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.

For further information please contact:

Michael Byrnes, Partner
Phone: +61 2 9233 5544

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