DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Alemtsehay Mekuria
v
MECCA Brands Pty Ltd t/a Mecca Cosmetica; Debra Kelso; Christine Mantacas; Grace Chiruvu
(C2018/6937)

Appeal against decision [[2018] FWC 6486] of Commissioner Lee at Melbourne on 20 November 2018 in matter number AB2018/124 – adjournment application

[1] On 10 December 2018 Ms Alemtsehay Mekuria lodged a notice of appeal against a decision of Commissioner Lee issued on 20 November 2018 (Decision). 1 The Decision concerned an application made by Ms Mekuria on 5 March 2018 for an order to stop bullying pursuant to s 789FC of the Fair Work Act 2009 (FW Act). The application concerned alleged bullying at Ms Mekuria’s workplace, which is a warehouse operated by MECCA Brands Pty Ltd (Mecca). The persons named in the application as those responsible for the alleged bullying conduct were initially identified as Debra Kelso, Christine Mantacas and Grace Chiruvu, who are all employees of Mecca who worked at the warehouse. However Ms Mekuria during the course of the proceedings abandoned her bullying allegation against Ms Chiruvu.

[2] The Decision records that Mecca had internally investigated Ms Mekuria’s bullying allegations and found that they were not substantiated, but that Mecca had nonetheless implemented a number of initiatives to reduce or eliminate the risk of bullying, including that Ms Kelso and Ms Mantacas had been moved to different work teams and locations and instructed to have no contact with Ms Mekuria. Mecca had also implemented workplace training concerning behavioural standards and the signing of behavioural commitments to support a respectful, safe and cooperative working environment. These changes had arisen out of conferences conducted by the Commissioner and in consultation with Ms Mekuria.

[3] Notwithstanding these initiatives, Ms Mekuria maintained that she remained at risk of bullying at work. The Commissioner determined in the Decision that he was not satisfied that there was a risk that Ms Mekuria would continue to be bullied at work by Ms Kelso, Ms Mantacas or Ms Chiruvu. Insofar as Ms Mekuria had during the course of the proceedings made new allegations of bullying by other persons, the Commissioner indicated in the Decision that these would need to be dealt with by Ms Mekuria in a separate application, although he expressed doubt as to the veracity of these allegations. Because he had found that there was no risk of future bullying by the named individuals, the Commissioner determined that there was no jurisdiction to make an order to stop bullying and dismissed the application.

[4] Ms Mekuria’s notice of appeal did not contain grounds of appeal, nor did it identify the basis upon which permission to appeal was sought. Instead (and notwithstanding that the notice of appeal was lodged within the time period prescribed by r 56(2) of the Fair Work Commission Rules 2013), Ms Mekuria stated under the heading “Extension of time” in the standard-form appeal notice:

“I am in the process of getting assistances to find Representative and Support worker on behalf of me to finalize all question in this Form

Due to unable to pay legal fee I just got Form Fair Work today and have tried to finalize as much as I can to ask kindly Commissioner to extend time.

Currently because of Adverse action taken on me taking my case to Fair work especially from 31rst of August 2018 my response to employer dismissal of my application I am facing difficult time to work and I am on sick leave. My situation has been informed and explained in the past to Fair work during conferences and Hearing.”

[5] On 11 December 2018 one of the Commission’s Registry staff telephoned Ms Mekuria to inform her that her notice of appeal was incomplete, and left a voicemail message requesting a return call. On 13 December 2018 Ms Mekuria returned the call and, in response to advice concerning the incomplete nature of the notice of appeal, said that she had an appointment with a lawyer soon and would lodge a completed notice of appeal. However this was not done.

[6] On 3 January 2019 directions for the hearing of Ms Mekuria’s appeal were issued by the chambers of the presiding member of this bench. These directions relevantly required that Ms Mekuria file and serve an outline of submissions by 5.00pm on 22 January 2019, and that an outline of submissions in reply be filed and served by Mecca by 5.00pm on 11 February 2019. The appeal was listed for hearing at 2.00pm on 18 February 2019.

[7] Ms Mekuria did not file her submissions as directed on or before 22 January 2019. On 22 January 2019 Ms Mekuria sent correspondence to the presiding member’s chambers which stated (verbatim and omitting formal parts):

“I write regarding the above mentioned matter due date 22nd January 2019 of Submissions of documents as outline on AB2018-124 Directions Fair Work Act 2009 s.604 - Appeal of decisions

I have made many attempts to obtain legal advice in relation to my appeal. I would like to engage a solicitor to assist me as that was one of the reason I am still suffering from unfair treatment and straggling to survive unsafe work place.

I have had difficulty finding someone who is able to take my case mostly me being a member of UNION rejected especially from ‘No win, no fee' Lawyers to get lower cost.

Those matter and financial difficulty has caused me delay in completing my paperwork. I am continuing to look for a solicitor to assist me. This is the consequences of reducing working day and hour, As well as a number of sick leave day taken because of health crises directed by bullying, discrimination, threatening, daily warring and intimidation of losing my work.

As previously stated during conferences and Hearing As a result of those challenges I am trying to manage life as much as I can daily in order to obtain my health.

I would be great full if you consider for me to extend time on providing documents requested to the end of February and Notice of Listing to be reschedule thereafter.”

[8] The extension of time to file submissions (and the concomitant adjournment of the hearing date) that was sought by Ms Mekuria was not granted. However, the directions were varied to allow Ms Mekuria to file and serve her submissions by close of business on 30 January 2019, with Mecca to reply by 13 February 2019.

[9] No submissions were filed by Ms Mekuria on or before 30 January 2019. On 31 January 2019 Ms Mekuria sent the following email to the chambers of the presiding member (verbatim and omitting formal parts):

“I apologise to send this email late and also apologise for not sending 5pm

Please kindly accept and pass my letter again to get permission from the Vice President.

Ass stated in my letter my situation need more time on health and fanatically as stated in my letter in my letter.

Apple was lodged as I don't want pas 21 days since then there are no minute and hour left for me t find a solution to get assistances in getting Lawyers to represent me and also to go advice on submission documents.

I have been to ask my annual Leave to be converted to cash so that I can pay Previous Lawyer and get current Legal advice as well as representative

The reason why I cant work full time and also why I cant even work the part time 3 days in full is the failure of the employer who misled Fair work commission because I don't have representative Lawyer and solicitor

and

Since then me speaking out of against the hidden unfair treatment going on in this department openly

Most impotently Employer has been taken adverse action on me by being threatened daily with all sort of reason I should not be employed as well as continues discrimination on me and on my health because of their failure of duty of care stated on attached contract.

I kindly ask again Vice President Hatcher to look my situation and understand and extend time too get a Lawyer who can explain my situation properly according to my ability in order to manage my health as well as defending unemployment.

and

to appeal against on Fair work Commissioner Lee decision who fail to recognise me as a citizen who deserve safe work place for what ever reason.”

[10] Attached to this email was a letter from a clinical psychologist, Ms Sandra Raponi-Saunders, dated 30 January 2019. In summary, this letter recorded that Ms Mekuria had been referred by her general practitioner for treatment of psychological stress arising from workplace bullying, and that there had been two consultations with Ms Mekuria on 17 and 26 January 2019. Ms Raponi-Saunders diagnosed Ms Mekuria’s mental health presentation and reported symptoms as consistent with “Adjustment Disorder with anxious and depressed mood in the context of workplace harassment and bullying, perpetuated by financial stressors, fear of losing her employment and related proceedings” and that Ms Mekuria also suffered from Insomnia Disorder. The letter referred to the medication prescribed to Ms Mekuria to assist with her anxiety and sleep difficulties, and concluded:

“It is in the writer’s opinion that Ms Mekuria has experienced severe emotional distress in relation to workplace bullying and harassment over much of her employment at Mecca Brands. Ms Mekuria is resolute to persevere with the legal matters against Mecca Brands and stated that her values of dignity and morality drive her strong commitment to anti-bullying and harassment principles.”

[11] Later the same day Ms Mekuria sent a further email attaching a number of documents which demonstrated that she owed the amount of $2,400 to a solicitor, Paul Horvath, for professional legal services apparently provided to her prior to the beginning of 2018, and that she had applied to Mecca on 29 January 2019 to have annual leave cashed out in order to assist in paying off this amount.

[12] In response to this correspondence, Mecca made the following submission in an email sent on 4 February 2019 (omitting formal parts):

“In response to the Applicant’s request for an extension to lodge her submission and for the hearing to be rescheduled, I would like to request that the hearing proceed as originally listed for Monday 18 February 2019, and that the Applicant lodge her submission by Friday 8 February 2019.

I appreciate the Applicant has issues around organising finances to support her in this matter, however the organisational Respondent and individual Respondents are entitled to have this matter brought to finality. I am concerned for the welfare and wellbeing of all involved as this matter has been ongoing for over 18 months. I believe any further delay poses a risk to the wellbeing of the Respondents and that proceeding with the hearing enables the Applicant and Respondents to gain closure and move on.

In addition to this, I am leaving the organisation at the end of February and any further extension and re-scheduling of the hearing may prejudice the matter due to my involvement and knowledge of events to date.”

[13] The same day the chambers of the presiding member advised that the hearing on 18 February 2019 would not be postponed, and that Ms Mekuria had until 8 February 2019 to file any submission upon which she sought to rely. However Ms Mekuria did not file any submissions on or before that date, or at all. On 13 February 2019 Mecca filed a short written submission which noted that Ms Mekuria’s notice of appeal did not contain any grounds of appeal and that Ms Mekuria had not filed any written outline of submissions despite being granted two extensions of time to do so. Mecca submitted that no error in the Decision had been identified by Ms Mekuria, that the Decision was not attended by any error, and that permission to appeal should be refused and the appeal dismissed.

[14] On Monday 18 February 2019, prior to the commencement of the hearing of the appeal, the Commission was notified (initially by telephone and subsequently by the filing of a Form F53 Notice of representative commencing to act) that Ms Mekuria would be represented by Mr Thomas Kay of Pasha Legal. The Commission was also notified that Mr Kay intended to apply for an adjournment of the appeal at the hearing.

[15] When the hearing of the appeal commenced, Mr Kay sought to appear for Ms Mekuria, and Ms Rebecca Hanley, the Head of Talent and Culture Business Partnering, appeared for Mecca. It should be noted at this point that Ms Hanley had appeared for Mecca in the proceedings before the Commissioner and had general carriage of Ms Mekuria’s bullying complaints. With the consent of Ms Hanley, we granted permission for Ms Mekuria to be legally represented by Mr Kay for the purpose of making her adjournment application.

[16] Ms Mekuria’s application, as finally formulated, was for the hearing to be adjourned and for Ms Mekuria to be allowed a period of approximately one month to file a properly pleaded amended notice of appeal and an outline of submissions. If the adjournment was granted on that basis, Ms Mekuria was prepared to consent to have the appeal determined without a formal hearing (that is, “on the papers”) pursuant to s 607(1) of the FW Act. Mr Kay made oral submissions in support of the adjournment application, and these were supplemented by oral submissions made personally by Ms Mekuria. Those submissions were to the following effect:

● Pasha Legal had only received instructions to act on Ms Mekuria’s behalf the previous Friday (15 February 2019) and was not yet in a position to properly advance a case on her behalf, or even to form a view as to whether her appeal had any merit.

● Ms Mekuria had, due to impecuniosity, been unable to secure the services of any lawyer for the appeal prior to 15 February 2019. Ms Mekuria identified two law firms she had attempted to have represent her without success, and referred generally to efforts to obtain legal representation.

● Ms Mekuria’s union, the NUW, did not believe her complaints and was “acting on behalf of the company”.

● Her impecuniosity was the result of being reduced to working three days per week because of her poor mental health, frequent absences from work for the same reason, and the legal fees outstanding and payable to Paul Horvath, Solicitor.

● She had requested relatives overseas to financially assist her in obtaining legal representation, and had at least been successful in obtaining sufficient funds to allow her to engage Pasha Legal to represent her to advance her adjournment application.

● Ms Mekuria’s poor mental health had also disrupted her capacity to obtain legal representation or to prepare for the appeal.

● A lengthy adjournment was required because of the necessity for documents to be translated for Ms Mekuria’s benefit.

[17] Mecca submitted that the adjournment should not be granted because:

● the proceedings had already extended over a long period of time;

● the prolongation of the proceedings continued to cause distress to the individual respondents, Ms Kelso, Ms Mantacas and Ms Chiruvu;

● an adjournment would also prejudice Meccas’s capacity to respond to the appeal, since Ms Hanley was to leave Mecca’s employ at the end of February 2019; and

● Ms Mekuria had failed to identify any grounds of appeal against the Decision, as distinct from mere dissatisfaction with the outcome.

[18] The consideration of an application for adjournment of a matter requires the exercise of a discretion. The overarching objective must always be the just resolution of the real issues in dispute with minimum delay and expense. In that respect regard must be given to ensuring that the applicant for the adjournment is afforded a fair and reasonable opportunity to advance their case, and that any adjournment does not cause undue prejudice to the other party. However, the interests of the parties are not the only considerations. The Commission is an institution which is required to deal with a very large number of matters, and s 577 of the FW Act provides that the Commission must perform its functions and exercise its powers not only fairly and justly but also quickly. Additionally, specific provisions of the FW Act require the Commission to deal with particular types of matters in very narrow timeframes (for example, s 420(1) and, in relation to anti-bullying applications, s 789FE(1)). Thus the grant of adjournments and the concomitant loss of valuable hearing days may prejudice the Commission’s capacity to deal expeditiously with other parties’ applications down the track. For this reason, when a matter has been programmed for hearing in a way which affords parties a proper opportunity to advance their cases within reasonable timeframes, an adjournment would not readily be granted. 2

[19] There are three other important considerations relevant to this particular adjournment application:

(1) Because s 596 of the FW Act provides that a party may only be legally represented in proceedings with the permission of the Commission in specified circumstances and not by right, the incapacity of a party to secure legal representation will not necessarily support an application for an adjournment. An assessment needs to be made as to whether it is likely that an application for permission for legal representation would be granted in the first place.

(2) Appeals under s 604 of the FW Act may only be brought with the permission of the Commission. Parties do not have a right to a hearing of their appeals. Therefore consideration of an adjournment application in respect of an appeal hearing by an appellant requires an assessment to be made of the prospects of permission to appeal being granted.

(3) Anti-bullying matters often raise issues of extreme personal sensitivity, including mental health issues. However it is important to note that such issues do not only affect applicants but also persons named in the application. The interests of such persons will therefore usually be a significant matter to be taken into account in the consideration of an adjournment application in an anti-bullying matter.

[20] In this case, the material before us tends to demonstrate that Ms Mekuria is suffering from mental health issues as a result of perceived workplace bullying. In stating this it is necessary to make clear that this does not involve any conclusion that Ms Mekuria has actually suffered workplace bullying, and we note that no finding to that effect was made in the Decision and this is not a matter to be determined by us, at least at this point. A situation in which an appellant who has suffered mental health issues which may have been a result of workplace bullying is prevented from properly litigating their appeal in an anti-bullying matter because of impairment caused by such mental health issues is obviously undesirable and to be avoided if possible. It is not clear to us the extent to which that impairment exists in this case; the psychologist’s report to which we have earlier referred does not deal with this question, and we note that Ms Mekuria’s oral address in relation to her adjournment application (which was made in the English language without a translator) was coherent and reasonably articulate. However, we consider this is a matter which weighs in favour of an adjournment to at least some degree.

[21] In relation to Ms Mekuria’s incapacity until recently to obtain legal representation and the lack of any reasonable opportunity for those lawyers to prepare for an appeal, we are faced with significant difficulty in weighing this as a consideration in respect of the adjournment application. Because we have no grounds of appeal and thus no understanding of what legal or factual issues might arise in the appeal, we are unable to form any clear view as to whether it is likely that permission for legal representation would be granted pursuant to s 596. All that it is possible to say is that Ms Mekuria’s mental health issues might support the grant of permission for legal representation, and that weighs to a limited degree in favour of the adjournment application.

[22] For the following reasons, we consider that an adjournment on the basis proposed by Ms Mekuria should not be granted:

(1) Given there are neither any appeal grounds, nor the slightest indication of what the basis of the appeal might be, there is no basis to conclude that the appeal has any merit or whether there is even a prospect that permission to appeal might be granted. A lengthy adjournment could not be justified absent a conclusion that the matter involved has some reasonable prospects of success.

(2) Mecca will to some degree be prejudiced by the adjournment sought because of the imminent departure of Ms Hanley.

(3) A lengthy adjournment creates the potential of placing continuing mental stress upon Ms Kelso, Ms Mantacas and Ms Chiruvu.

(4) Notwithstanding the difficulties we have identified, we do not accept that Ms Mekuria could not have made some greater effort to prepare for the appeal hearing, or at least identify the basis of her appeal, in the ten weeks since the notice of appeal was filed and the period in excess of six weeks since the directions for the appeal were issued. We take into account the fact that Ms Mekuria does not appear to have attempted to comply with the directions notwithstanding that she was granted two extensions of time to do so.

(5) It is not clear that the adjournment on the basis sought would result in Ms Mekuria continuing to have the benefit of the legal services of Pasha Legal. It does not appear that Ms Mekuria currently has the financial resources to secure continuing legal representation by Pasha Legal; rather, this appears to be dependent on securing the financial support of overseas relatives. Mr Kay conceded that the continuing representation of Ms Mekuria by Pasha Legal was a day-by-day proposition.

[23] In all the circumstances, we consider the appropriate step is treat the appeal hearing date as vacated and direct Ms Mekuria to file and serve an amended notice of appeal containing properly articulated appeal grounds, and a submission not exceeding three pages dealing with the issue of permission to appeal only, by 5.00pm on Monday 25 February 2019. This will give Ms Mekuria a limited opportunity, hopefully with the benefit of legal assistance from Pasha Legal, to identify the basis of her appeal including the grounds upon which permission to appeal is sought. This will allow us to make an assessment as to the appeal’s prospects of success and inform our consideration as to the procedural path forward without causing, at least at this stage, any overly prejudicial delay to the respondents. We do not consider that any time-consuming translation of documents is required in order for this direction to be complied with.

[24] We emphasise that if this direction is not complied with, the application for permission to appeal may be dismissed forthwith pursuant to s 587(1) of the FW Act without further hearing or notice. If an amended notice of appeal and an outline of submissions on permission to appeal are lodged in accordance with the direction, we may at that point refuse permission to appeal without hearing further from the respondents if we consider that no arguable case of appealable error is disclosed.

VICE PRESIDENT

Appearances:

T Kay on behalf of the Appellant

R Hanley for the Respondent

Hearing details:

2019

Sydney:

18 February

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 1   [2018] FWC 6486

 2   See generally Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, 239 CLR 175