[2013] FWC 7080

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rosa Resta
v
Myer Pty Ltd
(U2012/14128)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 17 SEPTEMBER 2013

Application dismissed pursuant to s.587 of the Fair Work Act 2009.

[1] Ms Rosa Resta (the Applicant) was dismissed from her employment with Myer Pty Ltd (the Respondent) on 24 September 2012. On 2 October 2012, the Applicant lodged an application with the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) seeking a remedy in relation to the dismissal. On 25 July 2013 the Applicant and the Respondent made a settlement agreement dealing with the Applicant’s unfair dismissal remedy application. The Applicant has alleged that since making the agreement the Respondent breached the agreement and so the Applicant would not discontinue her application.

[2] On 28 August 2013 the Respondent applied for an order that the Applicant’s unfair dismissal remedy application be dismissed. The application was said to be made under s.399A and s.587 of the Act.

At the hearing of the Respondent’s application on 3 September 2013 I decided to grant the Respondent’s application pursuant to s.587 of the Act and to dismiss the Applicant’s unfair dismissal remedy application. I issued an order that day (PR541165). These are my reasons for doing so.

Background

[3] Following the lodgement of the unfair dismissal remedy application, the Respondent lodged a jurisdictional objection in its response of 29 October 2012, on the grounds that the application was made out of time and that the Applicant was not dismissed from her employment but rather resigned.

[4] Despite its jurisdictional objection, the Respondent agreed to participate in conciliation.

[5] The application was listed for conciliation by telephone on 1 November 2012, however on the day of the conciliation the Applicant made telephone contact with the Unfair Dismissal Team (the UDT) at the Commission and sought an adjournment because she had a medical appointment. The request was granted and the conciliation was re-scheduled to 8 November 2012. The UDT informed the Applicant that any future adjournment requests had to be made in writing and requested the Applicant provide a medical certificate for her appointment that day. No certificate was received.

[6] On 8 November 2012, the second scheduled conciliation by telephone was unable to proceed as the Applicant could not be contacted despite a number of attempts to make contact by the Conciliator.

[7] The Respondent declined to participate in any further attempts to conciliate the matter and the application was referred to a hearing to determine whether the Applicant should be permitted an additional period within which to lodge her unfair dismissal remedy application.

[8] That hearing proceeded on 1 February 2013 before Deputy President Smith and on 15 March 2013 the Deputy President issued a decision extending time for lodging the Applicant’s unfair dismissal remedy application (PR534782).

[9] The unfair dismissal remedy application was then listed for a jurisdictional and merits hearing on 1 July 2013 before me.

[10] On 10 May 2013, the Respondent filed an additional jurisdictional objection to the application on grounds under s.725 of the Act that the Applicant had made multiple applications. Namely there was an application regarding her dismissal on foot at the Victorian Civil and Administrative Tribunal (VCAT) alleging contravention of the Equal Opportunity Act 2010 (Vic).

[11] As a result, the application was listed for a jurisdictional hearing on 14 June 2013 to deal with the multiple applications jurisdictional objection raised by the Respondent.

[12] On 23 May 2013 the Applicant withdrew her application at VCAT. The Respondent withdrew its multiple applications jurisdictional objection on 30 May 2013 and the jurisdictional hearing listed for 14 June 2013 was vacated.

[13] The proceeding listed for 1 July 2013 commenced as scheduled and both parties attended the Commission on the day. At the commencement of proceedings I granted permission to the Respondent to be represented by a lawyer on the basis that I was satisfied that such representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter. 1 I also determined, after taking into account the views of the parties and the most effective and efficient way to resolve the matter, to proceed to determine the matter in a private conference in accordance with section 390 of the Act.2

[14] During the conference the Applicant commenced to give evidence in support of her unfair dismissal remedy application, however the conference was unable to continue as the Applicant indicated that she would not answer certain questions during cross examination or look at documentary evidence filed by the Respondent because she found this process too distressing. 3 Consequently I adjourned the matter until 29 and 30 July 2013.

[15] In the interim, the parties agreed to face to face conciliation of the matter before Commissioner Lee.

[16] The first scheduled conciliation conference on 8 July 2013 did not proceed as the Applicant called to advise she was ill on the day of the conference. The second conciliation conference scheduled for 22 July 2013 did not proceed as the Applicant advised on the day of the conference that she had a medical appointment that she could not move and was under the misapprehension the conference was being rescheduled. On the third attempt, the conciliation conference proceeded on 25 July 2013.

[17] At the conclusion of the conciliation conference, the parties entered into a written settlement agreement (the Settlement Agreement). 4 It was executed by each party on that day.

The Settlement Agreement provides that the parties agreed to settle the Applicant’s unfair dismissal remedy application on the basis that the Respondent would pay the Applicant $8000 (less applicable taxation) and provide a statement of service. In exchange, the Applicant would file a notice of discontinuance within seven days and release the Respondent from any current and future claims. On 31 July 2013 the settlement payment was made to the Applicant in accordance with the Settlement Agreement. 5

[18] However, on 7 August 2013, the Applicant wrote to the chambers of Commissioner Lee and advised as follows:

‘I have not formally withdrawn this case and I don’t intend to either. I am also not giving the money back either. Myer or someone who works for them have posted the security footage they have on me on you tube. They have since taken it down. Myer have broken the legal agreement. I will continue to move forward with this case to try and get my job back.’

[19] I decided to re-list the matter for 30 August 2013 in order to hear from the parties on the status of the application.

[20] On 28 August 2013, the Respondent filed an application to dismiss the application pursuant to ss.399A and 587(1) of the Act.

[21] I decided to deal with the Respondent’s application at the hearing already scheduled for 30 August 2013. A new notice of listing was sent by my chambers advising the parties of this change.

[22] On the morning of the hearing on 30 August 2013, the Applicant emailed my chambers and requested the hearing be rescheduled as follows:

‘As I am still gathering evidence to help me for this hearing I need to reschdule (sic) todays (sic) hearing for the next available date.’

[23] The Applicant’s email of 30 August 2013 also requested that the matter be heard before ‘a more fairer deputy president as President Gostenik (sic) is certainly not.’ I took this to be an application that I should disqualify myself on the basis of an actual or apprehended bias.

[24] My Associate advised the Applicant by email that the hearing would proceed as scheduled. The Applicant received this email as a further email was sent from the Applicant advising as follows:

‘You please (sic) be advised that I have let you formally know that I needed more time. I will not be there today.’

[25] The Applicant failed to attend the hearing.

[26] At the commencement of the hearing the Respondent submitted that I should proceed to determine its application however I decided to provide the Applicant a further opportunity to attend and to respond to the Respondent’s application to dismiss her application. During the hearing I drew to the Respondent’s attention the effect of Item 11 in Part 6 of Schedule 11 of the Fair Work Amendment Act 2012 on that part of the Respondent’s application made pursuant to s.399A of the Act. In the circumstances the Respondent correctly did not pursue that part application.

[27] I instructed my Associate write to the Applicant on 30 August 2012 and advise firstly, that the matter would be relisted for hearing on 3 September 2013 and secondly, that if she did not attend at this next scheduled hearing the Respondent’s application would be heard and determined in her absence. Correspondence to the Applicant to this effect was dispatched by my Associate by email on 30 August 2013.

[28] The Applicant failed to attend the scheduled hearing on 3 September 2013 and the Applicant did not apply for an adjournment or otherwise communicate with my chambers about that hearing. Nor did the Applicant attend to press her application that I should disqualify myself.

The Respondent’s submissions

[29] The Respondent submits that it fulfilled its obligations under the Settlement Agreement by making the necessary payment and providing the Applicant with a detailed statement of service.

[30] The Respondent asserts that, during the conciliation, Commissioner Lee took great care to ensure that the Applicant understood the Settlement Agreement, including by taking the Applicant through the Settlement Agreement. The Respondent expressly denies any claim that it has breached the Settlement Agreement and states that no one associated with the Respondent has published the CCTV footage.

[31] The Respondent submits that the application should be dismissed as it has no reasonable prospects of success on the basis that the law recognises that if a settlement agreement is reached between the parties, it is a complete answer to the claim. The Respondent asserts that the Settlement Agreement, that was signed and executed by both parties, extinguishes the Applicant’s claim.

Power to dismiss applications

Conduct of hearing in the Applicant’s absence

[32] Before turning to the question of whether the Applicant’s unfair dismissal remedy application should be dismissed, I will deal briefly with my decision to proceed with the Respondent’s application in the absence of the Applicant. A tribunal should take care before deciding to proceed with a matter in the absence of a party whose interests could be affected. It is a course of action which is not readily undertaken. A party must be given a reasonable opportunity to present his or her case, or as is the case in this matter, to present a case in opposition to a course of action proposed by the Respondent. As Deane J observed in Sullivan v Department of Transport: 6

‘...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.’ 7

[33] To similar effect, in Allesch v Maunez 8 Kirby J observed:

‘...it is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interest 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 (all receive the submission 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 opportunity is all that the law and the principal 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 our 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.’ 9

[34] In the present case the Applicant was on notice that the Respondent had made an application seeking a dismissal of her unfair dismissal remedy application. On the morning on which the Respondent’s application was to be heard, the Applicant communicated with my chambers requesting an adjournment. Despite being advised that the hearing would proceed, the Applicant did not attend. She did not communicate with the Respondent about her adjournment application and she did not attend in person to make such an application. Notwithstanding the Applicant’s failure to attend I nevertheless granted an adjournment of the Respondent’s application and fixed a further date for hearing, notice of which was provided to the Applicant. The Applicant was also advised that if she failed to attend the next scheduled hearing of the Respondent’s application, the application would be heard in her absence.

[35] At the scheduled hearing of the Respondent’s application to dismiss on 3 September 2013 the Applicant failed to attend, failed to communicate with the Respondent or my chambers about the hearing and did not make any application for an adjournment or otherwise attempt to explain her absence.

[36] In the circumstances I am satisfied that the Applicant was on notice of the Respondent’s application to dismiss her unfair dismissal remedy application, was on notice that her application would proceed to hearing on 3 September 2013, having previously been adjourned at her request, was on notice about the consequences of a failure to attend the scheduled hearing and failed to provide any excuse for her failure to attend. In my view the Applicant has been given a reasonable opportunity to attend and present her case in opposition to the Respondent’s application. I am satisfied that I should proceed to determine the Respondent’s application in the absence of the Applicant.

Bias

[37] As I indicated earlier in these reasons, I have taken the Applicant’s email to my chambers of 30 August 2013 as an application that I should disqualify myself on the ground of actual or apprehended bias. The Applicant does not advance any grounds upon which it is said that there is actual bias on my part in the conduct of this matter or that a reasonable person might apprehend that there is some bias on my part in the circumstances. The Applicant did not attend the hearing on 3 September 2013 to press her application. The Applicant’s application that I disqualify myself from further hearing the application before me is, in my view, baseless and I refuse to do so.

Consideration of Respondent’s application to dismiss under section 587

[38] As I indicated earlier, the Respondent’s application for dismissal under s.399A of the act is no longer pressed. Section 587 of the Act empowers the Commission to dismiss applications on certain specified grounds. It provides as follows:

‘587 Dismissing applications

(1) Without limiting when FWA may dismiss an application, FWA may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

(2) Despite paragraphs (1)(b) and (c), FWA must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) FWA may dismiss an application:

(a) on its own initiative; or

(b) on application.’

[39] The power of the Commission to summarily dismiss an application should be used sparingly and approached with caution. As Barwick CJ observed in General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others, 10 ‘the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion’.11

[40] His Honour continued:

‘It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “be manifest that to allow them” (the pleadings) “to stand would involve useless expense”.

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or “so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument”; “so to speak apparent at a glance”.

As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 where he says (at p.91):

“A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.”

Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (at p 84), in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.’ 12

[41] In the present matter, the Respondent relies upon the Settlement Agreement to make good its argument that the application for unfair dismissal remedy should be dismissed. There is real substance to this submission. In Australian Postal Corporation v Gorman 13, a case concerning the affect of a binding agreement on the continuation of an unfair dismissal application, Besanko J made the following observation, with which I respectfully concur:

‘An accord and satisfaction extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement. A valid accord and satisfaction in not a discretionary factor relevant to the subsequent litigation of the original claim; it is an answer to the claim.’ 14

His Honour continued:

‘There is nothing in the Act which suggests that an accord and satisfaction should not be recognised. At a general level the object of Chapter 3 Part 3-2 and the general statements of the manner in which FWA is to perform its functions and the matters to which it is to have regard are consistent with the recognition of an accord and satisfaction. Furthermore, the words of subsection 587(1) are wide enough to include the recognition of an accord and satisfaction. As I have said, a valid and effective accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such cause of action is clearly capable of being considered to be frivolous or vexatious or without reasonable prospects of success.’ 15

[42] I am satisfied that there was an agreement reached between the Applicant and the Respondent in full and final settlement of her application as evidenced by the Settlement Agreement executed by the parties on 25 July 2013. I am also satisfied as evidenced by an email from the Applicant to the chambers of Commissioner Lee dated 7 August 2013 that the Applicant understood that the agreement that she entered into was legally binding on her.

[43] This accord and satisfaction has the effect of extinguishing the cause of action that the Applicant would otherwise have had to pursue her unfair dismissal remedy application. To the extent that the Applicant alleges that the Respondent has breached the settlement agreement, such a breach does not enliven the extinguished cause of action. Rather the breach alleged could give rise to a new cause of action for damages based on breach of the Settlement Agreement. But this is not a matter that can be pursued in this Commission, and certainly not by continuing the unfair dismissal remedy application.

[44] Relevantly, s.587(1)(c) directs attention to the substance of an application. A conclusion that a particular application ‘has no reasonable prospect of success’ is one that should only be reached with extreme caution in circumstances where the application is not reasonably arguable. 16 In my view as the Applicant’s cause of action, which is the foundation for her application for an unfair dismissal remedy, has been extinguished, her application is no longer reasonably arguable and is bound to fail.

[45] It follows, in my view, that the Applicant’s application for an unfair dismissal remedy has no reasonable prospect of success and consequently I am satisfied that I should dismiss that application on the grounds set out in s.587(1)(c) of the Act.

Conclusion

[46] Accordingly I dismiss the Applicant’s unfair dismissal remedy application. An order to this effect has previously been issued in PR541165.

DEPUTY PRESIDENT

Appearances:

No appearance for the Applicant.

D Proietto on behalf of Myer Pty Ltd.

Hearing details:

2013.

Melbourne:

July 1.

August 30.

September 3.