Alexandra Mercuri v Green Castle Renmark Pty Ltd T/A Renmark Country Club

[2019] FWC 6086

[2019] FWC 6086

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Alexandra Mercuri
v
Green Castle Renmark Pty Ltd T/A Renmark Country Club
(U2018/12151)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 30 AUGUST 2019

Application for an unfair dismissal remedy

[1] This decision concerns the approach which the Fair Work Commission (Commission) intends to apply at the rehearing of this matter to the question of the extent (if any) oral evidence given before Commissioner Platt in an earlier determinative conference on Ms Mercuri’s application should be used or relied upon at the rehearing of the matter (scheduled for 4 and 5 September 2019).

[2] Following Ms Mercuri’s application being remitted to me by decision of a Full Bench of the Commission [2019] FWCFB 3444, I raised this issue with the parties at a directions hearing on 23 July 2019. By virtue of paragraph [7] of my Directions of the same date, I provided the parties an opportunity to make a written submission on this question by 20 August 2019. I received a written submission from the Applicant on 19 August 2019. At a directions hearing on 29 August 2019 I extended the time for the Respondent to make a written submission on this question to 12 noon 30 August 2019. I have since received a written submission from the Respondent.

[3] The Applicant submits that the oral evidence of witnesses in earlier proceedings before Commissioner Platt and thus the transcript of proceedings of those witnesses in the earlier proceeding should be allowed as evidence at the rehearing (paras 4, 5 and 6 of the Applicant’s submissions). The Applicant also submits that the earlier evidence may be relevant as to credit should there be evidence of prior inconsistent statements from witnesses (para 20 of the Applicant’s submissions).

[4] The Respondent submits that the transcript of the earlier hearing “should not be provided to the parties in this hearing” and “in the interests of justice and fairness any evidence obtained before Commissioner Platt should be completely and without exception disregarded” (paras 2 and 4 of the Respondent’s submissions).

[5] Relevant to my consideration of this matter is the basis on which the Full Bench allowed the employer Respondent’s appeal from the earlier decision of Commissioner Platt. The Full Bench concluded that certain observations made by the Commissioner at a directions hearing that preceded the determinative conference he conducted constituted an inappropriate expression of preliminary views as to merits and remedy and that accordingly the Commissioner’s Decision and Order arising out of the determinative conference were quashed and the matter was remitted for redetermination.

[6] Whilst the Full Bench did not make observations critical of the manner in which the determinative conference was conducted by the Commissioner, I accept that the nature of the substantive proceedings in the determinative conference (including the taking of evidence and questions related thereto) cannot be wholly divorced from the directions hearing that immediately preceded it.

[7] It is my intention to conduct the redetermination by way of rehearing. I intend to take the evidence in this matter afresh, and have already issued directions for the parties to refile witness statements and related documents, allowing the parties to refile the same witness statements and documents previously filed if they so wish.

[8] In these circumstances I do not intend to utilise the evidence previously given before Commissioner Platt for any probative purposes or as a basis of making any findings of fact.

[9] Accordingly, and unless I direct or order to the contrary, the evidence before Commissioner Platt will not be admitted into the formal body of evidence at the rehearing.

[10] However, I accept the submission by the Applicant that issues of credit at the rehearing are capable of being informed by putting prior inconsistent statements to a witness. Should it be put to a witness in cross examination at the rehearing that the evidence they give at the rehearing is inconsistent with a prior statement made by them, including one made under oath in the earlier proceedings, that will be a permissible use of their earlier evidence. Such an approach may assist the Commission to determine the probative value of the evidence led at the rehearing, noting that the earlier evidence before the Commissioner will have no probative value in its own right. Accordingly I intend to mark the transcript of proceedings before Commissioner Platt for identification (MFI1) and permit it to be used at the rehearing for that purpose should either the Applicant or the Respondent seek to do so, but only for that purpose.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR711909>