e) The Commission can consider the initial Form F2 lodged by the Applicant on 17 October 2018 if the Applicant does not lodge her materials. There are instances where the Commission may not have all the material on hand but may still determine the matter as long as the matter is conducted in a procedurally fair manner.

"The common law incorporates other principles in recognition of the fact that, in the adversarial system, cases are always decided within the evidentiary framework the parties have chosen and are often decided on incomplete evidence. The legal maxim that "all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted" acknowledges "the problem that in deciding issues of fact on the civil standard of proof, the court is concerned not just with the question 'what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision'"[3]

• [16] Robin Creyke, Emeritus Professor from the Australian National University notes in 'Procedural fairness in tribunals and commissions of inquiry' (2019) 150 Precedent 4:

"If procedural fairness applies, the procedures to be followed vary according to the circumstances.[4] The content is decided according to the terms of the statute; the particular circumstances; the subject matter; the type of enquiry; and the rules, for example, of the tribunal or enquiry body.[5]

At the least, the person affected must be notified, generally in writing.[6] The notice should have sufficient details to enable the person affected to respond in a timely fashion, to understand the substance of the case and the potential adverse consequences, and to reply either in writing or in person.[7] The person must be given a reasonable time to respond,[8] and an opportunity to deal with any information that is 'credible, relevant and significant'.[9] The attention of the person should be drawn to any issue critical to the outcome which may not be apparent.[10] Adverse information should be disclosed but there is no need to divulge the evaluation of the evidence by the decision-maker."[11]

• [17] The Applicant has been offered the opportunity to participate in a fair hearing. The Applicant has been afforded substantive notice of what she is required to do in presenting her argument and has been given substantive time to provide a written reply. The Applicant has been given enough time to deal with any information that could be credible, relevant and significant. This decision puts the Applicant on clear notice of what she is required to do to present her case.

• [18] I am satisfied that making these accommodations will address the Applicant's incapacity in providing a fair hearing.

• [19] The Applicant has delayed the matter on the basis that she does not have legal representation and is required to review all materials herself before submitting these documents to the Commission.

• [20] The Applicant initially had legal representation at conciliation but has not obtained representation since. The Applicant stated she did not have the financial means to seek legal representation. On 30 January 2021, the Applicant noted that she has contacted Legal Aid, Caxton Legal Centre, Queensland Advocacy and a community legal centre but they have provided her limited assistance because of a lack of funding or resources.

• [21] Legal representation is not a requirement in unfair dismissal proceedings as the Commission must grant leave for a party to be represented under s.596(2) of the Act. The granting of representation is an exercise of discretion with consideration of the relevant factors.[12] The Commission is also designed to be accessible and operate efficiently and informally to accommodate self-represented applicants. The Explanatory Memorandum to the Fair Work Bill 2008 states the following:

"FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves. Individuals and companies can be represented by an officer or employee, or a member, officer or employee of an organisation of which they are a member, or a bargaining representative. Similarly, an organisation can be represented by a member, officer or employee of the organisation. In both cases, a person from a relevant peak body can be a representative. However, in many cases, legal or other professional representation should not be necessary for matters before FWA. Accordingly, clause 596 provides that a person may be represented by a lawyer or paid agent only where FWA grants permission."

• [22] I acknowledge that there is an imbalance between the Applicant and Respondent as the Respondent is a large law firm with skilled practitioners in employment law. However, the Respondent is not seeking to be represented and therefore s.596 is not a consideration that I am required to turn my mind to. Furthermore, the informal nature of the Commission addresses this imbalance and allows the Commission member to ensure a 'fair go all round' accorded to the employer and employee.

• [23] Although the Applicant would benefit from representation considering her condition, there is no requirement in the Act for the Applicant to have legal representation and it should not be a reason for a further delay. It will be sufficient for the Applicant's support person who has reviewed the material to assist the Applicant in presenting her matter at a hearing. The Commission can seek the information it requires to ensure that a 'fair go all round' has been accorded to both parties.

• [24] The Respondent has raised how the delay has caused prejudice to its ability to defend the unfair dismissal claim. It has been noted in the Courts how unnecessary delay causes prejudice.[13] Allsop P succinctly articulated the implications of delay on providing a just outcome in Bi v Mourad [2010] NSWCA 17:

"Delay is a feature of litigation intended to be eliminated as far as possible by the statutory enactment of the regime in the Civil Procedure Act. It cannot always be done. This purpose is not through some parliamentary authoritarian or over-prescriptive view of how people should lead their lives; rather, it is through the keen recognition of the conduct of the courts, in particular in the 20th century, of the need to deal with cases expeditiously if they are to be dealt with justly. Delay and case backlog are not merely factors affecting the costs of delivering justice; they corrode the ability of the courts to provide individual justice. The reforms that have taken place under the Civil Procedure Act and the evident attempt by courts to ensure efficiency can be seen not merely to reflect worthy efforts for efficiency but also to be steps vital for the provision of timely individual justice. Views may differ of justice in any particular case; that is the nature of the term and the value-laden task of a decision-maker to do justice.[14]

• [25] Providing a further delay of the matter prevents the Commission from obligating its functions under s.577 of the Act_._ The Commission has an obligation to perform its functions and exercise its powers in a manner that is:

a) Fair and just

b) Quick, informal and avoids unnecessary technicalities.

c) Open and transparent

d) Promotes harmonious and cooperative workplace relations.

• [26] Continuing to delay the matter is contrary to the Commission's obligations. The matter has been on foot for 6 years and the Applicant has created technicalities that have caused delay. Some examples of how the Applicant has caused technicalities include seeking a confidentiality order, then delaying a response regarding the order and seeking an adjournment just before she is required to file submissions.

• [27] Furthermore, the Applicant nor her support person have demonstrated that they intended for the matter to be finalised with a definitive outcome. The Respondent has not received a definitive response, or timeline of when the matter will be determined.

• [28] The delay affects the Commission's ability to effectively assess relevance, credibility or reliability of witness evidence given by the Applicant and the Respondent. This may prevent a just outcome from occurring. It is already difficult and will become more difficult for the witnesses to recall facts from a specific date six years ago. The High Court notes:

"Watson v Foxman is frequently cited because of its continuing importance in identifying that ordinary human experience exposes that human memory is "fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time."[15]

• [29] It also does not promote harmonious and cooperative workplace relations. Considering the legislative intent of the unfair dismissal claim, the Explanatory Memorandum on the Fair Work Act Bill 2013 states the following:

"The new time limit will align with the 21-day time limit for lodging general protections dismissal and unfair dismissal applications. This will provide greater clarity to applicants and respondents and require applicants to determine at the outset which claim they intend to pursue. Where an employee challenges a dismissal, it is in the interests of both the employee and the employer for the matter to be resolved quickly so that, in the event of a successful challenge, the employee can return to their original position with minimal impact on relationships and management of the business. The time limits for dismissal applications balance the need to provide sufficient time for employees to consider the most appropriate application, and the need to provide certainty for employers in relation to the types of claims they may be exposed."

• [30] The Applicant may seek further delay, but time does not. Further delay of the matter does not assist in the objects of the Act, to either party. If the Applicant is genuinely intending to seek an outcome of her matter, the matter should not be delayed any further.

• [31] If the Applicant requests a further delay of the matter after publication of this Decision, I will consider that the Applicant has been vexatious in extending these proceedings even further. At every opportunity, the Applicant was offered procedural fairness. She was notified in writing of when her materials would be due, and when a hearing date would be listed.

• [32] There has been continual delay from the Applicant regarding the filing of her material. For example, the Applicant disclosed that she has "200 documents, and are over 100 pages which have not been checked for completeness, accuracy or relevance due to her incapacity" on 20 May 2020. The Applicant has received assistance from support workers who have identified the material. The Applicant has the materials ready to be submitted with the Commission as indicated on 22 November 2023. These were not provided to the Commission.

• [33] It appears on a preliminary view with the materials provided before me that the Applicant does not have merits to establish a successful claim and has been vexatiously litigating a claim that has limited prospects of success.

• [34] The Applicant was dismissed after the Respondent requested an independent medical examination (IME) on numerous occasions. The Respondent wrote to the Applicant requesting an IME on 19 June 2018, 27 June 2018, 25 July 2018 and 10 August 2018.

• [35] A show cause letter was sent on 14 August 2018 as the Applicant failed to attend these examination dates and was provided a final opportunity to attend to an IME on 26 September 2018. The Applicant contested the Respondent's need for IME, sent a Medical Certificate from Dr Stuart Reece and did not attend any of these dates as requested. On 19 September 2018, the Applicant did not attend the IME and the Respondent terminated the Applicant's employment.

• [36] The Respondent must have a valid reason to substantiate the IME. The Applicant had not worked with the Respondent from 9 June 2017 to her date of dismissal on 26 September 2018. Over a year had passed while the Applicant had not attended work.

• [37] The employer can question the capacity of the employee if they are not attending work for a prolonged period.[16] A year is a sufficient period of time to request an IME. It appeared to be a lawful and reasonable request.

• [38] The Applicant's continual failure to comply with this request was a valid reason for dismissal. The Respondent's process indicates that they had tried to accommodate the Applicant in attending the IME appointments and had given her multiple opportunities before dismissal.

• [39] A Hearing would be required to confirm the procedure that was undertaken, and this view may change pending on the materials provided. However, the substance of the Applicant's claim before me appears to be one which would not support a further adjournment.

• [40] As a result of the above factors, the Respondent's request for a hearing is granted. In equity and in good conscience, I have determined that the matter should be programmed for hearing after considering the principles of procedural fairness and the objects of the Act.

• [41] The Applicant has been given every opportunity by the Commission to present her argument but has failed to do so. A fair hearing can still be facilitated with the Applicant's condition, noting that there is uncertainty of whether the Applicant's condition will improve. This matter should reach its natural conclusion with the matter being heard without further delay.

• [42] Allowing a further delay of the matter sets bad precedent and will only add further prejudice to the Respondent. It would also continue to prevent the parties from reaching a fair outcome. Furthermore, the Commission is a low-cost jurisdiction intended to be accessible to the public to resolve their matter without creating excessive costs or delays. Granting a further delay would only take away more time and resources of the Commission to perform its role in facilitating and determining matters of others.

• [43] An Order will be issued containing Directions which will require:

1. The Applicant with the assistance of her support person is to file all her material and submissions in support of her unfair dismissal claim by close of business 9 May 2024 to my Chambers. No further adjournment requests will be considered in the filing of materials. If the Applicant wishes to rely on her Form F2, this will be accepted as her submission.

1. The Respondent is to file their material in response to the Applicant's submissions to my Chambers by close of business 23 May 2024.

1. The Applicant may make submissions in reply by close of business 20 June 2024. The Applicant is to inform the Commission who her representative will be. The Applicant does not need to be represented by a lawyer or paid agent. If the Applicant does not identify her representative, it will be assumed to be her support person.

1. In light of the above circumstances, I will refer the matter back to Vice President Catanzariti for consideration as I have expressed a preliminary view.

1. If the Applicant fails to lodge her materials and seeks another adjournment to file her materials, I will dismiss the application on the basis that the Applicant has extended these proceedings in a vexatious manner with no intention to prosecute her matter. As a result, the matter would have no reasonable prospects of success under s.587 of the Act. The Applicant has been given sufficient time and notice on the reasons why a further adjournment will not be granted.

[1] Vilija Burneikis v NGS Super Pty Ltd [2024] FWCFB 49 at [72].

[2] GLJ v Trustees of Roman Catholic Church for Diocese of Lismore [2023] HCA 12 at [53] citing Bell P in Moubarak (Kiefel CJ, Gageler and Jagot JJ)

[4] Russell v Duke of Norfolk [1949] 1 All ER 109 (Russell); CPCF, 622 per Gageler J.

[5] Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (Kioa); South Australia v Slipper (2004) 135 FCR 259.

[6] Andrews v Mitchell [1904] UKLawRpAC 28; [1905] AC 78, 81.

[7] Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 (Alphaone), 591; Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 489; Durani v Minister for Immigration and Border Protection [2014] FCAFC 79; (2014) 314 ALR 130; Seiffert v Prisoner Review Board [2011] WASCA 148; R v Pharmacy Board of Victoria; Ex parte Broberg [1983] VicRp 17; [1983] 1 VR 211, 215.

[8] R v Thames Magistrates' Court; Ex parte Polemis [1974] 1 WLR 1371, 1375; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148.

[9] Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88, 95-7.

[10] Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576

[11] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152.

[12] Kennedy v Qantas Ground Services Pty Ltd [2019] FWCFB 6094 at 34

[13] Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at [5] and [114].

[14] Bi v Mourad [2010] NSWCA 17 at [47].

[15] GLJ v Trustees of Roman Catholic Church for Diocese of Lismore [2023] HCA 12 at [59].

[16] See Dr Amir Reza Zokaei Fard v Royal Melbourne Institute of Technology [2022] FWC 1375 (Cirkovic C); Burns v Sacred Heart Mission Inc [2014] FWCFB 6612

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