[2019] FWCFB 2925
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s 604 - Appeal of decisions

John Cole
v
Roy Hill Station Pty Ltd T/A Roy Hill Station
(C2019/899)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT SAMS
COMMISSIONER SIMPSON

SYDNEY, 3 MAY 2019

Application for permission to appeal and appeal of a decision and order of Deputy President Binet in matter U2018/10397 – ‘strike out’ application – practice and procedure – whether applicant unreasonably failed to comply with Commission directions – s 399A of the Act – failure to give sufficient weight to applicant’s explanation – denial of procedural fairness – discretion miscarried – substantial injustice – permission to appeal granted – appeal upheld – Decision quashed – matter remitted to another Member of the Commission.

INTRODUCTION

[1] Mr John Gerard Cole (the ‘appellant’) has filed an application, pursuant to s 604 of the Fair Work Act 2009 (Cth) (the ‘Act’) for permission to appeal and appeal of a decision and order of Deputy President Binet on 18 January 2019 ([2019] FWC 281 (the ‘Decision’) and PR703934 (the ‘Order’)). Shortly stated, the Deputy President dismissed the appellant’s unfair dismissal application against Roy Hill Station Pty Ltd T/A Roy Hill Station (the ‘respondent’ or ‘Roy Hill Station’), pursuant to s 399A(1)(b) of the Act, on the basis that she was satisfied the appellant had unreasonably failed to comply with the Commission’s directions in relation to his unfair dismissal application.

[2] The appeal was listed for hearing as to both permission to appeal and appeal before the Full Bench in Sydney/Brisbane on 5 March 2019, with video connection to Perth. Earlier, on 1 March 2019, the Presiding Member’s Chambers received an email from the respondent’s legal representatives, Hotchkin Hanly Lawyers in Perth, seeking an adjournment of the appeal, as it had only recently been made aware of the appeal and had been unable to properly advise its client in time. The Vice President’s Chambers informed the parties that the appeal would proceed on 5 March 2019 and any preliminary or adjournment application would need to be made to the Full Bench on that day. Later that evening, Ms C Meighan of Hotchkin Hanley Lawyers emailed as follows:

‘I am instructed that my client will not be making any application for representation or an adjournment of the hearing on Tuesday. I am also not instructed to appear at the hearing. My client will await and of course abide by the Commission’s directions on the appeal.’

[3] Accordingly, on 5 March 2019, the Full Bench proceeded to hear the appeal, ex parte. The appellant appeared unrepresented by video link from Perth and made short oral submissions.

THE DECISION

[4] After setting out a short background to the unfair dismissal application and identifying the respondent’s two jurisdictional objections; namely, the appellant was not dismissed and if he was, the dismissal was consistent with the Small Business Fair Dismissal Code (the ‘Code’), the Deputy President referred to a conference of the parties on 5 December 2018. The matter was not able to be resolved at the conference and the Deputy President issued detailed directions in preparation for a hearing of the jurisdictional objections on 24 January 2019.

[5] However, following a request from the respondent’s Solicitor and the consent of the appellant the directions were extended due to the Christmas and New Year period. The amended directions were as follows:

[1] On 9 October 2018, Mr John Cole (Cole) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Roy Hill Station Pty Ltd T/A Roy Hill Station (Roy Hill Station).

[2] On 18 October 2018, Roy Hill Station lodged a Form F3 Employer Response to the Application which indicated that Roy Hill Station was a small business for the purposes of the FW Act.

[3] On 20 November 2018, the parties attended a telephone conciliation with a staff conciliator, but the issues in dispute could not be resolved. The Application was then allocated to Deputy President Binet.

[4] The parties attended a conciliation conference before the Deputy President on 5 December 2018, but the issues in dispute could not be resolved.

[5] Roy Hill Station have raised two jurisdictional objections to the Application. The first of these objections being that Mr Cole was not dismissed. The second objection being that if Mr Cole was dismissed that the dismissal was consistent with the Small Business Fair Dismissal Code (Jurisdictional Objections).

[6] A business is a small business employer if it employed less than 15 employees immediately before the dismissal or at the time notice of dismissal was given, whichever is the earlier.

[7) In light of this, the Application is listed for hearing and determination by way of a Hearing in Perth before Deputy President Binet at 10am on 24 January 2019.

[8] If an earlier hearing date becomes available, the hearing date may be changed, giving the parties at least seven (7) days' notice of the earlier date.

[9] On 12 December 2018 the parties were issued with directions for the filing of materials (Directions). The Directions have been varied and the parties are now required to comply with the following amended directions.

[10] Should the parties prefer that the matter be heard by way of a Determinative Conference instead of a hearing, a request should be made in writing to chambers.binet.dp@fwc.gov.au by close of business, Thursday 10 January 2019.

[11]The FWC DIRECTS Mr Cole to file in the FWC, and serve on, Roy Hill Station by close of business, Monday 14 January 2019:

•an outline of submissions in relation to the Jurisdictional Objections and merits of the Application;

•a signed and dated witness statement for any witness to be called in relation to the Jurisdictional Objections and merits of the Application;

•a copy of any authorities on which he relies in relation to the Jurisdictional

Objections and merits of the application; and

•a copy of any document upon which he relies in relation to the Jurisdictional

Objections and merits of the Application.

[12] The FWC DIRECTS Roy Hill Station to file in the FWC, and serve on Mr Cole, by close of business, Monday 14 January 2019:

• an outline of submissions in relation to the Jurisdictional Objections and the merits of the Application;

• a signed and dated witness statement for any witness to be called in relation to the

Jurisdictional Objections and merits of the Application;

• a copy of any authorities on which Roy Hill Station relies in relation to the

Jurisdictional Objections and merits of the Application; and

• a copy of any document upon which Roy Hill Station relies in relation to the

Jurisdictional Objection and merits of the Application.

[13] The FWC DIRECTS Mr Cole and Roy Hill Station to file in the FWC, and serve on each other any submissions and materials in reply by close of business, Thursday 17 January 2019.

[14] An explanation of the terms ‘outline of submissions’ and ‘witness statement’ is attached.

[15] The FWC DIRECTS Mr Cole and Roy Hill Station to jointly prepare and file in the FWC an Agreed Statement of Facts which will be admitted into evidence and considered not in dispute by no later than close of business, Thursday 17 January 2019. The Agreed Statement of Facts should identify the facts in agreement, and separately, those facts in dispute which require resolution in the determination of the Application. Having been admitted into evidence, it is not necessary for those facts to be adduced as part of the Hearing.

[16] If either party seek to be represented at the oral Hearing by a lawyer or a paid agent, a brief submission should be made in writing to chambers.binet.dp@fwc. gov.au and a copy forwarded to the other party by close of business, Monday 14 January 2019. Any submissions with respect to representation should address the provisions of s.596(2) of the FW Act. A copy of this section is attached.

[17] In the event that any request for representation is opposed, a brief written submission in this respect should be provided to the Chambers' email address and a copy forwarded to the other party by close of business, Thursday 17 January 2019.

[18] The parties must notify each other and the FWC which, if any, witnesses are not required for cross examination by close of business Thursday 17 January 2019. All other witnesses must attend the Hearing in person from the listed date and time for the hearing until discharged.

[19] If the parties believe further conciliation before myself or another FWC Member would be of assistance, a request should be made in writing to chambers.binet.dp@fwc.gov.au, by no later than close of business, Thursday 10 January 2019.

[20] Compliance with these directions is mandatory and a failure to comply may disadvantage the party concerned.

[21] Any documents to be filed with the FWC or any enquiries with respect to these directions should be addressed to chambers.binet.dp@fwc.gov.au

[6] Attached to these directions were a three page Information Guide on Preparing Documents and a three page Unfair Dismissal Checklist. The respondent filed its submissions and evidence by COB Monday, 14 January 2019, but no submissions were received from the appellant by that date, nor had he made a request for an extension of time.

[7] The next day, 15 January 2019 at 17:11, the Deputy President’s Chambers emailed the parties, noting the appellant’s failure to comply with the amended directions and inviting the respondent to apply by noon the following day (16 January 2019) for the substantive application to be dismissed; effectively a ‘strike out’ application. The appellant was invited to make written submissions on the ‘strike out’ application by noon on Thursday 17 January 2019. The parties were further to advise if they wished to make oral submissions in relation to the ‘strike out’ application. At 18.22, on Tuesday 15 January 2019, the appellant advised the Deputy President’s Chambers that he did not have legal representation and had mistakenly overlooked the direction’s deadline and he wished to make oral submissions. He also advised that he would have all his materials for his substantive application filed by noon the next day. We set out the relevant email exchanges between the Deputy President’s Chambers and the appellant below:

Dear Mr Cole,

Directions were issued with respect to your unfair dismissal application on 19 December 2019. Paragraph [11] of the Amended Directions required you to file by close of business Monday, 14 January 2019, the various materials in support of your application.

I note we have not yet received any documentation from you. The Respondent (Roy Hill) is therefore invited to have your application dismissed pursuant to section 587 of the Fair Work Act 2009 (Cth).

Section 587 of the FW Act provides as follows:

To make its application, Roy Hill should complete a Form F1, setting out the reason/s why the application should be dismissed, and any evidence or authorities upon which they rely. The Form F1 application should be forwarded to Chambers and copied to Mr Cole, by noon Wednesday, 16 January 2019.

Mr Cole is invited to make submissions providing reasons why FWC should not dismiss his application and evidence or other documentary material supporting those reasons. This material should be forwarded to Chambers and Roy Hill by noon on Thursday, 17 January 2019.

If the parties file material by the due date, the FWC will consider the submissions and may deal with the application on the papers. If either party wishes to also make oral submissions, they should advise Chambers by 3pm on Thursday, 17 January 2019.

Mr Cole, if you do not intend to comply with the directions above, please file a Form F50 Notice of Discontinuance (a partially completed Form F50 is attached for your convenience). Please be advised that if you do not file your submissions and evidence as to why your application should not be dismissed by noon Thursday, 17 January 2019, your application may be dismissed.

Thank you.

Dear Mrs Barrington,

I wish to apologise for my oversight and any inconvenience caused to the Commission.

It was my belief that my documents were to be submitted by Thursday the 17th.

I do not have legal representation and request that this be taken into consideration by the Commission.

I can have all my documents made available to the Commission and Hotchkin Hanly by midday tomorrow (Wednesday 16th) if this is of any consolation.

Additional oral submissions would be advantageous and I request the Commission to allow for this to take place.

It has been my intention to have these proceedings dealt with as soon as possible, as has been previously stated.

Regards

John Cole

[8] On 16 January 2019, the respondent duly filed the ‘strike out’ application and the same day the appellant filed his materials in the substantive application.

[9] At [18]-[19], the Deputy President set out the appellant’s explanation for the late filing of his materials:

[18] In response to the Dismissal Application Mr Cole submitted that the Application should not be dismissed because his oversight regarding the filing of his materials occurred because his infant son born on 23 November 2018, had been diagnosed with a condition which required surgery and that a 50% drop in income prevented him obtaining legal representation.

[19] In response to a request from Chambers to provide evidence in support of his submissions Mr Cole filed four documents indicating that his son had medical appointments on 21 December 2018, and 9 January 2019, and that a further appointment was scheduled for 23 January 2019. Mr Cole submitted that a further reason for his delay in filing was that his wife had been unable to drive for six weeks following the birth.

[10] Despite the appellant having made a request for an adjournment to the next day due to work commitments and the short notice of the ‘strike out application’ being listed at 3pm on Thursday 17 January 2019, he provided additional oral submissions, as recorded by the Deputy President at [20]:

[20] During a telephone hearing convened to allow Mr Cole to make oral submissions in relation to the dismissal application he expanded on his reasons for his failure to file his materials by the due date. The additional reasons provided by Mr Cole were that his wife was not working and that he did not intend to delay the proceedings. He also submitted that it would be unfair for the Application to be dismissed given that the Roy Hill had been granted an extension to file its materials in the Amended Directions.

[11] After setting out the text of s 399A of the Act, the Deputy President concluded:

[22] The reasons provided by Mr Cole for the delay in filing his materials, namely that his wife recently gave birth and that his son was unwell and was required to attend two medical appointments, was known to him in advance of the date that his materials were due. If those events posed a difficulty for him filing his materials he could have informed Chambers in advance of the due date for his materials and sought an extension for the filing of his materials.

[12] At [26] and [27], the Deputy President was critical of the applicant for not filing his materials at any time in the four weeks prior to when the directions were due to be complied with (14 January 2019). It was suggested that the appellant had only filed his material when he was informed of the ‘strike out’ application. The Deputy President concluded at [28]-[29]:

[28] Based on the material filed by the parties, I am satisfied that Mr Cole has unreasonably failed to comply with directions issued by the FWC in relation to his Application.

[29] On the application of Roy Hill Station and in the exercise of my discretion under section 399A of the FW Act, I have decided to dismiss the Application. An order to this effect [PR703934] will be issued with this decision.

GROUNDS OF APPEAL

[13] Given the appellant was unrepresented it is understandable that his grounds of appeal and reasons why permission to appeal should be granted, were intermingled with his written submissions in the appeal. Nevertheless, we apprehend that the appellant’s grounds of appeal may be distilled to five main issues.

[14] Firstly, that the Deputy President failed to give adequate consideration to the circumstances as to why his substantive submissions were a day late, being:

The appellant put that all these circumstances constituted ‘exceptional circumstances’; see: Galea v Billabong Custom Caravans Pty Ltd [2016] FWC 8611.

[15] Secondly, despite the respondent being granted two earlier lengthy extensions of time, when he had simply wanted his matter to be heard as quickly as possible, he was given less than two hours’ notice of a teleconference at 15:00 on 17 January 2019, which determined the ‘strike out’ application. The listing was in circumstances where the Deputy President knew he had a casual work engagement that day, commencing at 14:59. As a result, he had lost remuneration and had inadequate time to prepare for the hearing.

[16] Thirdly, it was wrong and unfair for the Deputy President to conclude he had only filed his substantive submissions when he became aware of the ‘strike out’ application. He had been invited to put submissions by 12:00 Wednesday 16 January 2019 and 15:00 Thursday 17 January. He had met these deadlines, even after having received a confusing email from the Deputy President’s Chambers at 15:03 on 16 January 2019 seeking the submissions which he had already filed at 11:52 that day.

[17] Fourthly, his substantive application should not have been dismissed because he had simply overlooked the deadline date of 14 January 2019 and had mistakenly believed the date for filing was the original date, 17 January 2019. This date was noted by the Deputy President at [8] of the Decision:

[8] The parties were advised that in light of the impending Christmas holiday period that they could apply for the Directions to be varied by consent to provide for filing dates after 1 January 2019, provided that all submissions and evidence, including any submissions and evidence in reply were filed by 17 January 2019. The parties were informed that materials must be filed strictly in accordance with the revised filing dates because the Hearing would proceed as listed on 24 January 2019, in order to meet the FWC’s timeliness benchmarks set to ensure the FWC discharges its statutory obligation to hear and determine matters expeditiously. (our emphasis)

As the appellant was unrepresented, a simple oversight by an unrepresented applicant, which resulted in the dismissal of his application, would discourage other unrepresented persons from pursuing their rights under the Act.

[18] Fifthly, it would be in the interests of justice for the appellant to have the opportunity to have his case heard and determined by the Commission on its merits.

[19] As earlier noted, the respondent put no submissions in the appeal.

CONSIDERATION

Appeal principles

[20] An appeal under s 604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker; s 607(2) of the Act; see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per: Gleeson CJ, Gaudron and Hayne JJ. There is no right to appeal and an appeal may only be made with the permission of the Commission.

[21] This appeal is one to which s 400 of the Act applies. Under section 400, the Commission must not grant permission to appeal from a decision made by the Commission in relation to unfair dismissal, unless it considers it in the public interest to do so. An appeal of an unfair dismissal decision involving a question of fact can only be made on the ground that the decision involved a significant error of fact.

[22] In Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [43], Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s 400 as ‘a stringent one’.   The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment; see: O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]. In GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [27] a Full Bench of the Commission identified some of the considerations that may attract the public interest:

“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.”

[23] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error; see: Wan v AIRC (2001) 116 FCR 481 at [30]. However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal; see: GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].

[24] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal; see: Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].

[25] We consider that this appeal raises important issues in respect to the case management of unfair dismissal applications under Part 3-2 of the Act; specifically, in relation to the ‘strike out’ powers of the Commission under s 399A. In addition, the Decision disclosed jurisdictional error in that the appellant was denied procedural fairness and discretionary error of the House v King kind; see: House v King (1936) 55 CLR 499. The outcome resulted in an injustice being occasioned on the appellant when his unfair dismissal application was ‘struck out’. Further, in our view, the Decision is disharmonious with other comparable decisions of the Commission. Accordingly, we grant permission to appeal, uphold the appeal and quash the Deputy President’s Decision and Order. These are our reasons.

Other statutory provisions and applicable principles

[26] The Objects of Part 3-2 – Unfair Dismissal of the Act are as follows:

381 Object of this Part

(1)  The object of this Part is:

(a)  to establish a framework for dealing with unfair dismissal that balances:

(i)  the needs of business (including small business); and

(ii)  the needs of employees; and

(b)  to establish procedures for dealing with unfair dismissal that:

(i)  are quick, flexible and informal; and

(ii)  address the needs of employers and employees; and

(c)  to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2)  The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.

[27] Section 577 of the Act sets out the more general functions and powers of the Commission as follows:

577 Performance of functions etc. by the FWC

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.

[28] For completeness, one of the primary Objects of the Act at s 3(a) states:

providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia's future economic prosperity and take into account Australia's international labour obligation.

[29] The Commission’s power to dismiss an application are set out generally at s 587 of the Act and specifically in respect to unfair dismissal applications under s 399A. We set out these sections below:

SECTION 587

Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC 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), the FWC 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) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

SECTION 399A

Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[30] The Explanatory Memorandum to the 2012 amendments to the Act in respect to the introduction of s 399A reads:

161.     Item 2 inserts a new section 399A to enable the FWC to dismiss an unfair dismissal application where the FWC is satisfied that the applicant has unreasonably:

•         failed to attend an FWC conference or hearing relating to the application

•         failed to comply with an FWC direction or order relating to the application, or

•         failed to discontinue the application after a settlement agreement has been concluded.

162.     The power to dismiss an unfair dismissal application in these circumstances is not intended to prevent an applicant from robustly pursuing a legitimate unfair dismissal claim. Rather, the amendment is intended to address the small proportion of applicants who may pursue claims in an improper or unreasonable manner. This amendment responds to Panel recommendation 42.

163.     In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant. Examples of when the FWC may exercise its discretion to dismiss an application under these provisions may include where:

•         an applicant fails to attend an FWC proceeding relating to the matter without providing prior advice and/or without any reasonable excuse for their failure to attend, or

•         an applicant continues to pursue an unfair dismissal application despite a settlement agreement having been concluded by the parties.

[31] The Courts have long held that the power to dismiss a substantive application should only be exercised cautiously and sparingly; a fortiori where, as here, the appellant has sought orders for relief for his alleged unfair dismissal. This is so because it results in the complete extinguishment of an applicant’s right to have his/her application for relief orders under beneficial legislation, heard and determined according to law. In short, the application is dismissed before an applicant has had his/her ‘day in court’, or as the appellant pleaded, he just wanted his case heard. In General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at para [8] Barwick CJ said:

8. The plaintiff rightly points out that 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. I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to Order 26, r. 18, were the suggested source of authority to deal summarily with the claim in question. 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 p129)

[32] In Micheletto v Korowa Anglican Girls’ School [2003] AIRC 1391 [PR940392], the Full Bench; per: Giudice J, Hamilton DP and Deegan C, albeit under the Workplace Relations Act 1996 (the ‘WR Act’) under the heading ‘Right to a Hearing’, said at [14]:

[14] It is implicit in the statutory provisions which we have referred to that once an applicant has elected to have his or her application determined by arbitration he or she acquires a right to have the case heard. There is a corresponding duty in the Commission to hear the applicant's case. The nature of the applicant's right is, in the time-honoured phrase, a right to their day in court. The right to a hearing is not unqualified. Circumstances may render it just that something less than a full hearing is appropriate. For example, the Act specifically provides for summary dismissal of an application if there is clearly no jurisdiction (s.170CEA) or if the applicant fails to prosecute its case (s.170CIB). There may be other circumstances in which an application might be dismissed without a full hearing and without infringing the rules of procedural fairness. It is necessary to explore in some detail what those circumstances might be.

[33] In Ghalloub v AON Risk Services Australia [PR956665], the Full Bench, also under the WR Act, considered the failure of an applicant to comply with directions for the filing of materials for hearing. At [23] the Full Bench said:

[23] We take as the starting point the proposition that an applicant pursuant to s.170CE is entitled to have his or her case heard and that there is a corresponding duty upon a member of the Commission to whom an application has been allocated to hear the application. The right to a hearing is qualified by the terms of the Act, e.g. ss.170CEA and 170CIB, and by the operation of principles relating to the summary dismissal of an application in response to a submission by the respondent that there is no case to answer. In this case the Senior Deputy President dismissed the appellant's case for want of prosecution. It is clear from the terms of the decision that in the Senior Deputy President's opinion the appellant's failure to comply fully with the Commission's directions required that the proceedings be dismissed. This appeal therefore raises for consideration a further possible qualification upon the right of an appellant to have his or her case heard and upon the duty of the Commission to hear the case, a qualification arising from a failure to comply with procedural directions.

See also: Townsley v State of Victoria [2013] FWCFB 5834 and more recently Loi Toma v Workforce [2018] FWCFB 5811 and Bibawi v Stepping Stone Clubhouse [2019] FWCFB 1314.

[34] Given the facts and circumstances before the Deputy President and the dismissal of the appellant’s unfair dismissal application with the consequent extinguishment of his presumptive rights to have his case heard and determined by the Commission, we are satisfied the Decision is inconsistent with the Objects of the Act and the principles applying to ‘strike out’ applications. It resulted in an injustice for which appellate intervention is necessary.

[35] While the Commission’s powers to dismiss an unfair dismissal application under s 399A are exercisable upon ‘application by the employer’, the section does not limit when the Commission may dismiss an application under s 587 of the Act. We do not consider the administrative process prior to the s 399A application being made, should ordinarily involve the Commission ‘extending an invitation’ to the employer to do so. In our view, this practice is undesirable and should be avoided. It might lead to a perception that the Member is encouraging the employer to take the initiative in filing the s 399A application, with an expectation of it being successful. The notion of ‘inviting a person to do something’, generally implies that accepting the invitation will result in a positive experience or outcome for the invitee. We are fortified in this observation by the definition of ‘inviting’ in the Macquarie Concise Dictionary 5th Edition; being an adjective that ‘invites; especially attractive, alluring or tempting’.

[36] We would discourage the practice of ‘inviting’ the employer to file a s 399A application, very shortly after a direction’s deadline not being met, and without taking into account any explanation before doing so. Such a practice should be eschewed.

[37] This conclusion reinforces the cautionary approach the Commission must adopt in not acting too hastily when deciding whether to dismiss substantive applications made under beneficial legislation, such as the Fair Work Act. We accept that every member of the Commission is entitled to, and would be expected to adopt his or her own preferred case management processes. We stress that our decision should in no way be viewed as directing or fettering a Member’s discretion in this respect. We note that the respondent was legally represented at all relevant times. It is entirely appropriate for the Commission to identify and explain to an unrepresented litigant their rights under the Act. However, it is a different matter to ‘invite’ that person to exercise those rights, particularly where that party is legally represented.

[38] It is well established that Members of the Commission are obliged to observe procedural fairness in carrying out their functions under the Act; see: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 (‘Abigroup’) at [118]. Procedural fairness is a component of natural justice. It requires, inter alia, that the Commission ensure that each party is given a reasonable opportunity to present its case see: Abigroup at [118]. In Abigroup, Katzmann and Rangiah JJ explained at [125] what is meant by a reasonable opportunity to present a case:

What will constitute a reasonable opportunity for a party to present his or her case in a given situation depends upon the whole of the circumstances, including the nature of the jurisdiction exercised and the statutory provisions governing its exercise. Procedural fairness requires that the statutory power be exercised fairly: that is, in accordance with procedures that are fair to each party in light of the statutory requirements, the interests of the parties and the interests and purposes, whether public or private, which the statute seeks to advance or permits to be taken into account as legitimate considerations.

[39] A refusal to grant an adjournment may constitute procedural unfairness. Again, in Abigroup, Katzmann and Rangiah JJ addressed this issue at [120] and in doing so cited the following passage from the decision of the English Court of Appeal in R v Thames Magistrates’ Court, Ex parte Polemis [1974] 2 All ER 1219, 1223:

But of the versions of breach of the rules of natural justice with which in this court we are dealing constantly, perhaps the most common today is the allegation that the defence were prejudiced because they were not given a fair and reasonable opportunity to present their case to the court, and of course the opportunity to present a case to the court is not confined to being given an opportunity to stand up and say what you want to say; it necessarily extends to a reasonable opportunity to prepare your case before you are called on to present it. A mere allocation of court time is of no value if the party in question is deprived of the opportunity of getting his tackle in order and being able to present his case in the fullest sense.

[40] Added to the weight of this authority, a Full Bench of the Commission in City of Stirling v Mr Kevin Emery [2018] FWCFB 2279 considered the consequences of a failure to afford procedural fairness and said:

[37] In Stead v State Government Insurance Commission the High Court stated that “not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial.” The Court noted that it is relevant to consider whether further information that might have come before the Court if natural justice had been afforded would have made any difference. The Court went on to state:

“Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. …It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact.” 

[38] In our view, these observations are relevant to the approach of a Full Bench of the Commission in considering a contention on appeal that a party has been denied procedural fairness, this being a component of natural justice.’

[41] It is evident from the timeline of events that, 24 hours after the amended directions deadline, the Deputy President invited the respondent to file a ‘strike out’ application at the same time as she requested the appellant provide an explanation for his failure to comply, and without waiting for his explanation. The Deputy President then proceeded to hear the ‘strike out’ application when the appellant had provided an explanation (although clearly not accepted) and had regularised his conduct by compliance with the amended directions; albeit, two days late. In fact, the appellant had complied with the amended directions by the time the Deputy President heard the ‘strike out’ application on 17 January 2019.

[42] It would seem to us that there was a tight timeframe between COB Monday, 14 January 2019 (when the appellant had not complied with the amended directions), and the determinative conference at 15:00 on Thursday, 17 January 2019. It is not apparent why it was necessary to deal with the s 399A application with such an expedition, when by the time of the telephone determinative conference on Thursday, 17 January 2019, the appellant had regularised his conduct by filing his material at noon the day before and was required, at very short notice, to prepare and address the s 399A application by telephone, when he was at work, and despite having requested a short adjournment to put oral submissions against the dismissal of his application. There was no prejudice to either party in being able to properly prepare for, and address an important matter with serious implications; namely, the extinguishment of the statutory rights of the appellant. It was not an application of an interlocutory or preliminary nature. We consider the Deputy President should have provided a reasonable opportunity for the appellant to prepare for, and put his case in opposition to his application being dismissed. This was a denial of procedural fairness which resulted in an injustice to the appellant. The denial of procedural fairness was a jurisdictional error.

[43] We accept the appellant’s submissions that he was stressed and confused as to what was expected of him in complying with the Commission’s directions. This was no doubt exacerbated by his personal and family circumstances. Given the history of the matter, it cannot be said that the appellant is a dilatory litigant, who wilfully and/or carelessly ignored the directions of the Commission. He was not in the category of applicant which the Explanatory Memorandum described as ‘the small proportion of applicants who may pursue their claims in an improper or unreasonable manner’.

[44] We earlier set out [8] of the Decision. We make two observations about this passage. Firstly, while the Commission has internal timeliness benchmarks for the publication of reserved decisions, there are no timeliness benchmarks or statutory command requiring the listing of a hearing (or determinative conference in this case) of a ‘strike out’ application, the day after its filing. Secondly, while it is accepted that the Commission is required by s 577 of the Act to exercise its functions and powers ‘quickly, informally and avoiding unnecessary technicalities’, this imperative can never be at the expense of ensuring natural justice is afforded to all parties in the proceeding. A failure to do so will constitute a jurisdictional error. That said, it is plain that a decision of the Commission under s 399A of the Act involves an exercise of discretion. However, that discretion may miscarry where a material consideration is ignored, or not taken into account, or the decision is influenced by extraneous considerations in the exercise of discretion.

[45] In our opinion, the Deputy President’s discretion miscarried when she rejected the appellant’s explanation for his late filing; being primarily due to his infant son having been diagnosed with a condition which required open-heart surgery. The Deputy President rejected this explanation as the appellant’s materials were due when he had known of his son’s condition and medical appointments, and he should have sought an extension of time, if he was facing any difficulty in that regard.

[46] The Deputy President at [26] criticised the appellant for not filing his material in the four weeks prior to the due date – 14 January 2019. This prior period included the dates of the appellant’s son’s medical appointments. Any parent may understandably be confused, or may not pay sufficient attention to directions of the Commission in circumstances where their newly born child is diagnosed with a serious medical condition, requiring open-heart surgery. With respect, the Deputy President’s highly detailed directions and guidelines, including contingent directions, although well intended as a helpful guide to parties, are so detailed that most unrepresented parties would find them difficult to navigate. This would be particularly so for a person experiencing the difficult circumstances the appellant was facing at the time. In our view, the appellant’s explanation for his relatively minor failure to comply with the directions, including his wife’s inability to drive for six weeks following the birth of their son, was reasonable and understandable in such circumstances. We are satisfied that the exercise of discretion miscarried in this respect, leading the Deputy President into error.

[47] For the aforementioned reasons, we make the following orders:

al of the Fair Work Commission with member's signature,

VICE PRESIDENT

Appearances:

Mr J Cole for himself.

No appearance for the respondent.

Hearing details:

2019.

Sydney with a video link to Perth and Brisbane:

March 5.

Printed by authority of the Commonwealth Government Printer.

<PR707726>