DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Diane Porteous
v
G. Kakafikas and A.G. Bek partnership t/a Yarra Glen Pharmacy
(U2019/7401)

Application for an unfair dismissal remedy – minimum employment period not served – application dismissed – observations on unfair dismissal applications that are not prosecuted

[1] This decision concerns an application by Ms Diane Porteous for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act). Ms Porteous worked for the G. Kakafikas and A. G. Bek partnership, which trades as Yarra Glen Pharmacy (the Pharmacy), from 13 October 2018 until 21 June 2019. Ms Porteous claimed that she was engaged on a casual basis during a period of maternity leave taken by a pharmacist, and that upon the pharmacist’s return, she was unfairly dismissed. The application sought an order requiring the Pharmacy to pay Ms Porteous compensation.

[2] The Pharmacy objected to the application on the jurisdictional ground that Ms Porteous had not served the minimum employment period. It says that the Pharmacy is a small business employer, and that the minimum period was therefore one year, whereas Ms Porteous had only 8 months’ service with the Pharmacy.

[3] On 8 August 2019, the Commission issued directions to the parties for the filing of written submissions and witness statements or other documents in support of their respective positions. The Pharmacy complied with the directions and filed a brief submission and statement of evidence of Mr George Kakafikas, the proprietor, together with various documents. Ms Porteous filed only a bundle of payslips showing her post-dismissal earnings.

[4] Due to Ms Porteous’ failure to comply with the Commission’s directions, the matter was listed for a non-compliance telephone hearing and allocated to my chambers. I conducted the proceeding on 6 September 2019. When contacted by my associate at the commencement of the proceeding, Ms Porteous stated that she thought the matter had been listed for earlier in the day and that she was now too busy to attend. She then hung up. Mr Kakafikas participated in the hearing on behalf of the Pharmacy and made an oral application for the Commission to exercise its power under s 399A of the Act to dismiss Ms Porteous’ application on the basis that she had failed to attend a hearing conducted by the Commission and had failed to comply with directions of the Commission (s 399A(1)(a) and (b)). I accepted this application and waived formal requirements under the Fair Work Commission Rules 2013 (see rule 6).

[5] The Commission wrote to Ms Porteous later that day to advise her that the Pharmacy had made an application under s 399A and directed her to file submissions providing reasons as to why the Commission should not dismiss her application under that provision by 12.00pm on Tuesday 10 September 2019. Ms Porteous did not comply with this direction.

[6] On 11 September 2019 my associate wrote to the parties and confirmed that the Pharmacy’s jurisdictional objection to the unfair dismissal application would, as previously listed and advised, be heard by telephone at 9.30am on Friday 13 September 2019, and that the Pharmacy’s application under s 399A to dismiss the unfair dismissal application would be heard at the same time. The parties were directed to participate in the proceedings and were advised that if they did not do so I proposed to proceed to make a determination based on the material before the Commission.

[7] I conducted the proceeding on 13 September 2019 as a recorded conference. Mr Kakafikas participated in the proceeding on behalf of the Pharmacy. Ms Porteous could not be contacted. At the conclusion of the proceeding I advised Mr Kakafikas of my decision to uphold the Pharmacy’s jurisdictional objection on the basis that Ms Porteous had clearly not served the minimum employment period, and that Ms Porteous’ unfair dismissal application was therefore dismissed. I stated that I would issue brief written reasons for my decision, which are as follows.

Minimum employment period

[8] The Commission can only order an unfair dismissal remedy if the applicant was a person ‘protected from unfair dismissal’ (s 390). This in turn requires the person to have completed a period of employment that is at least the minimum period of employment (s 382(a)). Section 383 provides that the minimum employment period for a ‘small business employer’ is one year and otherwise it is six months.

[9] Section 23 provides that an employer is a ‘small business employer’ at a particular time if it employs fewer than 15 employees at that time. For the purpose of calculating the number of employees employed at a particular time, all employees of the employer are counted, including the person who was dismissed. However, casual employees are not to be counted unless at the relevant time they had been employed by the employer on a ‘regular and systematic basis’ (s 23(2)(b)). Employees of associated entities of the employer are also to be included (s 23(3)).

[10] The Pharmacy filed a list of the people it says were employed by it at the time of Ms Porteous’ dismissal, which comprised six permanent part-time employees and two casual employees who were engaged on a regular and systematic basis. The Pharmacy also noted one non-regular casual employee who was engaged on a variable roster for three months ending in July 2019. I asked Mr Kakafikas whether there were any associated entities of the Pharmacy that employed employees. He replied that there were no such entities, and confirmed that the only employees of the Pharmacy were those identified in its written materials. I accept Mr Kakafikas’ statements. They accord with the payment summaries and other documents submitted by the Pharmacy to the Commission.

[11] The total number of persons employed by the Pharmacy for the purpose of s 23 of the Act, which includes Ms Porteous, was nine. I find that the Pharmacy was a small business employer at the relevant time. The minimum employment period that Ms Porteous would need to have served before being able to bring an unfair dismissal application against the Pharmacy is one year.

[12] In her unfair dismissal application form, Ms Porteous states that she commenced working for the Pharmacy on 13 October 2018 and was dismissed on 21 June 2019, a period of a little over eight months. The Pharmacy agrees that this was the period during which Ms Porteous worked at the pharmacy. Clearly therefore Ms Porteous has not served the minimum employment period of one year. The Pharmacy’s jurisdictional objection must therefore be upheld.

[13] In light of this conclusion, it is not necessary for me to deal with the Pharmacy’s application under s 399A. Had I done so however, I would have concluded that the circumstances in s 399A(1)(a) and (b) were each engaged, and that it would be appropriate that I exercise my discretion to dismiss the unfair dismissal application. Ms Porteous has twice failed to comply with directions to file material, and twice failed to attend a hearing or conference conducted by the Commission.

[14] I find that Ms Porteous has not served the minimum employment period. For this reason she is not a person protected from unfair dismissal. Ms Porteous’ unfair dismissal application is therefore dismissed.

Failure to prosecute claim

[15] I wish to comment on Ms Porteous’ failure to prosecute her claim against the Pharmacy.

[16] 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.

[17] 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.

[18] 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.

[19] 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.

DEPUTY PRESIDENT

Appearances:

Mr Kakafikas for the Yarra Glen Pharmacy

Hearing details:

2019

Melbourne (by telephone)

13 September

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