In Diane Porteous v G. Kakafikas and A.G. Bek partnership t/a Yarra Glen Pharmacy (2019), Fair Work Commission (FWC) Deputy President Alan Colman called to task an employee for wasting the time of the Commission and her employer.

Deputy President Colman said the employee who applied for unfair dismissal remedy in this case “did almost nothing to pursue her claim” other than completing the application form and paying the $73.20 filing fee”.

“She ignored directions of the Commission to file materials. She failed to participate in proceedings. But she did not discontinue the application,” he said.

“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.”

An uneven playing field

Deputy President Colman said the FWC receives many unfair dismissal applications from “non-compliant applicants” which the Commission has to conduct ‘non-compliance’ hearings for.

However, he noted that when respondent employers fail to comply 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,” he said.

But employees who fail to follow through with their unfair dismissal applications don’t face any risk.

Deputy President Colman finds this “completely unacceptable”.

“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,” he said.

“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.”

Federal Government may take action

Federal Attorney-General and Industrial Relations Minister Christian Porter says the Government will consider giving the FWC power to impose penalties on sacked employees who make unfair dismissal claims they fail to properly pursue.

“If someone takes a claim for unfair dismissal to the Commission, it is reasonable to expect that they are serious in that claim and are actually prepared to present their case and co-operate with the requirements of the Commission,” Mr Porter said in a statement to the Australian Associated Press.

“Failure to properly pursue a matter once commenced and without formally withdrawing the claim means wasted resources, funded by the taxpayer – plus an unfair burden on the small business employer that has to spend precious time and money to defend a non-pursued claim to its conclusion.

“Given it is the FWC itself that is raising this as issue for consideration it appears appropriate [for it] to be a part of the upcoming discussion paper on potential reform to the small business fair dismissal code.”

A ‘green light’ for bad bosses

The Australian Council of Trade Unions (ACTU) said that Mr Porter’s proposal “will tip the balance even further towards employers”.

“Imposing new threats of additional costs and fines on people who by definition have already lost their jobs sends a clear signal to bad employers that the government is looking the other way,” the union said in its media release.

ACTU Secretary Sally McManus said “This will be a green light for unfair dismissals with bad bosses emboldened by the knowledge that there are even more hurdles for a worker to jump if they are unfairly dismissed”.

“Working people need effective and accessible legal protection for against unfair dismissal. This is fundamental to job security,” she said.

“This government is taking a hard line against working people with another much softer touch for business. It’s making jobs less secure and that’s making it even harder to end the wage crisis.

“We call on the Minister to abandon this proposal and work constructively to address the serious issues Australia faces with insecure work and a wages crisis entering its seventh year.”