2024 WAIRC 00323
CONTRACTUAL BENEFIT CLAIM
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00323

CORAM
: COMMISSIONER T B WALKINGTON

HEARD
:
THURSDAY, 18 APRIL 2024

DELIVERED : THURSDAY, 13 JUNE 2024

FILE NO. : B 67 OF 2023

BETWEEN
:
JESSICA MCCARTHY
Applicant

AND

MY FOODIE BOX LIMITED
Respondent

CatchWords : Application for leave to submit further evidence and submissions - fair and reasonable opportunity to present case – procedural fairness – case required to meet
Legislation : Industrial Relations Act 1979 (WA)
Result : Leave to submit further evidence and submissions granted
REPRESENTATION:

APPLICANT : MS J MCCARTHY
RESPONDENT : MS M HUGHES


Case(s) referred to in reasons:
PALERMO AND ROSENTHAL [2011] WAIRC 00069; (2011) 91 WAIG 129


Reasons for Decision
1 The respondent in this matter, My Foodie Box Pty, applies to the Commission for leave to be afforded the opportunity to submit further evidence and submissions in this matter.
2 The applicant, Ms Jessica McCarthy, opposes the granting of the respondent’s request.
3 I must decide whether to grant leave to the respondent to submit further evidence and documents.
Background and Facts
4 On 21 November 2023, Ms McCarthy applied to the Commission for an order that the respondent pay entitlements she says she is entitled to under her terms of her contract and have been denied to her by the respondent.
5 In the application Ms McCarthy claims that the respondent unilaterally varied her contract by reducing her hours from 14 November 2022, in breach of the terms of her contract of employment and claims a payment equivalent to the difference for a 20-week period. In addition, Ms McCarthy claims payment for overtime and time off in lieu, the payment equivalent to an additional two weeks for notice of termination, redundancy and annual leave calculated on her the hours stipulated in her contract of employment. In her application, Ms McCarthy noted that she reserved the right to add to this list.
6 On 12 January 2024, following a Directions Hearing, the Commission issued Directions [2024] WAIRC 00012:
HAVING heard from the applicant on her own behalf and Ms Hughes and Mr Hughes on behalf of the respondent, the Commission, pursuant to the powers conferred under the Industrial Relations Act 1979 (WA), and by consent, hereby directs:
1. THAT the respondent file and serve a on Form 3A – Employer Response to Contractual Benefit Claim, by no later than 30 January 2024;
2. THAT the applicant file and serve (by way of affidavit or statutory declaration) sworn signed witness statements by no later than 13 February 2024;
3. THAT the respondent file and serve (by way of affidavit or statutory declaration) sworn signed witness statements by no later than 27 February 2024;
4. THAT the applicant file and serve an outline of submissions, and any list of authorities upon which they intend to rely, by no later than 5 March 2024;
5. THAT the applicant file and serve (by way of affidavit or statutory declaration) sworn witness statements in response to the respondent’s witness statements by no later than 12 March 2024;
6. THAT the respondent file and serve an outline of submissions, and any list of authorities, upon which they intend to rely, by no later than 19 March 2024;
7. THAT the matter be listed for a hearing on a date to be determined not before 26 March 2024; and
8. THAT the parties have liberty to apply on short notice.
7 On 13 February 2024, Ms McCarthy informed the Commission and the respondent by email:
‘I will not be submitting any witness statements at this time.’
8 On 28 February 2024, the respondent filed a witness statement.
9 On 28 February 2024, the applicant emailed the Commission and respondent objecting to the contents of the respondent’s witness statement on the grounds that:
The respondent has utilised the later phase for witness statements (the intention of which is the opportunity for the respondent to provide third party statements) to introduce documents that, in my view, should have been included with their initial Form 3A submission. This strategic timing of document submission has not afforded me adequate time to thoroughly review and respond to the introduced evidence, thereby placing me at a procedural disadvantage and impacting the fairness of the proceedings.
Given the circumstances, I respectfully request the Commission to consider the following:
Review of Timeliness: An assessment of the respondent's adherence to procedural directives regarding the timely submission of supporting documents.
Guidance on Fairness: Any additional guidance or directions the Commission deems appropriate to ensure procedural fairness and equity in these proceedings, and if the statement should be allowed.
I believe these steps are crucial for maintaining the integrity of the process and ensuring that all parties have an equitable opportunity to present their case fully and fairly. It is clear that the witness statement does not add any new arguments outside what was outlined in Form 3A, but only adds the documentation that should have been included in their response with Form 3A, giving them an additional four weeks on top of the extension. 
I appreciate the Commission's attention to this matter and am prepared to comply with any further instructions or adjustments to the procedural timelines that the Commission may find appropriate.
It would also be prudent to comment that Mrs Hughes has repeatedly claimed she is on maternity leave with no access to her laptop, which was locked in her onsite office - but failed to notify the Commissioner at the Directions Hearing that she has been managing and completing the company payroll since approx October/November 2023 when Franke Bell, Bookkeeper, resigned and the position was not replaced. 
I will be adhering to the deadline for my document submissions as agreed at the Directions Hearing. 
Thank you for considering my request. I look forward to your guidance on how to proceed under these circumstances.
10 In response to the applicant’s email, the respondent referred the Commission and the applicant to the information on the Commission’s website which provides guidance for responding to applications:
In response to the Applicant’s latest complaint about our conduct in this matter, please note the following, which I have copied and pasted from https://portal.wairc.wa.gov.au/forms/information-for-parties/WAIRC/3A

Accordingly, we believe we have complied with all orders and that the Applicant has now sufficient time to respond as per the current Directions issued by the Commissioner.
11 On 29 February 2024, the Commission notified the parties that a Directions Hearing would be held to hear from the parties and sought their available dates. On 6 March 2023, the Commission notified the parties of a Directions Hearing scheduled for 21 March 2023.
12 On 29 February 2024, the applicant requested clarification of the Directions. On 8 March 2024, the parties were informed that the Directions issued on 29 February 2024 must be followed and a request to vary the Directions may be made.
13 On 8 March 2024, the applicant informed the Commission and the respondent that she will put a hold on submitting her outline of submissions due on 5 March 2024 until after the Directions Hearing scheduled for later in the month.
14 On 8 March 2024, the applicant filed and served a document of ‘Outline and supporting documents’ and with an explanation of the delay in submissions:
Please find attached my Outline and supporting documents for your review. I apologise for the delay in submission.
I would like to clarify that there was a misunderstanding regarding the process. I had sought clarification from the WAIRC on the deadlines on 29th February and 5th March. Unfortunately, I missed the deadline as I was awaiting a response. I have submitted my outline and supporting documents as soon as I became aware of the requirements. 
I appreciate your understanding and patience in this matter. If there are any further steps or information required, please do not hesitate to let me know.
Please let me know if you have any issues downloading the supporting documents, or if there is an alternative way to upload a large file. I have provided a download link for your convenience as well.  https://we.tl/t-c7UIzpGznW
Thank you for your attention to this matter.
15 The applicant’s outline and supporting documents number 448 pages and consisted of a table with commentary in response to the Form 3A Employer Response and citing authorities for submissions contained in the outline. The table contained a column referring to the documents included by description of the document. The documents were not paginated.
16 On 19 March 2024, the respondent filed and served an outline of submissions and a list of authorities.
17 On 21 March 2024, the applicant contacted the Commission to advise that she was unable to attend the Direction Hearing because she had been in a car accident.
18 On 21 March 2024, the Commission emailed the parties to seek information concerning the management of the case:
I confirm that the Directions Hearing set down for 10:30 am on Thursday 21 March 2024 was vacated because of the Applicant’s inability to attend.
The purpose of the Directions Hearing was to ensure the hearing and determination of application B 67/2023 is conducted in an efficient and fair manner.  At the Directions Hearing the Commission intended to hear from the parties on several issues concerning the materials submitted to date.  These are outlined in the attached schedule.  The Commission requests the Applicant respond to these matters by Friday 5 April 2024 to enable a hearing date for the substantive claim to be set down.
A Directions Hearing may be reconvened should either party require further information concerning the matters or wishes to be heard on any matters contained in the schedule.
If you have any queries, please do not hesitate to contact chambers. It is a requirement that parties copy the other side into all correspondence with the Commission, this is to ensure the Commission is being fair and transparent with both parties.
19 On 8 April 2024, Ms McCarthy filed and served a copy of a witness statement on her own behalf and responded to the Commission’s questions:
Thank you for your email and understanding the other week. Apologies again for any and all inconvenience caused to you, the Commissioner and Respondent.
Download link here: https://we.tl/t-U4Pwsv5Mzt
Para 2: I will not be seeking to amend the claim in B 67/2023 as per para 2 of the Schedule. 
Para 4: Evidence has been provided in my application and outline of submission but I have formatted this into a witness statement document, attached.
Para 9: Thank you for pointing this out, my document exported with an error and merged text from another spreadsheet. I have updated this attached and provided copies of the cases. For some I have lost access to the libraries to obtain a copy and have removed these from the Outline of Submissions. 
As I am sure it's obvious, this is the first time I have been involved in any legal proceedings of this nature, and I very much appreciate your time and patience explaining the process and procedures. 
In regards to setting a hearing date, I am overseas from 29 April to 24 May (inclusive).
20 On 8 April 2024, the respondent requested leave to provide additional statements and evidence:
We would like to request to add additional statements and evidence as part of our submission given Ms McCarthy only sent her statements and evidence on 02nd April instead of 13th February as per the Directions sent on 12th January.
Ms McCarthy’s late submission has impacted our statement as she submitted additional evidence and statement that was not part of her initial claim and we would like to be allowed to respond to these allegations.
Our witness statement and list of submissions were based on the information provided at the time, which was only the Form 3 since the Applicant advised on 13th February that she would not be providing any witness statements.
Ms McCarthy’s claim that she did not understand the process is difficult to believe given she has legal representation and that her lawyer has been giving her legal advice throughout this process.
21 On the evening of 8 April 2024, the applicant emailed the Commission and responded by objecting to the Commission granting the respondent’s request on the basis that:
The only new evidence I have supplied is documentation showing the Respondent was misleading or dishonest in some of their claims made to Commissioner Walkington when requesting an extension, not new evidence in regards to the original application made in November. 
It is my preference to move to next steps ASAP without further delays.
22 On 9 April 2024, the applicant filed and served an additional or replacement outline of evidence, submissions and copies of authorities.
Principles
23 Section 26(1)(a) of the Industrial Relations Act 1979 (WA) (the IR Act) sets out the manner in which the Commission is required to deal with matters:
…according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms
24 The Commission is not bound by any rules of evidence but may inform itself on any matter in such a way as it thinks just (s 26(l)(b)). The Commission is also required to have regard to the interests of persons immediately concerned, whether directly affected or not (s 26(1)(c)). The Commission is entitled to determine its own procedure.
25 In Palermo and Rosenthal [2011] WAIRC 00069; (2011) 91 WAIG 129 (Palermo), the Full Bench of the Commission considered the elements of procedural fairness in the context of the statutory provisions of the IR Act and held that:
(a) Matters should be dealt with in a way that eliminates delay with a minimum of legal form and technicality but allows for a proper and just consideration of matters;
(b) When managing a matter the Commission should have regard not only to the interests of each party but to interests of the public in the efficient use of resources of the Commission;
(c) There should be a fair and reasonable opportunity to both parties to each present their case. A determination of what is fair and reasonable in the circumstances of a matter should have regard to the matters raised in (a) and (b) above and:
(i) The parameters of relevant matters set by the particulars given by each party in the application, notice of answer and any other particulars.
(ii) What is reasonably required for the efficient presentation by each party of their case.
(iii) The principle that each party should not be left in any doubt about what is alleged against them and the opposing case they are required to meet ([80](a) - [80](c)).
Should the Respondent Be Granted Leave to Submit Further Evidence?
26 It was only when requested to confirm whether Ms McCarthy intended to give evidence at the hearing did Ms McCarthy submit a witness statement. Ms McCarthy has not provided an explanation for not providing a witness statement by the date set in the Directions.
27 At the time the respondent initially filed and served their outline of evidence, in the absence of Ms McCarthy’s witness evidence and documents, the respondent did not know the case that they were to answer. The respondent contends that having now received an outline of Ms McCarthy’s witness evidence, supporting documents and references to authorities it wishes to submit further evidence, documents and submissions in response to matters it had not known earlier.
28 The Commission must exercise its jurisdiction consistent with s 26 (1)(a), (b) and (c):
26. Commission to act according to equity and good conscience
(1) In the exercise of its jurisdiction under this Act the Commission —
(a) must act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms; and
(b) must not be bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just; and
(c) must have regard for the interests of the persons immediately concerned whether directly affected or not and, where appropriate, for the interests of the community as a whole; and
29 Consistent with s 26(1)(a), (b) and (c) and applying the principles in Palermo, I consider granting the respondent leave to submit further evidence and documents in response to that submitted by Ms McCarthy would afford the respondent a fair and reasonable opportunity to present its case. I will grant leave for the respondent to submit further evidence and documents it wishes to rely on.