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[2020] FWC 5218
defendant. The Respondent’s s. 399A application was granted and the Applicant’s s. 394 unfair dismissal application was dismissed under s. 399A(1)(b); an order dismissing the application was to issue with the...
The Commission dismissed Ms Shankar's unfair dismissal case because it found repeated failures to meet directions and to participate in the separate dismissal hearing were unreasonable. It considered that she had been given several opportunities to provide the required material and respond, but those opportunities were not used to address the s. 399A application. The Commission also considered the resulting delay and expense to the employer. It did not decide whether the underlying dismissal was fair: it assumed the unfair dismissal claim was arguable for the purpose of deciding the procedural application.
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Ms Anita Shankar applied to the Fair Work Commission for an unfair dismissal remedy against Fairmont Resort & Spa on 31 March 2020. The Respondent denied that it had unfairly dismissed her ([1]). The decision by Deputy President Cross did not determine whether the dismissal itself was fair. It determined the employer’s later application to dismiss the unfair dismissal proceeding under s. 399A of the Fair Work Act 2009 (Cth).
The case-management history was central. On 11 June 2020, directions required Ms Shankar to file and serve submissions, witness statements and documentary material by 2 July. Following a request for more time, the deadline was extended to 9 July, while the hearing dates remained in place ([3], [5]–[7]). The directions included an information sheet explaining how witness statements should be prepared, including that statements should be based on what the witness had directly seen, heard or done, and should be signed and dated ([4]).
Ms Shankar’s representative, Mr Ben Sabeto, filed a document on 12 July. It was three days late and did not include witness statements. The Commission also considered that it arguably did not contain submissions in the required sense ([8], [38]). Further directions followed. After directions were amended on 28 July to allow another week, a document filed on 5 August again contained no witness statements, even though it listed Ms Shankar’s and Mr Sabeto’s statements as documentary evidence ([12], [14], [17], [39]).
The Respondent applied under s. 399A on 12 August 2020, later amending its application with minor changes ([18]). Directions for the response required Ms Shankar to file her opposition by 21 August ([19]). No response was filed by then, and Chambers reminded her that the deadline had passed ([20]). On 2 September, the day before the hearing, Mr Sabeto sought an adjournment. The requests were refused, with telephone attendance offered as an accommodation ([21]–[23]). Neither Ms Shankar nor Mr Sabeto attended the 3 September hearing, and attempts to contact them were unsuccessful ([24]).
After the hearing, the Commission gave Ms Shankar a further opportunity to respond in writing after receiving the transcript. The materials she filed on 18 September included statements and evidence supporting the underlying unfair dismissal claim, but did not address the s. 399A application or the Respondent’s hearing submissions ([24]–[26], [43]). On 29 September, the Commission granted the Respondent’s application and dismissed the unfair dismissal claim under s. 399A(1)(b) ([52]).
The Commission treated s. 399A as a discretionary power, not an automatic consequence of missing a deadline. Section 399A(1), set out at [30], permitted the Commission to dismiss an application if the applicant unreasonably failed to attend a relevant conference or hearing, failed to comply with a relevant direction or order, or failed to discontinue after a settlement. The employer could apply for the power to be exercised under s. 399A(2).
The decision used principles summarised in Whittaker, drawing on Ghalloub: an applicant ordinarily starts with an entitlement to have the case heard; directions are important to case management; only in extreme circumstances should a party be shut out from litigating a fairly arguable issue; and each case depends on its own circumstances. A history of non-compliance, particularly where it suggests the matter cannot be prepared within an acceptable period, and continuing failures causing delay, expense or prejudice are relevant ([35]). The Commission also noted the statutory object of a fair go all round for both employer and employee ([36]–[37]).
Deputy President Cross examined separate stages of non-compliance. First, the 12 July material was late and lacked the witness statements and properly developed submissions required by the directions ([38]). Second, the 5 August material again lacked the statements, despite the Applicant having been directed in person to the requirements and despite the further extension ([39]). Third, the Applicant did not file the material she intended to rely on in opposition to the s. 399A application by 21 August, or thereafter before the hearing ([40]–[41]). Fourth, after being given another opportunity to respond following the hearing, she did not provide a response to the s. 399A issues ([43]).
The missed hearing mattered as a further part of the history. The Commission had refused the adjournment requests, offered telephone attendance and found that the asserted grounds had not later been substantiated ([22]–[24], [42]). The decision did not treat non-attendance in isolation: it assessed it alongside the repeated failures to comply with directions and the lack of a meaningful response to the dismissal application.
The Commission expressly acknowledged that Ms Shankar was entitled to have her unfair dismissal case heard and assumed, for the purpose of deciding the s. 399A application, that her claim was arguable ([44]). But that starting point did not require the Commission to keep providing opportunities indefinitely. It relied on the distinction between providing an opportunity to present a case and ensuring that a party takes advantage of it ([47]–[48]).
The cumulative consequences also mattered. The Commission found that the proceeding had been unnecessarily delayed, that hearing dates had been vacated twice, and that the Respondent had incurred unnecessary expense ([49]–[50]). It described the circumstances as extreme and exercised its discretion to dismiss ([51]). Although the Respondent also relied on the failure to attend under s. 399A(1)(a), the formal conclusion identifies s. 399A(1)(b) as the provision under which the s. 394 application was dismissed ([52]).
The decision does not purport to create a new statutory test. It applies s. 399A and the case-management principles it cites. The statutory provision already authorised dismissal for specified unreasonable conduct, including failure to comply with directions and failure to attend a hearing ([30], [33]). The Explanatory Memorandum to the Fair Work Amendment Bill 2012 is described as indicating that the power was intended to address the small proportion of applicants who pursued claims improperly or unreasonably, and to be available only where there was an unreasonable act or omission ([34]).
The cited principles supplied context for exercising that power. Whittaker summarised the considerations drawn from Ghalloub, including the ordinary starting point that a party should have their case heard and the relevance of persistent non-compliance that causes delay, expense or prejudice ([35]). Viavattene was cited for the statutory objective of balancing employer and employee interests and ensuring a “fair go all round” ([36]–[37]). The decision applied these ideas to a particular procedural history rather than announcing that every missed filing or hearing justifies dismissal.
After this decision, the legal position stated in the judgment remains the statutory and case-management framework it applied: a dismissal requires unreasonable conduct under s. 399A, assessed in the circumstances, and the power is discretionary. The outcome here illustrates that repeated failures, even where the underlying claim is assumed arguable, can have serious procedural consequences when the Commission considers that adequate opportunities have been provided and the proceeding has been delayed.
The judgment note says an appeal under s. 604 was lodged, identified as C2020/7794. The supplied judgment does not state the appeal outcome. It therefore does not establish whether this decision was later affirmed, varied or set aside.
At [35], the judgment records that the starting point is an applicant’s entitlement to have their case heard, but that only extreme circumstances should result in a party being shut out of a fairly arguable issue. In plain English, dismissal is not meant to be a routine response to procedural mistakes. The Commission must consider both the applicant’s opportunity to pursue the claim and the practical effect of repeated non-compliance.
At [44], Deputy President Cross says: “I am willing to assume for the purposes of determining the s. 399A Application that the Applicant has an arguable case in her unfair dismissal application.” This is significant because it separates the procedural decision from the merits. The Commission did not find that the dismissal was fair, or that Ms Shankar’s claim lacked merit. It assumed arguability and then decided whether her conduct justified ending the proceeding.
At [45], the Commission describes the history as an “obdurate refusal” to follow directions, with four unreasonable failures to comply and one unreasonable failure to attend. This is the decision-maker’s characterisation of the cumulative history, not a general rule that a particular number of missed deadlines automatically leads to dismissal.
At [47], the Commission says it must provide a reasonable opportunity to present a case, but is not required to ensure that the party takes advantage of that opportunity. The passage reflects a limit on the decision-maker’s procedural responsibility. It does not remove the obligation to provide an opportunity; it says the obligation is not the same as ensuring that a party uses it effectively.
At [49]–[50], the decision connects the repeated non-compliance with practical consequences: delay, two sets of vacated hearing dates and unnecessary expense for the Respondent. The case-management rationale was therefore not only formal obedience to directions. It also concerned the ability to bring the proceeding forward fairly and efficiently.
At [51]–[52], the Commission calls the circumstances “extreme” and grants the Respondent’s application, dismissing the s. 394 application under s. 399A(1)(b). This is the operative result. The judgment’s conclusion does not decide the underlying unfair dismissal merits.
The decision is most relevant to fact patterns involving a sustained pattern rather than a single isolated failure. The features the Commission relied on included repeated directions, extensions of time, explanations of what documents were required, and further opportunities to file or respond ([3]–[4], [7], [12], [14], [16], [19]–[25]). It also mattered that the material repeatedly failed to meet the stated requirements, including the absence of witness statements after they had been specifically required.
Another relevant feature was that the applicant appeared to intend to oppose the dismissal application but did not file the required response, did not attend the hearing, and later submitted documents that addressed the underlying unfair dismissal claim rather than the dismissal application ([40]–[43]). The Commission treated the relationship between the material filed and the issue actually before it as important.
The decision also identifies consequences that may matter in comparable cases: delay, vacated hearing dates, unnecessary expense, and difficulty in progressing the respondent’s case ([49]–[50]). It should not be read as establishing a numerical threshold or as deciding that any one of these matters is sufficient by itself. The Commission’s conclusion depended on its assessment of the entire history as an extreme case.
The decision may be less directly comparable where the missed direction is isolated, where there is a substantiated explanation, where the required material is substantially provided, or where the party has not received comparable notice and opportunities. Those possibilities are not decided here; they are ways of identifying factual distinctions from the record and principles in this judgment, not conclusions about how another case would be decided.
The supplied materials do not include any later decision discussing or applying Shankar. The judgment’s introductory note records that an appeal was lodged under s. 604, but provides no appeal judgment or result. It is therefore not possible, on this source alone, to state whether the decision was affirmed, reversed, varied or otherwise treated on appeal.
The authorities that appear in this decision are earlier sources, not later treatment of Shankar. Whittaker supplies a summary of relevant case-management principles, drawing on Ghalloub ([35]). Viavattene is cited in connection with the “fair go all round” objective ([36]). Sullivan and Allesch are cited for the principle that a decision-maker must afford an opportunity to be heard but need not ensure that the person uses it ([47]–[48]). These authorities explain the reasoning in Shankar; they do not show how later courts treated Shankar itself.
The document also refers to Ingui as an additional decision in a footnote to the Whittaker discussion ([35]). It does not separately analyse Ingui. Any account of later precedent status would require sources beyond the judgment supplied here.
The judgment does not resolve the merits of Ms Shankar’s unfair dismissal case. The Commission expressly assumed that the claim was arguable for the purpose of the s. 399A application ([44]). The alleged misconduct, the employer’s reasons for dismissal, and whether the dismissal was harsh, unjust or unreasonable were not determined in this decision.
The outcome of the recorded appeal is also not supplied. The decision note confirms an appeal was lodged, but does not state its result. That leaves open whether the appeal affected the decision or its continuing precedential status.
The judgment’s reasoning is fact-specific. It does not set a precise number of missed directions, a fixed period of delay, or a universal measure of prejudice that will justify dismissal. It identifies matters relevant to the discretion and then characterises the accumulated facts as extreme ([35], [49]–[51]). The application of those principles in a different procedural history remains dependent on that case’s facts.
Finally, the decision’s formal order identifies s. 399A(1)(b), while the reasoning also considers the failure to attend under s. 399A(1)(a) ([42], [52]). The judgment treats the non-attendance as part of the overall history supporting dismissal, but the stated statutory basis for the final dismissal is non-compliance with directions under paragraph (b).
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4. The applicant intends to question Miss Shankars work colleagues in relation to the following.
[18] On 12 August 2020, the Respondent filed an application pursuant to s.399A of the Fair Work Act 2009 (Cth) (the "Act") seeking that the Applicant's unfair dismissal application be dismissed (the "s.399A Application"). That application was subsequently amended on 28 August 2020, with only very minor amendments.
[19] The matter was listed for a Directions Hearing on Monday 17 August 2020, in relation to the s. 399A Application. In that Directions Hearing, the directions for the hearing of the Applicant's unfair dismissal application were vacated, including the hearing dates. The matter was listed for Hearing of the s. 399A Application on 3 September 2020. Directions for the filing of materials in relation to the s. 399A Application were made as follows (the "17 August Directions"):
Ms Anita Shankar (the Applicant) is directed to file with the Fair Work Commission, and serve on Fairmont Resort & Spa (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in opposition of the s. 399A application in this matter by 4pm on 21 August 2020.
The Respondent is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents .
I note that your submissions, in respect of the s. 399A application, were due by 4pm Friday 21 August 2020. Please see the attached directions issued on 17 August 2020.
Chambers is yet to receive the Applicant's submissions in this regard."
[21] No further communications were received from the Applicant until two emails at 10.57am and 11.05am on 2 September 2020, the day before the hearing of the s. 399A Application. At that time, Mr Sabeto sent the two emails to my Chambers, and the Respondent's legal representatives, in almost identical terms, which were as follows:
"I am seeking that this matter be re-scheduled to a later date no sooner than November
I am of no presumption that the adjournment will be granted on the following substantial grounds provided in this application.
1 unavailability of a representative that started acting for a party before the application was listed for hearing.
. Ben sabeto who was acting for me is away for family business and has been unable to return as planned due to flight restrictions leaving any representation and or documents required to prove my caseo
2. death or serious injury of a family member of an applicant, a significant person in the respondent's business or a witness,
As mentioned before in previous requests we have family members experiencing serious health issues which is consuming all of our time at this stage
We request time to attend to our families needs then allow us time to focus on these matters and give mthem the
We are seeking a date no sooner than 1/11/2029 which will allow time for us to be there for our families." (Original text retained)
[22] At 12.22pm on 2 September 2020, my chambers responded to the two emails received as follows:
It is presumed that you are requesting an adjournment until 1 November 2020, not 2029.
The Deputy President notes Mr Sabeto's unavailability to attend the Hearing in person and as such will accommodate his attendance via teleconference. I will contact you on your previously supplied mobile number, **********, promptly at 9:30am.
Please confirm that Ms Shankar will be in attendance in person."
[23] At 2.58pm and 7.16pm on 2 September 2020, two further requests for adjournment were made to my Chambers only. The Applicant has sought that the contents of those requests remain confidential. I considered those requests and rejected them. By email from my Chambers either the Applicant or Mr Sabeto were requested to attend the 3 September Hearing in person or by telephone.
[24] Neither the Applicant nor Mr Sabeto attended the Hearing of the matter on 3 September 2020. Attempts were made by my Associate to contact either the Applicant or Mr Sabeto by telephone without success. In that Hearing the Respondent made brief submissions in support of the s. 399A Application. After the conclusion of the Hearing, my Chambers sent an email to Ms Shankar in the following terms:
I refer to the above matter and the listing of the matter for Hearing at 9:30am 3 September 2020.
The Hearing of the Respondent's s. 399A application proceeded this morning at the Fair Work Commission before Deputy President Cross.
I note that your adjournment requests were denied and that you were notified that either your, or Mr Sabeto's, attendance was expected. I was unsuccessful in reaching either yourself or Mr Sabeto via telephone.
With the exception of the non-compliance with the 17 August directions, the Respondent's arguments were confined to the contents of their amended application.
In a further effort to facilitate your participation, the Deputy President requests your Written Submissions in response to the s. 399A application. To assist you in preparing your response, Chambers will provide to you by email the full transcript of the Hearing. You will be permitted 5 days to file your Submissions once the transcript is sent to you.
The Respondent will be afforded three days to submit any reply material to your Submissions. The Deputy President will then determine the outcome of the s. 399A application.
In any Written Submissions that you choose to file, if you refer to any factual assertions, for example Mr Sabeto being delayed by flight restrictions (email from Mr Sabeto of 2 September 2020, at 11.05am), or losses within families (email from Mr Sabeto of 1 July 2020, at 10.09am), in order for those assertions to be accorded any weight you should include documentary evidence recording the basis for those factual assertions."
[25] By email at 1.14pm on 10 September 2020, the transcript of the Hearing on 3 September 2020 was sent to the Applicant and Mr Sabeto. That email advised as follows:
In accordance with my email below, please see attached transcript for the Hearing on 3 September 2020.
Please provide any Written Submissions in response to the s. 399A application by 4pm 18 September 2020."
[26] At 1.50pm on 18 September 2020, the Applicant sent an email to my Chambers that stated "Please see attached submissions and evidence, we still require subpoenaed documents and Accor workers as requested." Annexed to that email were statements of the Applicant and Mr Sabeto, together with other evidence to be relied upon by the Applicant in support of her unfair dismissal application (the "18 September Materials"). No part of the 18 September Materials responded in any way to the s. 399A Application, or the oral submissions made on behalf of the Respondent during the 3 September 2020 Hearing.
[27] On 23 September 2020, pursuant to the Directions issued in the 3 September 2020 hearing, the Respondent replied to the 18 September Materials (the "Respondent's Reply Submission"). The Respondent expanded on oral submission made at the 3 September 2020 hearing regarding the Applicant's failure to attend that Hearing. The Respondent noted that consideration should also be given to s. 399A(1)(a) of the Act, as the Applicant's unreasonable failure to attend at the 3 September 2020 Hearing should also be taken into consideration in the s. 399A Application.
[28] The Respondent noted that the Applicant had not advanced any evidence to demonstrate that her failures to comply with the directions of the Commission, and her failure to attend a hearing conducted by the Commission, were reasonable. The filing of witness statements over two months after 2 July 2020 (the date on which her witness statements were first due to be filed and served), without any explanation for the considerable delay, was not reasonable. The Respondent submitted that the pattern of failure by the Applicant in relation to the requirement to file her evidence in accordance with directions issued by the Commission (despite the issuance of multiple amended directions) and her failure to attend the Dismissal Application Hearing, made her conduct unreasonable.
(a) By 4pm on 21 August 2020, pursuant to the 17 August Directions; or
[30] Section 399A of the Act provides as follows:
(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.
(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.
The s. 399A Application
[31] The Respondent's grounds for the s. 399A Application are outlined in the Form F1 Application Form as follows:
49. The Applicant and Mr Sabeto have provided no reasonable excuse to date for their conduct, being the unreasonable failure to comply with a direction or order of the Commission relating to the Application.
50. The Respondent has not acted unreasonably. On 28 July 2020 the Respondent attempted to reasonably accommodate the Applicant's requests for amended directions and timeframes to seek appropriate legal representation.
51. On 12 July 2020, when the Applicant submitted her Anita Shankar v Fairmont Resort submission to the Commission. This document did not contain the Applicant's witness statements or other evidence in compliance with the 2 July 2020 Direction.
52. On 14 July 2020, when the Applicant submitted an "outline of her case". Again this document did not contain the Applicant's witness statements or other evidence in compliance with the 2 July 2020 Direction.
53. The Unfair Dismissal Practice Note makes clear at paragraph 55, that witness statements stand as evidence of a witness, unless a member decides otherwise. At no stage during the proceedings has the Deputy President made orders to the effect that the Applicant's evidence may be presented in any other manner.
54. During the 21 July 2020 conference with Deputy President Cross, the Applicant was specifically advised that witness statements must be served in support of her claim.
55. The Applicant has provided no clear explanation as to why she refuses to produce witness statements.
56. The Respondent has now incurred significant legal costs in defending the unmeritorious claim due to the Applicant's flagrant disregard for the Directions and Orders of the Commission.
57. The Applicant's representative, Mr Sabeto has on numerous occasions proposed to adduce evidence in a manner that is inconsistent with the objects of the unfair dismissal jurisdiction and continues to inherently complicate the proceedings and cause the matter to be run inefficiently.
58. The Respondent has been put in a position where it is required to prepare a case without having seen the Applicant's evidence.
59. In the present circumstances the Respondent is entirely prejudiced in its ability to prepare its evidence and materials, and is increasingly being put to additional costs as a direct result of the non-compliance of the Applicant."
[32] As noted above, the Respondent also submitted that a further ground for dismissal arose pursuant to s. 399A(1)(a) of the Act, because the Applicant unreasonably failed to attend at the 3 September 2020 hearing.
[33] The Commission has the discretion to dismiss an unfair dismissal application under s. 399A of the Act on application by an employer, in circumstances where there has been an unreasonable failure to attend a conference or a hearing held by the Commission in relation to the application, or unreasonable non-compliance with directions of the Commission.
[34] The Explanatory Memorandum to the Fair Work Amendment Bill 2012, which amended the Act to include the provision, said in relation to s. 399A applications, that the intention of the provision was "to address the small proportion of applicants who may pursue claims in an improper and unreasonable manner. ....In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant."[1]
[35] In Adrian Whittaker v Total Harvesting Pty Ltd T/A Total Harvesting[2]("Whittaker"), Deputy President Clancy summarised the relevant principles in considering s. 399A, drawing on a decision of the Full Bench of the Australian Industrial Relations Commission in Ghalloub v Aon Risk Services Australia Limited ("Ghalloub")[3]. The Deputy President summarised the relevant principles as follows:
"The role of case management was discussed by the Full Bench of the Australian Industrial Relations Commission in Ghalloub v Aon Risk Services Australia Limited (Ghalloub). In summary, that decision outlined the following principles:
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;
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."
[36] The sixth principle outlined in Whittaker directs focus on the circumstances of the Respondent, which are undoubtedly a relevant consideration arising from the objects of the Act. As the Full Bench observed in Viavattene v Health Care Australia ("Viavattene")[4]:
"... 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)."
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(b) to establish procedures for dealing with unfair dismissal that:
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.
Note: The expression "fair go all round" was used by Sheldon J in in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95." (Emphasis added)
(a) Unreasonable Failure to Attend a Hearing or Comply with a Direction
(i) 11 June Directions, as amended by the 2 July Directions
[38] The Applicant failed to comply with the 11 June Directions, as amended by the 2 July Directions, because the 12 July Submissions were three days late (notwithstanding that an extension of eight days for filing had been granted), but more importantly, they included no witness statements, or arguably even submissions, as required. That failure was unreasonable for the following reasons:
(a) The 11 June Directions had, as detailed at paragraph [4] above, specifically outlined how witness statements and submissions should be prepared; and
(b) At the time of preparing the 12 July Submissions, the Applicant was represented by Mr Sabeto. In a submission seeking permission to represent the Applicant filed in the proceedings, Mr Sabeto outlined his experience as being that of someone knowledgeable of tribunal proceedings, as follows:
"The applicant seeks permission to be represented in preceding by Mr Ben Sabeto who is not a paid agent subject to section 596 of the Act, the commission may permit a person to represent a party in a matter before the Commission despite the persons failure to lodge a notice in accordance with sub rule (1)
(ii) 21 July Directions as Amended by the 28 July Directions
[39] The Applicant failed to comply with the 21 July Directions as amended by the 28 July Directions, because the 5 August Submission (notwithstanding that an extension of one week for filing had been granted), included no witness statements, notwithstanding that points 16 and 17 of the part titled "Documentary Evidence" listed "Miss Shankar's statement" and "Mr Sabeto's statement", nor arguably even submissions. That failure was unreasonable for the following reasons:
(a) On 21 July 2020, at the directions hearing in the matter, the Applicant's attention was directed by the Commission to that part of the 11 June Directions that outlined how witness statements and submissions should be prepared. The Applicant had been specifically directed as to what was required to comply with the directions; and
(b) While on 27 July 2020, Mr Sabeto stated that he was no longer the Applicant's representative, Mr Sabeto corresponded with my Chambers on behalf of the Applicant on 29, 30 (twice) and 31 July 2020, and he served the 5 August Submission from his email address. I therefore conclude that Mr Sabeto continued to represent the Applicant, and so she could not be characterised as a self-represented litigant at any material time.
[40] The Applicant failed to comply with the 17 August Directions by simply failing to file any outline of submissions, witness statements or other documentary material that she intended to rely upon in opposition of the s. 399A application by 4.00pm on 21 August 2020. I acknowledge that there was no requirement to actually file some materials, and the Applicant could choose not to file any materials in opposition to the s.399A Application, though such an approach would lead to the s. 399A Application being considered unopposed.
[41] As the Applicant eventually filed the 18 September Materials, I conclude that the Applicant intended to oppose the s. 399A Application. The Applicant therefore failed to comply with the 17 August Directions by failing to file any materials that she intended to rely upon in opposition of the s. 399A application by 4.00pm on 21 August 2020, or thereafter. That failure was unreasonable for the following reasons:
(a) At the directions hearing on 17 August 2020, it was clearly outlined to the Applicant that the directions for the hearing of her unfair dismissal application had been vacated and that the Commission was proceeding to hear, in accordance with the 17 August Directions, the s. 399A Application;
(b) Upon the Applicant failing to file any materials that she intended to rely upon in opposition of the s. 399A application by 4.00pm on 21 August 2020, the Applicant was contacted by my Chambers noting that no materials had been received from her; and
(c) The Applicant took no steps to file any materials that she intended to rely upon in opposition of the s. 399A application thereafter, or prior to the hearing of the s. 399A Application.
[42] The Applicant failed to attend the 3 September Hearing. That failure was unreasonable for the following reasons:
(a) While the Applicant had from 10.57am and 11.05am on 2 September 2020, sought adjournments of the 3 September Hearing, all adjournment requests had been refused;
(b) Accommodation was made for the Applicant to attend the 3 September Hearing by telephone; and
(c) The Applicant has failed subsequently to substantiate any basis for the adjournment requests made.
(v) Directions Arising from 3 September Hearing
[43] Notwithstanding her non-attendance at the 3 September Hearing, the Applicant was granted further opportunity to file materials opposing the s. 399A Application, after being provided with the transcript of the s. 399A Application, by 18 September 2020. The Applicant failed to file any materials responding to the s. 399A Application, and that failure was unreasonable because:
(a) The materials filed, being the 18 September Materials, did not respond in any way to the s. 399A Application, or the oral submissions made on behalf of the Respondent during the 3 September 2020 hearing; and
(b) The Applicant was clearly on notice from the directions hearing on 17 August 2020, the 17 August Directions, the s. 399A Application, and the transcript of the 3 September Hearing, that the sole matter before the Commission was the s. 399A Application.
(b) Should the Applicant's Unfair Dismissal Application be Dismissed
[44] I note that the starting point of any consideration of the s. 399A Application is that the Applicant is entitled to have her case heard, and I am willing to assume for the purposes of determining the s. 399A Application that the Applicant has an arguable case in her unfair dismissal application.
[45] The history of this matter, however, discloses an obdurate refusal by the Applicant to follow directions of this Commission. On four separate occasions the Applicant has unreasonably failed to comply with directions, and on one occasion unreasonably failed to attend a hearing.
[46] The fact that the Applicant has finally made an attempt to comply with the 11 June Directions, as amended by the 2 July Directions, or the 21 July Directions as amended by the 28 July Directions, does not simply result in one or more of those directions being enlivened. All directions relating to the hearing of the Applicant's unfair dismissal proceedings were vacated and replaced by the 17 August Directions, that the Applicant has simply ignored.
[47] The status of this matter is that the s. 399A Application is before the Commission. The Applicant has ignored three opportunities to make submissions in relation to that application, and I do not consider that any further opportunities are necessary. The Applicant has been provided with an opportunity to present her case, and the Commission is not required to ensure that the Applicant took advantage of the opportunities presented. As Deane J said in Sullivan v Department of Transport[5]:
". . . it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the act nor the common law imposes on the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled."
[48] Justice Kirby made an observation to similar effect in Allesch v Maunez[6] regarding proceedings in the Family Court of Australia, but equally apposite to proceedings before the Commission, when he observed:
"It is a principle of justice that a decision maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made . . .
. . . it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests.
Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment."
[49] The 11 June Directions, as amended by the 2 July Directions, and the 21 July Directions as amended by the 28 July Directions, provided for case management of the Applicant's unfair dismissal application to ensure compliance with the objects of Part 3 - 2 of the Act for quick, flexible and informal procedures that address the needs of employers and employees. The history of the Applicant's non-compliance with those directions clearly indicates an unwillingness on the Applicant's part to have the matter ready for trial within an acceptable period of time. The Applicant's failure to comply with the directions relating to the hearing of the s. 399A Application further confirms that unwillingness. As a result, the proceedings have been unnecessarily delayed, with hearing dates for the unfair dismissal application having to be vacated twice.
[50] The Respondent has throughout appropriately sought to ensure the Applicant's compliance with all directions issued. That has without doubt resulted in unnecessary expense to the Respondent. It would be unfair to the Respondent to allow these protracted proceedings to continue.
[51] In what I consider to be the extreme circumstances of this case, it is appropriate that I exercise my discretion to dismiss the Applicant's unfair dismissal application pursuant to s. 399A of the Act as sought by the Respondent.
[52] For the reasons outlined above, I have decided to grant the application by the Respondent and dismiss the Applicant's s. 394 application pursuant to s. 399A(1)(b) of the Act.
[53] An order dismissing the application will be issued in conjunction with this decision.
[1] Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161-163].
[2] [2018] FWC 1583, at [24]; See also Ingui v MSS Security Pty Ltd [2018] FWC 2201, decision of Masson DP.
[4] [2013] FWCFB 2532, at [39].
[5] [1978] FCA 48; (1978) 20 ALR 323 at 343_._
[6] [2000] HCA 40; (2000) 203 CLR 172. at [35], [38]-[40].
Printed by authority of the Commonwealth Government Printer
Ms Anita Shankar
Fairmont Resort & Spa [2020] FWC 5218
(1978) 20 ALR 323
(2000) 203 CLR 172
The Respondent’s s. 399A application was granted and the Applicant’s s. 394 unfair dismissal application was dismissed under s. 399A(1)(b); an order dismissing the application was to issue with the decision.
[20] Submissions were not received from the Applicant in accordance with the 17 August Directions. On 24 August 2020, my Chambers emailed the Applicant as follows:
[29] The Respondent submitted that the above failures were compounded by the failure of the Applicant to file any material or submissions in response to the s.399A Application, either: