[2018] FWC 1457 FAIR WORK COMMISSION DECISION



Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Lynlie Cantwell

v

Olympus Medical Centre (Brisbane City) Pty Ltd T/A Olympus Health Group

(U2017/9941)



COMMISSIONER RIORDAN SYDNEY, 26 MARCH 2018

Application for an unfair dismissal remedy – costs application.

[1] Ms Lynlie Cantwell (the Applicant) made application to the Fair Work Commission (the Commission) for an unfair dismissal remedy against Olympus Medical Centre (Brisbane City) Pty Ltd (the Respondent) on 13 September 2017.

[2] The Respondent raised a jurisdictional objection to the application on the basis that it is a small business and that the Applicant’s employment does not satisfy the minimum employment period of 12 months 1, therefore the Applicant is not protected from an unfair dismissal2.

[3] This jurisdictional objection was listed for hearing before the Commission in Brisbane on 8 January 2018. At the conclusion of the proceedings, the Applicant informally withdrew the application. On 9 January 2018, the Applicant filed a Notice of Discontinuance.

[4] On 24 January 2018, the Respondent filed an application for costs against the Applicant in accordance with sections 400A and 611 of the Fair Work Act, 2009 (the Act).

Background

[5] The Applicant was the Director of Synergy Physiotherapy and Pilates (Synergy) prior to 1 November 2016. On 1 November 2016, the Respondent purchased Synergy. The Applicant became an employee and one-third shareholder of the Respondent on this date. The Applicant contends that she was an “employee” of Synergy from 1 July 2015. The Respondent disputes that the Applicant was ever an employee of Synergy.

[6] The Applicant was terminated by the Respondent on 29 August 2017.

[7] Leave was granted in accordance with section 596(2) of the Act to allow the Respondent to be represented by Mr Kidston of Counsel and Ms Sarina Mari Alwi from Rostron Carlyle Lawyers. The Applicant represented herself in the proceedings. I note that the Respondent did not attend the proceedings in person themselves.

[8] On 13 February 2018, the following Directions were issued in relation to the Respondents costs application:

“1.The Applicant (Ms Lynlie Cantwell) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in response to the costs application by no later than 4.00pm on 27 February 2018. 2. The Respondent (Olympus Medical Centre (Brisbane City) Pty Ltd T/A Olympus Health Group) is directed to file with the Fair Work Commission, and serve on the Applicant, any submissions, witness statements and other documentary material the Respondent intends to rely on in response to the Applicant by no later than 4.00pm on 6 March 2018. 3. It is the intention that the Costs’ application will be dealt with on the papers once submissions and reply submissions have been received. Please advise if it is the parties’ preference for the matter to be listed for an attendance hearing.”

[9] On 1 March 2018, my Associate sent an email to the Applicant in the following terms:

“Dear Ms Cantwell, I refer to the attached Directions issued on 13 February 2018. As outlined, you had until 27 February 2018 to file any submissions in relation to the costs’ application filed by the Respondent. To date, you have failed to comply with these Directions. Please confirm via return email if you intend on filing any submissions.”

[10] On 6 March 2018, the Respondent sent the following email to my Chambers:

“Dear… As Mrs Cantwell has failed to comply with the directions imposed by Commissioner Riordan, and such date has lapsed, we wish to confirm that our client, Olympus Medical Centre (Brisbane City) Pty Ltd, intends to rely on the submissions detailed in the Application for Costs dated 23 January 2018 (the Application), and that no further submissions will be filed. Should you require anything further from our client, please do not hesitate to contact us. We await the outcome of the Commissioner in relation to the Application at your earliest [sic].”

[11] On 14 March 2018, the Applicant’s son, Mr Nicholas Cantwell advised the Commission that his mother had sadly passed away. Mr Cantwell advised that his current medical advice was that his mother had been deceased “for some two weeks.”

[12] On 14 March 2018, I was advised by the Solicitor of the Respondent that it still wished for the costs application to be determined. This advice was confirmed by the Respondent, Dr Richard Vickers on 19 March 2018.

Consideration

[13] I have taken into account the comment from the Applicant during the Conference on 8 July 2018 that, if the Respondent sought costs as a result of her discontinuing her application, that she will vigorously oppose the Respondent’s costs application.

[14] Section 577 of the Act states:

Section 577

Performance of functions etc. by FWA

FWA 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.

[15] I have taken this into account.

[16] I have taken into account the definition of the phrase “natural justice” in the Oxford Australian Law Dictionary, which states:

“Natural Justice (procedural fairness, due process) A continuum of common law rights to fair treatment in the course of judicial hearings and administrative decision-making processes, ranging from no protection (peremptory exercise of power) to a full trial, with the overriding consideration being what is fair in all the circumstances. Principles of natural justice have a close historical association with judicial procedures, and a similar duty to act fairly (accord procedural fairness) in the making of administrative decisions has been modelled on, and is analogous to, the rules of natural justice applicable to court cases (Kioa v West (1985) 159 CLR 550). Some rights entail others: e.g. the right to a hearing implies a right to notice of the hearing, and also a right to be heard, in person or by a legal representative; the right to a heating also implies that the hearing should be unbiased. Denial of natural justice that results in detriment to a person’s rights gives the right to a review of the decision. Exclusion of common law natural justice requires clear legislative intent (Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57).” (my emphasis)

[17] The Collins English Dictionary defines natural justice to mean:

“the principles and procedures that govern the adjudication of disputes between persons or organisations, chief among which are that the adjudication should be unbiased and given in good faith and that each party should have equal access to the tribunal and should be aware of arguments and documents adduced by the other.” (my emphasis)

Conclusion

[18] The Applicant gave notice that she would “vigorously defend” any application for costs made by the Respondent.

[19] Tragically and sadly, the Applicant was not able to defend the costs application due to her sudden passing, which I note was around the time that her submissions were due to be filed.

[20] In accordance with the principles of natural justice, the Applicant had a right to be heard on the Respondent’s application.

[21] As a result of the Applicant’s passing, the Commission is not able to determine the current application without denying the Applicant her legal right of natural justice and procedural fairness.

[22] The application for costs is dismissed.

COMMISSIONER

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1 Section 383 of the Fair Work Act, 2009 (the Act)

2 Section 382 of the Act