Pub­li­ca­tions

Fair Work Com­mis­sion crit­i­cis­es time-wast­ing unfair dis­missal applications

In a recent deci­sion, Diane Por­te­ous v G. Kakafikas and A.G. Bek part­ner­ship t/​a Yarra Glen Phar­ma­cy [2019] FWC 6264, Deputy Pres­i­dent Col­man of the Fair Work Com­mis­sion (Com­mis­sion) has crit­i­cised appli­cants who com­mence unfair dis­missal pro­ceed­ings and then don’t take the nec­es­sary steps to pros­e­cute their claim.

The Case

The Appli­cant worked for the Respon­dent from 13 Octo­ber 2018 until 21 June 2019. The Respon­dent applied to have the unfair dis­missal pro­ceed­ings ter­mi­nat­ed on the basis that the Appli­cant had not served the applic­a­ble min­i­mum peri­od for a small busi­ness’ (as defined in the Fair Work Act) of 12 months. 

The Com­mis­sion made direc­tions for the par­ties to file evi­dence and sub­mis­sions. The Respon­dent com­plied with these direc­tions. The Appli­cant only filed some pay slips in rela­tion to her post-ter­mi­na­tion earnings

The mat­ter was then list­ed for a non-com­pli­ance tele­phone hear­ing. When the Appli­cant was con­tact­ed by the Asso­ciate to Deputy Pres­i­dent Col­man she stat­ed she thought the mat­ter had been list­ed for ear­li­er in the day and was now too busy to par­tic­i­pate. She then hung up the tele­phone. The rep­re­sen­ta­tive of the Respon­dent took part in the hear­ing, mak­ing an appli­ca­tion for the Com­mis­sion to dis­miss the pro­ceed­ings on the basis the Appli­cant had failed to attend the non-com­pli­ance hear­ing and com­ply with directions.

The Com­mis­sion wrote to the Appli­cant to advise of this appli­ca­tion and issued a direc­tion for her to file sub­mis­sions in respect of it with­in a spec­i­fied time frame. The Appli­cant did not com­ply with the direction. 

The Asso­ciate to Deputy Pres­i­dent Col­man then wrote to the par­ties noti­fy­ing them of a hear­ing of both the juris­dic­tion­al and non-com­pli­ance appli­ca­tions made by the Respon­dent. The par­ties were direct­ed to par­tic­i­pate in this hear­ing and informed that if they did­n’t the Com­mis­sion would rely upon the mate­r­i­al already before it.

The Respon­dent par­tic­i­pat­ed in the hear­ing. The Appli­cant could not be con­tact­ed. The out­come of the hear­ing was a find­ing that the Appli­cant had not served the req­ui­site min­i­mum peri­od of employ­ment (being 12 months) to pur­sue the claim. The appli­ca­tion was dis­missed accordingly. 

The Obser­va­tions of the Deputy President

In the judg­ment Deputy Pres­i­dent Col­man was crit­i­cal of the fail­ure of the Appli­cant to pros­e­cute her claim:

Ms Por­te­ous decid­ed to bring pro­ceed­ings against the Phar­ma­cy and seek an order from the Com­mis­sion requir­ing it to pay her com­pen­sa­tion. She filled out the pro for­ma unfair dis­missal appli­ca­tion form. She paid the fil­ing fee of $73.20. She then did almost noth­ing to pur­sue her claim. She ignored direc­tions of the Com­mis­sion to file mate­ri­als. She failed to par­tic­i­pate in pro­ceed­ings. But she did not dis­con­tin­ue the application.

Mean­while the Phar­ma­cy, a small coun­try busi­ness, was put to the effort of respond­ing to her claim. It quite prop­er­ly took the claim seri­ous­ly. It com­plied with direc­tions to file mate­r­i­al. It par­tic­i­pat­ed in two tele­phone pro­ceed­ings. Fur­ther, the resources of the Com­mon­wealth were deployed on Ms Por­te­ous’ claim. The staff of the Com­mis­sion wrote to Ms Por­te­ous on numer­ous occa­sions con­cern­ing her fail­ure to file mate­ri­als. I con­duct­ed two pro­ceed­ings and have record­ed writ­ten rea­sons for my deci­sion as the Act requires.

While the Phar­ma­cy, the pub­lic ser­vice, the Com­mis­sion, and ulti­mate­ly there­fore the tax­pay­er were at work on Ms Por­te­ous’ unfair dis­missal appli­ca­tion, she did almost noth­ing. Regret­tably, such behav­iour is not uncom­mon. The Com­mis­sion con­ducts non-com­pli­ance’ hear­ings in unfair dis­missal mat­ters on the Fri­day of every week, usu­al­ly in call-over for­mat because of the many non-com­pli­ant appli­cants. Where respon­dents have not com­plied with direc­tions, the unfair dis­missal appli­ca­tions sim­ply pro­ceed to hear­ing. I note that respon­dents’ non-com­pli­ance is equal­ly unac­cept­able, but it is rar­er, because of the risk they face that the unfair dis­missal appli­ca­tion will be upheld and a rem­e­dy ordered.”

The Deputy Pres­i­dent then called for reform to address the problem: 

It is com­plete­ly unac­cept­able that a per­son can insti­tute a legal pro­ceed­ing, fail to pros­e­cute it, and waste the oth­er party’s time and that of the Com­mis­sion, all with impuni­ty and at no cost to them­selves oth­er than a fil­ing fee of $73.20. Although there is the pos­si­bil­i­ty under the Act to bring an appli­ca­tion for costs, there is a high bar for suc­cess and such appli­ca­tions are, under­stand­ably, rarely brought. Fur­ther, in many cas­es, par­tic­u­lar­ly those involv­ing small busi­ness­es, there are no costs such as legal fees that might be recouped through cost orders. What has been expend­ed is valu­able time that could have been put to pro­duc­tive use. In my view there should be more robust con­se­quences under the Act for lit­i­gants who fail to make rea­son­able efforts to pros­e­cute applications.”

Some Clos­ing Thoughts

Employ­ers and their rep­re­sen­ta­tives should famil­iarise them­selves with the appli­ca­tions that can be made, pur­suant to sec­tion 399A of the Fair Work Act, for the Com­mis­sion to dis­miss pro­ceed­ings where an appli­cant fails to active­ly pros­e­cute their claim. This case offers some use­ful guid­ance as to the cir­cum­stances in which the Com­mis­sion will take this step. 

With respect to the Com­mis­sion, and acknowl­edg­ing the impor­tance of stream­lined pro­ce­dures to facil­i­tate ready access to jus­tice for employ­ees, con­duct­ing unfair dis­missal pro­ceed­ings by tele­phone (which often means par­ties are par­tic­i­pat­ing on mobile tele­phones, some­times in the midst of doing oth­er things) might unin­ten­tion­al­ly be pro­mot­ing an inap­pro­pri­ate infor­mal­i­ty, par­tic­u­lar­ly among some self-rep­re­sent­ed lit­i­gants who seem to treat the Com­mis­sion as a glo­ri­fied com­plaints bureau. A bal­ance needs to be struck between the effi­cient dis­pos­al of pro­ceed­ings and ensur­ing respect for the Com­mis­sion is maintained.