did not respond and the conference was delisted.
The matter was then further listed for conference. Parties were directed to be available for the conference and attend the conference pursuant to s.592(1) of the Act. The matter was listed for case management. The Applicant was advised that should she fail to attend the conference as directed, the dismissal of the Application would be considered pursuant to s.587 of the Act, in the circumstances where the Applicant had failed to progress the Application.[33]
The Applicant was confused by the case management hearing, and considered she was being “deceived” to attend a Hearing to determine the matter. Accordingly, the listing was explained to the Applicant, and revoked and converted to a conciliation conference.
The Applicant again responded by claiming not to know who the Respondent(s) and their legal representatives were, and that Graham Cohen was attending the conciliation but not representing himself as an individual. The Applicant did not confirm her attendance.[34]
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.[35]
The Applicant had been put on clear notice that no further correspondence would be entered into prior to the conference, and in circumstances of non-attendance without explanation, the dismissal of her Application for failure to prosecute such would be put to the parties.
The Applicant, on the day before the conference, again sent the same questions that had been clarified and answered repeatedly. Further, she had been provided with assurances that further discussion could occur on any of these matters at the conciliation conference, and that nothing could be imposed at this conference, but that the aim was to facilitate a resolution of her concerns. As noted above, these matters had been confirmed repeatedly to the Applicant, including by the Respondent’s representative on 31 October and 7 November.
At 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.
All contact with the Applicant has been via the email address and phone number provided in the Application.
LEGISLATION
Section 587 of the Act sets out when the Commission can dismiss an application:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
(emphasis added)
SUBMISSIONS
Following the Applicant’s further non-attendance at the most recent conference, correspondence was sent to the parties advising that I would consider the dismissal of the matter, pursuant to s.596(3)(a), for want of prosecution. I directed the parties to provide submissions.
The Applicant, 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. In regards to this, the Applicant had also been advised again, nine days prior to the conference, that no further correspondence would be engaged in, but that any matters would be dealt with at the conference. The Applicant however, contrary to the statement from Chambers, again wrote the day before the conference querying the representation and parties attending.
The Respondent’s representative submitted that the matter should be dismissed pursuant to s.587(1) of the Act, given that the matter had been significantly delayed by the Applicant’s allegations of bias and her failure to pursue those allegations despite numerous opportunities to do so.
The Respondent’s representative also stated that the Applicant had failed to attend the most recent conference despite repeated reminders about the conference, and repeated warnings about the consequences of non-attendance.
Further, it was submitted on behalf of the Respondent that the named person (as set out by the Applicant) was under some stress given the length of the matter, and the lack of opportunities for the named person to be heard on the allegations made against him.
The Respondent’s representative cited Morton v Peregrine Corporation Pty Ltd T/A On the Run[36] in support of the Application being dismissed, and quoted the following extract:
“[2] The matter was listed on 11 July 2011 for a hearing in relation to a jurisdictional objection by the respondent that the applicant had resigned her employment and there was no dismissal at the initiative of the employer. There was no appearance by the applicant and no advice had been received from Ms Morton prior to the hearing that there was any difficulty in attending. My office attempted to contact the applicant when she failed to attend, to no avail.
…
[11] In any event, as the introductory words in s.587(1) indicate, the circumstances in which Fair Work Australia may dismiss an application are not limited to those matters in s.587 of the Act. I am satisfied that the Tribunal has taken appropriate steps to inform the applicant of its attitude to her application and the consequences of failing to make herself available for the phone conference. As a matter of fairness to the respondent I consider that it is appropriate that the matter be brought to an end. I therefore order that the applicant’s s.394 application be dismissed.”[37]
The Respondent’s representative also cited Kora v Cardno Staff Pty Ltd T/A CardnoII,[38] and quoted the following extract:
“[10] In this instance, the Applicant has not evinced sufficient effort to continue to pursue the application she has agitated, despite the Commission’s approaches.
[11] Section 587 of the Act, by way of its language affords scope for the Commission to dismiss an application on such grounds, as made out on a cautious basis. The Federal Court has commented upon the “wide” scope of the words at s.587 of the Act in another context arising under the Act (see Australian Postal Corporation v Gorman [2011] FCA 975 (25 August 2011) at paragraph 33).
[12] In the Full Bench decision in Sayer v Melsteel [2011] FWAFB 7498, the Full Bench provided guidance on the approach to be followed in circumstances where an applicant failed to prosecute their case. The Full Bench noted (relevantly)(at [16]-[17]):
When, as in this case, the applicant fails to attend to prosecute their case and the matter is determined in their absence, assuming there is no denial of natural justice, it would be artificial and unproductive to apply the criteria in s.387 on a hypothetical basis involving speculation about the facts. While the applicant had filed material including witness statements, the fact that he did not attend to pursue his case meant that there was no requirement to take that material into account. The respondent’s case was, in effect, unchallenged. Furthermore, the respondent clearly had a defence of substance. If the Commissioner had concluded that the respondent’s case was frivolous or completely lacking in substance it would have been open to him to take another course, but that is not a matter we need to explore.
It may be prudent, where a matter is determined in the absence of the applicant, for the tribunal to satisfy itself that the respondent had some defence to the action. The Commissioner’s decision is consistent with that approach.
[13] In the circumstances now before me, the employer has provided a response to the Applicant’s claims by way of its Form F3. The employer’s position is that the Applicant was dismissed for serious misconduct, relating to returning a positive result to a random alcohol test. The employer, on the face of its claims, has “a defence of substance” against the claims, or at least “a defence to the action”.
[14] The Full Bench in Viavattene v Health Care Australia [2013] FWCFB 2532 (at [39]) commented on the circumstances where an applicant evinces “an unwillingness to participate in proceedings”, and did so in the immediate context of a discussion of the authority in Sayer v Melsteel:
[...] There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended ‘to ensure that a ‘fair go all round is accorded to both the employer and employee concerned’ (s.381).”[39]
It is noted that whilst these authorities related to the dismissal of unfair dismissal applications, the principles remain relevant to the current matter, regarding an Applicant’s failure to prosecute an application.
Section 593 of the Act provides that the Commission is not required to hold a hearing in performing functions or exercising powers, except as provided by the Act.
Accordingly, further to seeking the submissions from the parties, they were asked to confirm by a certain time whether they objected to the matter being determined on the papers. The Respondent sought that the matter be determined on the papers. The Applicant did not respond. Both submissions of the parties have been taken into account
CONSIDERATION
The power to dismiss an application for unreasonable non-compliance is discretionary.[40] It is not necessary, for the purposes of dismissing an Application pursuant to s.587(1) of the Act, to consider the merits of the Application.[41]
The Applicant displayed a pattern of conduct that was inconsistent with a desire to proceed with the Application. The Applicant continuously raised concerns that were not relevant to the resolution of the matter, and these concerns were repeatedly answered by both Chambers and the Respondent. Relevant explanations were provided, to ensure she was aware of a procedurally fair process.
Despite raising two jurisdictional objections, the Respondent and their representative were prepared to attend a number of scheduled conferences, which had to be delisted due to the Applicant’s non-attendance. Additionally, at no time did the Respondent and their representative object to discussing, at conference, the orders sought by the Applicant. The matters raised by the Applicant at all times were open to discussion and the real possibility of resolution, had she attended a phone conference (as listed).
Set out above, in some detail, are the attempts to progress this matter for the benefit of all parties. The Applicant has sought to rely on a number of extraneous matters, (which had been dealt with on numerous occasions), as impediments to attending a conference. There has been an inordinate amount of correspondence covering the same procedural matters, and no endeavour by the Applicant to progress her matter to conciliation.
The Applicant’s continuing non-compliance and lack of prosecution of her Application, caused significant and unnecessary delay. In addition, the Respondent’s representative submitted that the Respondent was also subject to prejudice and unnecessary expense. All of these matters have been taken into account when considering whether to dismiss the Application for want of prosecution.[42]
CONCLUSION
Accordingly, the Applicant’s continued conduct in averting the progress of her Application, and in lieu of engaging in any phone conference, by sending correspondence that simply duplicated her enquiries already clearly addressed, demonstrated a complete disregard to advancing the Application in any reasonable way.
In all the circumstances of this matter, I have decided to dismiss the Application for want of prosecution pursuant to s.587(3)(a) of the Act.
I Order accordingly.
COMMISSIONER
[1] Chambers email of 22 July 2022.
[2] Applicant’s email of 25 July 2022.
[3] Chambers email of 2 August 2022.
[4] Applicant’s email of 5 August 2022.
[5] Chambers email of 9 August 2022.
[6] Applicant’s email of 12 August 2022.
[7] Chambers email of 12 August 2022.
[8] Chambers email of 15 August 2022.
[9] Chambers email of 5 September 2022.
[10] Applicant’s email of 9 September 2022.
[11] Chambers email of 13 September 2022.
[12] Applicant’s email of 13 September 2022.
[13] Chambers email of 14 September 2022.
[14] Applicant’s email of 16 September 2022.
[15] Applicant’s email of 30 September 2022.
[16] Chambers email of 30 September 2022.
[17] Chambers email of 5 October 2022.
[18] Applicant’s email of 21 October 2022.
[19] Chambers email of 21 October 2022.
[20] Applicant’s email of 21 October 2022.
[21] Chambers email of 21 October 2022.
[22] Chambers email of 24 October 2022.
[23] Applicant’s email of 25 October 2022.
[24] Chambers email of 25 October 2022.
[25] Chambers email of 25 October 2022.
[26] Applicant’s email of 25 October 2022.
[27] Chambers email of 26 October 2022.
[28] Applicant’s email of 31 October 2022.
[29] Chambers email of 31 October 2022.
[30] Respondent’s representative’s email of 31 October 2022.
[31] Applicant’s email of 1 November 2022.
[32] Chambers email of 1 November 2022.
[33] Chambers email of 3 November 2022.
[34] Applicant’s email of 4 November 2022.
[35] Applicant’s email of 15 November 2022.
[36] [2011] FWA 4812.
[37] Ibid [2], [11].
[38] [2015] FWC 4699.
[39] Ibid [10]-[14].
[40] Stefanidakis v D&M Plant Hire [2020] FWC 4868 [20]; Collins [2022] FWC 636 [9].
[41] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 [19].
[42] Ghalloub v Aon Risk Services Australia Limited PR956665 (Giudice J, Deputy President Hamilton and Commissioner Larkin).
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