Fair Work Commission proceedings: Head in the sand, or head in the game?

Receiving notice of any legal proceedings is enough to make the blood run cold of most business owners and HR professionals. For many, the process of defending such an application can be time consuming and emotionally taxing.

While much work has been done to simplify and streamline Fair Work Commission processes, employers often find complying with these rules and procedural steps to be quite daunting. In some cases, this can lead to parties becoming disengaged from the proceedings, which only makes things worse for both themselves and the other party.

The advice of experienced professionals can assist greatly in navigating the proverbial minefield that is an unfair dismissal or general protections claim.

In this article we will be examining examples of poor participation by both an employer and an employee in separate Fair Work Commission matters in order to demonstrate the importance of engaging fully with Fair Work Commission processes and the consequences of failing to do so.

The Burdett Property unfair dismissal matter

In Crystal Warnes v Burdett Property Holdings Pty Ltd as Trustee for the Burdett Property Trust T/A Australasian Body Corporate Management [2020] FWC 152 (U2019/7460), Burdett Property Holdings Pty Ltd (Burdett) was ordered to pay $17,196.00 in compensation to an unfairly dismissed former employee, Ms Warnes.

Burdett dismissed Ms Warnes for underperformance, claiming that she demonstrated poor attention to detail, used her personal mobile during work time and was perceived by her co-workers as having a hostile personality.

Ms Warnes filed an unfair dismissal application arguing that Burdett had failed to warn her that such behaviours could result in termination, and argued that many of the grounds of termination relied upon were not factually correct.

Burdett failed to attend the conciliation of the matter, which was then escalated to arbitration by the Commission.

Burdett sought to have the matter heard “on the papers” on the basis that they believed there was sufficient detail in their response to the unfair dismissal application for a decision to be made and that it would be too time consuming for them to also attend a hearing.

This request was denied by the Deputy President on the basis that procedural fairness requires that each party have an opportunity to test the evidence of the other party. In an email to Burdett, Deputy President Lake made it clear that evidence would not be accepted in circumstances where the witness had not attended a hearing to attest to its truth, and to be available for cross-examination.

Burdett changed tack and sought a hearing date months later than the timeline preferred by the Deputy President, arguing that due to the demands of their business they would not be able to make themselves available. Much to Burdett’s frustration, this request was denied.

A hearing date was set by the Deputy President, however Burdett failed to attend the hearing or to seek an adjournment.

A determinative conference was held where the evidence of Ms Warne was taken as being uncontested and the request for compensation as a remedy was granted. By not engaging with the proceedings, Burdett also forfeited the opportunity to advocate for a reduction in the compensation ordered.

Perhaps Ms Warnes’ claim was without merit, as Burdett asserted. We will never know, as by failing to engage with the case as directed by the Deputy President, Burdett forfeited its opportunity to prove their point, and must now suffer the consequences of their chosen course of action.

This case reiterates the importance of engaging fully with Fair Work Commission processes, regardless of whether the business considers the case to be vexatious or frivolous. If a business lacks capacity to defend such a claim personally then they should actively consider the use of legal professionals, as failing to do so can have costly consequences.

The Brazilian Beauty general protections claim

The case above should not be taken as an indicator that only businesses find themselves on the losing side of cases because of a failure to engage. Indeed, a read of the Fair Work Commission’s decisions usually includes a long list of cases dismissed “for want of prosecution” by the employee.

In Mandy Lee Baillie v PJDH Pty Ltd t/a Brazilian Beauty Fairfield [2020] FWC 163 , the employer attended the Commission on multiple occasions to defend a general protections claim made by Ms Baillie. On every occasion, the employee failed to appear.

The employee in this case filed a general protections claim 14 days after the 21-day time limit had expired. The employee claimed that this delay was due to her internet services being disconnected. In materials filed in support of her request for an extension of time, the employee stated that as she suffered from extreme anxiety and agoraphobia she was unable to leave her home in the time required to submit her application.

In response to the request for an extension of time, the employer encouraged the Commission to not allow an extension of time for filing in the absence of any medical evidence supporting the employee’s claims. Further, the employer provided evidence that the employee had, in fact, left the house during this period and tendered as evidence the numerous social media posts about lunches and other social events she had attended. The employer even went so far as to explain that one of the venues she attended, the Breakfast Creek Hotel in Brisbane, had free wi-fi which would have enabled the employee to submit her application on time.

The employee did not attend any of the dates set for hearing or, request an adjournment at any point in time. This placed a significant strain upon the employer who, at all relevant times, was prepared to attend hearings to defend its position. Importantly, this came at a significant cost to the employer. After multiple adjournments and when it became clear that Ms Baillie would not be appearing before the Commission, Deputy President Mansini dismissed the application for want of prosecution.

Where to from here?

It should come as no surprise that any person ignoring the directions of a Member of the Fair Work Commission can expect to be given short shrift, whether they be employer or employee.

In both cases, had the innocent party been legally represented, they likely could have sought costs from the defaulting party, as even though the Fair Work Commission is a “no cost” jurisdiction, this has limits – a party who acts “unreasonably”, including ignoring the directions of the Commission without reasonable excuse, could well find themselves liable for costs.

Employers in particular should be aware that avenues exist to proactively seek the dismissal of deficient applications, however these should only be attempted after obtaining legal advice as such an application brought without good reason can expose the employer to costs.

While not always a solution to the problem, these avenues exist for a reason and can be an effective means of stymying a vexatious claim.

Employers would be well advised to consider the use of legal professionals to help them work through these processes as efficiently as possible while also improving the employer’s prospects of successfully defending a claim.

To speak with one of NRA Legal’s workplace relations specialists today, call 1800 572 679.

By Andrew Piper and Alex Millman, NRA Legal