//
[29]
[2018] FWC 5670
General information, not legal advice.
Fair Work Commission
2018-09-07
Original judgment source is linked above.
[2018] FWC 5670 [Note: An appeal pursuant to s.604 (C2018/4960) was lodged against this decision.]
s.394 - Unfair dismissal
Failure to comply with Directions - application by Respondent for an adjournment - application by Respondent to file material late - applications refused.
[1] On 4 July 2018, Mr Samuel O'Leary (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by his former employer The Archer Hotel T/A Huntsman Hotel (the Respondent) which took effect on 20 June 2018.
[2] A conciliation conference was unable to be conducted and the matter was allocated to my Chambers on 3 August 2018.
[3] The Commission's records indicate that:
On 3 August 2018 Mr Matt Mitchell contacted the Commission and advised he was the best contact for the Respondent and sought that the Commission conciliate the matter.
At 2:44pm on 6 August 2018, my Associate contacted Mr Mitchell by telephone who confirmed he was the appropriate contact for the Respondent. My Associate emailed Mr Mitchell a copy of the Form F2 Application made by Mr O'Leary, provided a blank Form F3 Employers Response, sought that the form be completed and returned within 1-2 days, and advised that a Directions Hearing would be conducted by telephone at noon on 9 August 2018.
At 3:26pm on 6 August 2018, Mr Mitchell and the Applicant were emailed a Notice of Listing for the Directions conference at noon on Thursday 9 August 2018, conference dial-in instructions were provided.
On 7 August 2018 Mr Mitchell provided the completed Form F3 Employers Response.
[4] A Directions conference was conducted on 9 August 2018. The Applicant was represented by Mr David Ey with permission pursuant to s.596(2) of the Act. No one appeared on behalf of the Respondent. The conference proceeded in the absence of the Respondent. Directions were issued on the same day requiring the parties to file and service an outline of their submissions, witness statements and any documents upon which they sought to rely by 23 August 2018 and any reply material by 30 August 2018. The Hearing was scheduled for 10 and 11 September 2018.
[5] At 10:43am on 23 August 2018, my Associate sent a reminder to the parties that their submissions were due by 4:00pm.
[6] At 12:47pm on 23 August 2018, Ms Emily Hunt, Associate of Charlton Rowley, advised that they had been instructed to represent the Respondent, noted the requirements of the Directions and sought an additional 7 days to comply with the Directions.
[7] The Applicant objected to the extension of time.
[8] I determined to extend the time for both parties until 9:00am on Monday 27 August 2018 and advised the parties. At 3:57pm on Thursday 23 August 2018, Ms Madeline Brown, Special Counsel, on behalf of the Respondent acknowledged the amended filing date.
[9] The Applicant filed a s.596 submission, an outline of submissions and two witness statements at 8:46am on 27 August 2018.
[10] At 9:14am on 27 August 2018 my Associate emailed the parties and advised that the Respondent's material was overdue.
[11] At 12:02pm on 27 August 2018, Mr Ey emailed the Commission and the Respondent and advised he would object to any material being filed late by the Respondent.
[12] On 29 August 2018 my Associate emailed the parties and reminded them that material in reply was due on 30 August 2018.
[13] No material or communications were received from the Respondent.
[14] On 5 September 2018, I listed the matter for a further Directions Hearing at 4:00pm on 6 September 2018.
[15] The Directions conference was conducted. Mr Ey represented the Applicant. Ms Gray (of counsel) was instructed by Charlton Rowley. Permission was granted to both parties pursuant to s.596. At the time no material had been filed on behalf of the Respondent.
[16] Ms Gray sought that the Hearing dates be vacated in order to allow the Respondent to file its material. There was no dispute that the Respondent had failed to comply with the Directions. No explanation for the failure to comply with the Directions was provided. Mr Ey objected to the application.
[17] Having considered the submissions put to me by the parties, pursuant to s.589 of the Act, I determined (in transcript) to reject the Respondent's application to vacate the Hearing dates as a result of:
The lateness of the application and its proximity to the Hearing date (one business day).
The failure of the Respondent to provide any explanation as to why they failed to comply with the Directions.
The effect of the application when measured against the requirements of s.577 of the Act.
Prejudice to the Applicant.
[18] Mr Ey then asked that I make a direction that the Respondent not be permitted to file any further material. This application was discussed briefly and I adjourned that matter until 9:30am on 7 September 2018 to allow for further submissions.
[19] Mr Ey provided written submissions in opposition to the Commission receiving further evidence from the Respondent in support of its case.
[20] The Respondent subsequently filed an outline of submissions, and the next morning, two witness statements (deposed by Mr Mitchell and Mr Anderson) in relation to the substantive matter overnight.
[21] At the continued Hearing on 7 September 2018 Ms Wells (of counsel) represented the Applicant, Ms Gray continued to represent the Respondent.
[22] Ms Wells substantially relied upon the submissions filed by Mr Ey. Those submissions are summarised as follows:
The Respondent had been put on notice of the orders of the Commission and had had every opportunity to file its evidence including an extension of time.
The Respondent has had ample time to file evidence and has failed to provide any explanation for failing to do so.
The general case management principles applicable to Courts and Tribunals points to the prejudice and delay which would be occasioned should the Commission accede to the Respondent's request, including additional legal costs.
The granting of the Respondent's request would result in the need for an adjournment to allow the material to be filed [this submission was made prior to the receipt of the Respondent's statements overnight].
The granting of the Respondent's request will result in delay and the overriding object of case management principles is to ensure the efficient and cost effective conduct of litigation and to ensure justice may be done between parties.
• In Coopers Brewery Ltd v Panfida Foods Ltd[2] Rogers CJ, citing Apex Pallet Hire Pty Ltd v Brambles Holdings Ltd said:
"In looking at the rights of the defendant which are the subject of submissions in this application, it is worth remembering that the right of a party to litigation is the right to have a reasonable opportunity to present its case, or its defence. It is not accurate to regard the law as being that if one party, through neglect, is in a position where it is not able properly to present its case it is automatically entitled to an adjournment. ... If there is detriment to a defendant in the case going for hearing on Monday, and I accept that there is detriment, it is a detriment or prejudice which is self-induced. The lack of preparation of the defendant's case appears to be due to the defendant's neglect, or to the neglect of its former or present solicitors. Dealing with this application in 1988, it is relevant to bear in mind that it is an application which was issued in and has remained within the Commercial List of this Court. The Commercial List has as one of its objectives trying commercial cases fairly but speedily. To achieve that objective, timetables are set and parties are required to comply with the timetables for preparation. It is appropriate, of course, to consider the respective rights of the parties. It is fair to accept that, apart from loss of the advantage for which no doubt it chose to issue in the Commercial List of having its case heard promptly and on the date that is fixed, no substantial prejudice to the plaintiff is shown. ... Particularly in a case in the Commercial List, but also in other cases, there are interests other than the interests of the parties to be considered. Mr Gillard has fairly conceded that workability of the courts and the practice of the Commercial List are considerations of importance in this application. The courts have an obligation to conduct business before them in a manner which is as efficient, effective, and prompt as is consistent with high standards of justice. It always needs to be remembered that if a court list is disrupted by a date which has been fixed for hearing being vacated because a party has failed to prepare that party's case, other litigants waiting for a place in the list have needlessly been prejudiced."
[23] The Respondent contended that:
The Commission should not disregard the principles of procedural fairness.
The failure to comply with Directions was regrettable.
No explanation for the delay was provided.
A refusal to allow the Respondent to submit material will deny procedural fairness.
Any prejudice could be dealt with by the granting of an adjournment and costs.
The fact that the Applicant has experienced counsel meant that it could "get up to speed" with the additional material provided.
[24] The Respondent sought that I review the two statements which were submitted overnight. I acceded to this request over the opposition of the Applicant. The material contained in the statement was largely (but not entirely) within the knowledge of the deponents as at the date the Directions required the material to be filed.
[25] It was contended that portions of the evidence in the two statements were not available as the deponents did not have access to some electronic files, however one of the pieces of information which was suggested to be unavailable which attached to Mr Jarrod Anderson's statement contained a notation that it was printed on 25 June 2018.
[26] Ms Gray appeared to suggest that Mr Mitchell was not aware of the proceedings until on or about 17 August 2018. This was in conflict with communications between the Commission and Mr Mitchell on file which were dated 6 August 2018 (copies being provided to the Respondent and an opportunity to respond).
[27] I have considered the evidence, submissions and authorities put to me.
[28] I make the following factual findings:
The Respondent was served with a copy of the Directions on 9 August 2018.
The Respondent was afforded a reasonable opportunity to comply with the Directions, including an extension.
No request was made for any variation of the Directions post the extended submission time.
The Directions were not complied with by the Respondent.
No explanation has been given for the failure to comply with Directions.
The Applicant would be prejudiced by allowing the Respondent to submit further material.
[29] The effect of granting the Respondent permission to lodge further material would defeat the effect of my refusal to accede to the Respondent's request to adjourn the Hearing scheduled for 10 and 11 September 2018.
[30] The relevant sections of the Act are set out below.
[31] Section 589 of the Act provides:
(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.
(2) The FWC may make an interim decision in relation to a matter before it.
(3) The FWC may make a decision under this section:
(a) on its own initiative; or
(b) on application.
(4) This section does not limit the FWC's power to make decisions.
[32] In this matter, the decision relates to whether the Commission should grant the Applicant's application which seeks orders that the Commissioner will not receive material from the Respondent that is overdue, and in breach of Directions issued earlier in the matter, or alternatively acceded to the Respondent's request to accept late material. A decision in relation to whether overdue material should be received by the Commission clearly falls within the scope of section 589 of the Act.
[33] Section 577 of the Act provides:
The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.
[34] The Respondent has submitted that by the Commission refusing to receive the material there would be a denial of procedural fairness and this would cause injustice to the Respondent.
[35] The Applicant objects to my receiving the late material on the basis that the Respondent has had ample opportunity, it would cause delay and prejudice to the Applicant and that there is no basis for the argument that the Respondent will not be afforded procedural fairness.
[36] Broadly speaking, "procedural fairness" means acting fairly in administrative decision making.
[37] In the context of this case, the Respondent has been afforded procedural fairness on a number of occasions. The Respondent has been provided a number of opportunities to submit material, they were advised by my Chambers when the material became overdue and that the Applicant would object to the any overdue material being received. Further, the Respondent did not contact the Applicant or my Chambers at any time in relation to the failure. Any injustice or lack of procedural fairness to the Respondent is self-inflicted.
[38] It was only when the matter was listed for Directions and the parties appeared before me on 6 September 2018 and I observed that the Respondent was in breach of the Directions that the Respondent sought to make an application for an adjournment of the Hearing dates.
[39] In addition to the case law I was referred to by the Applicant, in the decision of Russell Penttila v. Woolworths Limited and Woolworths (South Australia) Pty Limited T/A Woolworths Petrol[3] the Full Bench noted:
"[50] However it is not the task of Commission to ensure that a party attends at a hearing. The task of the Commission, subject to the requirements of natural justice and the objects of the Act, is to ensure all parties have an opportunity to be heard on a matter.
"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 emphasizing 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." 30
[52] Mr Penttila did not take the opportunity to present his material. He did not make submissions at hearing. He did not seek an adjournment either for the lodging of materials or the hearing itself.
[53] By the time he contacted the Commission the matter had concluded.
[54] Unsurprisingly the hearing did not take long: Mr Penttila had neither put in materials nor attended the hearing.
[55] We do not conclude this as a breach of the principles of natural justice, but that Mr Penttila did not take advantage of the opportunity to be heard either in writing or orally notwithstanding such an opportunity was provided.
[56] On this point we agree with Woolworths that the Commission provided an opportunity to Mr Penttila on 13 and 17 October 2017, and at the hearing on 19 October 2017. The failure to attend the hearing following non-compliance with directions on two occasions, without explanation until this appeal, cannot lead to a conclusion that an injustice has occurred toward Mr Penttila."
[40] In Sullivan v Department of Transport[4] Deane J noted that:
"....it is important to remember that the relevant duty of the Tribunal [in this case the AAT] is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled."
[41] In this case, as I have discussed at length above, the Respondent and its representative were well aware of the Directions that were issued in the matter and the filing dates. At the time the material fell due, the Respondent and its representative was reminded to provide the material and failed to do so.
[42] Procedural fairness demands that a party be given a reasonable opportunity to put its case. The Respondent was granted such an opportunity. For reasons only the Respondent knows, it declined to take advantage of the opportunity to put its case. The Applicant complied with the orders and presented its evidence.
[43] It would be a denial of procedural fairness to allow a party to ignore the Commission orders and only to make its case known at the last minute before a Hearing. If an Applicant was as dilatory as the Respondent, I have no doubt an application under s.399A would be successful.
[44] It would be a denial of fairness, contrary to the principal of a "fair go all round" and case management principles, that the Respondent's conduct not be subject to sanction. As discussed in the decision of Apex, the granting of an adjournment with costs is not an automatic answer to the failure of a party to comply with Directions, and when the contemptuous behaviour of the Respondent is considered such a course is not appropriate in this case.
[45] Section 589 of the Act permits the Commission to make decisions as to how and when a matter is dealt with. Those powers are broad and discretionary.[5]
[46] In my view the circumstances in this matter are such that it is an appropriate exercise of my discretion to refuse to accept the statements of Mr Mitchell and Mr Anderson and any other statements or material that could have been submitted in accordance with the Directions, and I so order.
[47] As advised on 6 September 2018, the Hearing on 10 and 11 September 2018 will proceed. The Applicant has filed its material. The Respondent will be at liberty to cross-examine the Applicant's witnesses and make submissions.
[2] (1992) NSWLR 738 at 774 ('Coopers').
[5] CFMEU v Hooker Cockram Projects NSW Pty Ltd (2011) 201 IR 397.
Printed by authority of the Commonwealth Government Printer
Samuel O'Leary
The Archer Hotel T/A Huntsman Hotel [2018] FWC 5670
(2009) 239 CLR 175
(1978) 20 ALR 323
(2011) 201 IR 397