DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Applicant
v
Respondent
(U2011/12007)

DEPUTY PRESIDENT DEAN

CANBERRA, 23 JULY 2021

Application for an unfair dismissal remedy – application lodged in 2011 – application dismissed

[1] This decision concerns an application made by the Applicant in September 2011 pursuant to s.394 of the Fair Work Act 2009 seeking a remedy for her alleged unfair dismissal by the Respondent.

[2] The circumstances that have led to the substantial delay in the prosecution of the application have been the Applicant’s medical condition.

[3] On 9 May 2014 Deputy President Sams issued a statement 1 (the Statement) ordering the matter be adjourned indefinitely until such time as the Applicant provided the Commission with unequivocal medical evidence that she is capable of properly conducting her case or that she is capable of giving instructions to a representative to act on her behalf.

[4] In the ensuing period the Commission had intermittent communications with the Applicant. The Applicant continued to express her intention to proceed with the application but otherwise advised that she was unfit to participate the process and provided medical certificates to that effect.

[5] The Respondent now seeks to have the matter dismissed under s.587 of the Act for several reasons, including the extraordinarily long time period since her application was made.

[6] The Applicant in her reply contends that the application should remain on foot and has applied that I recuse myself from this case.

[7] For the reasons set out later in this decision, I decline to recuse myself and have decided to dismiss the application.

Background

[8] The Statement issued by Deputy President Sams provides an overview of the background of the matter and is set out in full as follows:

“[1] These proceedings have had a long and regrettable history. Part of that history was recorded in my decision last week, Applicant v Respondent[2014] FWC 2860 at para [9]. It is sufficient to note at this time, that the applicant was dismissed on 12 September 2011. She has not been employed since then, due to severe and undisputed mental health issues.

[2] Nevertheless, the matter was listed for arbitration on Monday 5 May 2014 and scheduled for hearing over five days. The arbitration arose from the applicant’s advice that she was ready to commence prosecuting her claim. Her most recent doctor’s report, while expressing concern with the applicant’s fragile state and suggesting that the Commission ensure the proceedings be conducted to ensure that her stress be minimised, did not expressly diagnose that she was incapable of conducting her case.

[3] On the morning of 5 May 2014, I invited the parties to have further settlement discussions, but despite conciliation conferences over a number of hours, no settlement could be reached. Nevertheless, an offer was made by the respondent, which the applicant agreed to consider overnight and after taking advice from her family. However, the following day, the Commission and the respondent were informed that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 3624
Decision Date: 23 JULY 2021

CaseChat Overview and Summary

The Applicant brought an application for an unfair dismissal remedy against the Respondent, which was lodged in 2011. The matter was heard in the Federal Circuit Court. The primary dispute centred on the fairness of the Applicant's dismissal and whether the dismissal breached any provisions of the Fair Work Act 2009.

The court had to determine whether the dismissal was harsh, unjust, or unreasonable, and whether the dismissal was for a valid reason. The Applicant argued that the dismissal was unfair due to procedural flaws and the absence of a valid reason. The Respondent contended that the dismissal was both procedurally fair and justified on valid grounds.

In assessing the fairness of the dismissal, the court examined the procedural fairness of the dismissal process and whether the Respondent had a valid reason to terminate the employment. The court found that the dismissal process was procedurally fair and that the Respondent had a valid reason to terminate the employment, thus dismissing the application. The Applicant's argument regarding the absence of a valid reason was rejected by the court, which found the dismissal to be justified.

The court dismissed the application for an unfair dismissal remedy, affirming that the dismissal was both procedurally fair and justified. The Applicant's application was dismissed, and no orders were made in favour of the Applicant.

Orders