Applicant v Respondent
[2016] FWC 6047
•26 AUGUST 2016
| [2016] FWC 6047 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Applicant
v
Respondent
(U2016/769)
COMMISSIONER CLOGHAN | PERTH, 26 AUGUST 2016 |
Application for relief from unfair dismissal - application by Respondent to relist hearing dates.
[1] This is an application by the Respondent pursuant to s.589 of the Fair Work Act 2009 (FW Act) for an order that the hearing dates of 7 and 8 September 2016 be vacated and that “the matter be relisted on dates to be determined by the Commission in consultation with the parties”.
[2] The Applicant submits that the Respondent’s application should be dismissed.
PROCEDURAL BACKGROUND
[3] On 4 February 2016, the Applicant was summarily dismissed for serious misconduct.
[4] On 23 February 2016, the Applicant made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal by the Respondent.
[5] The application was the subject of conciliation on 8 April 2016. Conciliation was unsuccessful and the application was referred to me for arbitration.
[6] The Conciliator’s report regarding future processing preferences given to him verbally at the end of the conference was as follows:
Applicant | Respondent | |
Conference or hearing? | Hearing | TBA |
Location? | Perth | Perth |
Dates not available? | June 2016 onwards ok | End of May/June 2016 onwards ok |
Witness numbers? | 1 - 3 | 14 – 16 (but may be able to reduce!) |
Duration? | 1 day | 4 days |
Representation other than registered org? | Steve Heathcote | TBA |
F4 required for jurisdictional objection | N/A |
[7] On 12 April 2016, I issued procedural directions for a hearing on 7 June 2016.
[8] On 4 May 2016, my Associate received an email from the Respondent’s solicitor which relevantly reads:
“We have recently been instructed to act for the Respondent…in the above matter.
I refer to the notice of listing which lists this matter for a one day trial on Tuesday 7 June 2016. Unfortunately, one of the witnesses we expect to call, and our counsel are unavailable on that date.
In addition, it is our view, and the view of the solicitor for the Applicant, that the trial will likely take more than one day – it seems more likely that it could take 2-3 days (on the basis that we currently expect there to be between 6-8 witnesses).
With that in mind, we have conferred with the solicitor for the Applicant, and our combined available dates for June-October 2016 are as follows:
June: No dates available
July: 25-28
August: No dates available
September: 26-30
October: 4-7, 10-14, 17-19, 21, 24-28”
[9] On the same day (4 May 2016), my Associate received an email from the Applicant’s solicitor which relevantly reads:
“I confirm that the Applicant shares the Respondent’s view about the likely duration of the hearing, and of the undesirability of a matter being part-heard. Accordingly, the Applicant agrees that the current hearing date should be vacated and that the matter should be set down for 2-3 days later in the year when the Respondent’s witnesses and Senior Counsel are available.”
[10] The procedural directions were amended and the hearing relisted for three (3) days commencing on 25 July 2016.
[11] As early as 20 April 2016, the Applicant’s solicitor indicated that the Applicant would be seeking an order for the production of documents.
[12] The parties conferred regarding the documents sought by the Applicant. However, on 10 and 11 May 2016, the Applicant sought, pursuant to s.590(2)(c) of the FW Act, the production of certain classes of documents. Following the application for production of documents, two conferences were scheduled but vacated by the parties on 18 and 24 May 2016. The Commission conducted a conference on 1 July 2016. At the conference, the classes of documents were reduced to a schedule.
[13] Due to an exchange of information after the conference, the schedule of classes of documents was further reduced.
[14] With respect to the remaining classes of documents, the Respondent objected to an order being made by the Commission on the basis that they were legally privileged (LPP) or it would be oppressive for the Respondent to comply with such an order.
[15] In early July 2016, the parties emailed each other with respect to whether the documents were the subject of LPP. Needless to say, the parties disagreed with each other.
[16] The Respondent’s solicitor suggested that a signed statutory declaration by the Respondent’s Workplace Relations Adviser (Witness B) should be sufficient and “deals with the [Respondent’s] objection” that the “documents were created for the dominant purpose of obtaining legal advice, or in anticipation of legal proceedings” (8 July 2016 11:50 am). Further, if the Applicant wishes to test [Witness B’s] statutory declaration, that could be done at the hearing commencing on 25 July 2016.
[17] On the same day, the Applicant’s solicitor responded, “the suggestion that [Workplace Relations Advisor] ‘evidence’ ought to be accepted, and for the fate of the F52 determined, without giving the Applicant an opportunity to test that ‘evidence’ by way of cross-examination, would be unfair. It appears that issues of fairness may well compel the Commission to hear the parties before the hearing of the substantive application, and with sufficient time between for the material to be produced (if that is the Commission’s decision) and considered” (8 July 2016 12:42 pm) (my emphasis).
[18] The Respondent’s solicitor responded and submitted that “the most efficient use of the Commission’s and parties time in resolving that issue is for it to be dealt with at the start of the trial beginning on 25 July…” (8 July 2016 2:03 pm).
[19] For reasons of fairness, I advised the parties on 12 July 2016 that I would hear and determine the Applicant’s application for production of documents prior to the substantive hearing into the merits of the alleged unfair dismissal. On the same day, I issued procedural directions for a hearing into the production of documents on 25 July 2016.
[20] On 1 August 2016, I issued my Decision in relation to the Applicant’s application for the production of documents [2016] FWC 5006. I dismissed the Respondent’s LPP objection.
[21] On 2 August 2016, my Associate was advised by the Respondent’s solicitor:
“In anticipation of the Commission scheduling the trial in this matter, we thought it appropriate to advise the Commission of the Respondent’s unavailable dates.
Unfortunately, two key witnesses have extended and overlapping periods of leave overseas in the coming months. For the next 3 months, the only available dates for all witnesses to be in Perth are 26, 27 and 28 October. However, only one witness is unavailable on 24 and 25 October - therefore if timing could be agreed so that that witness could appear on 26 October then the entire week commencing 24 October is available for the Respondent.”
[22] In an “up-date” email, the Respondent’s solicitor advised on 9 August 2016:
“…unfortunately the availability of Senior Counsel for the hearing has now changed and the Respondent is only available on Monday 24 October to Wednesday 26 October.”
[23] The Applicant’s solicitor responded setting out the Applicant’s concerns at the significant delay and requested that the Commission list the matter as early as possible (15 August 2016).
[24] On 16 August 2016, the Commission listed the substantive matter for hearing on 7 and 8 September 2016.
[25] On 17 August 2016, the Respondent’s solicitor set out its witness availability and requested the Commission to consider relisting the matter.
[26] On 18 August 2016, the Respondent made this application seeking the matter be “relisted on dates to be determined by the Commission in consultation with the parties”.
SUBMISSIONS
[27] I have considered the grounds for the order set out in the Respondent’s application, an affidavit attached to the application and attachments. I have also considered the Applicant’s submission in reply and the Respondent’s response to the Applicant’s submission.
CONSIDERATION
[28] The Respondent submits:
“Of the witnesses [the Respondent] intends to call, 4 of the 7 are not available for the dates that the matter is currently set down for. This is the sole reason that [the Respondent] has made an application to have the hearing dates vacated” (Respondent’s submission paragraph 8) (my emphasis).
[29] On 8 April 2016, the Respondent informed the Conciliator that from the, “end of May/June 2016 onwards OK”. This was, and is, the starting point for consideration of the availability of the Respondent’s witnesses.
[30] Secondly, on 8 April 2016, the Respondent had indicated it may call 14-16 witnesses with a caveat that, “it may be able to reduce”.
[31] Less than one month later, availability of the now 6-8 Respondent witnesses, had been reduced to 25 days, in a period of five (5) months.
[32] Initially, the Commission accommodated the parties’ availability and set the matter down for three (3) of the 25 available days commencing on 25 July 2016.
[33] As a consequence of the Respondent’s LPP objection to the production of documents, I advised the parties on 12 July 2016 that, unfortunately, the hearing of the substantive matter commencing on 25 July 2016 would have to be vacated to make way for a hearing into the Applicant’s request for an order for the production of documents.
[34] Within two (2) days of the Commission issuing procedural directions (12 July 2016) in relation to the hearing on 25 July 2016 into the Respondent’s objection to the production of documents, the Respondent’s solicitor was advised of the annual leave dates of the Respondent’s witnesses with the following summary:
“From the below, it looks like the only periods when all are available is:
- 25 July to 31 July
- 3 October to 11 October”.
[35] The Respondent has submitted that “4 of the 7 witnesses are not available for the rescheduled hearing of 7 and 8 September 2016” into the substantive matter. According to the schedule of annual leave provided by the Respondent to its solicitor, that is correct. However, that leave roster was not provided to the Commission until the Respondent made this application on 18 August 2016. Further, the leave schedule indicates that two (2) of the witnesses return from leave on 11 September 2016 and one (1) witness returns from leave on 15 September 2016.
[36] Consequently, six (6) of the seven (7) witnesses are available from 16 September 2016 to 3 October 2016.
[37] Where does this factual information lead to?
[38] On 8 April 2016, the Respondent was in a position to advise the Commission that its witnesses were “ok” from May/June 2016 onwards.
[39] All of the witnesses, whose relevant availability is being considered, have their conditions of employment regulated, in part, by an enterprise agreement. That enterprise agreement provides that employees, “may request to take annual leave”. Presumably, it is the Respondent who approves annual leave.
[40] The Commission listed the hearing date of 7 and 8 September 2016 on 16 August 2016. After that date, the Respondent has allowed, or is allowing, two (2) of the four (4) witnesses to proceed on their leave on 22 August and 5 September 2016. It is notable that Witness A has been allowed to proceed on annual leave from 22 August to 2 October 2016.
[41] Another witness proceeded on leave on 15 August 2016, one (1) day before the Commission issued the notice of listing on 16 August 2016 for the hearing into the substantive matter on 7 and 8 September 2016.
[42] What is particularly disappointing is that the Respondent’s solicitor has, on a number of occasions, referred in its email to efficiency and making the best use of the parties’ time.
[43] When the Commission issued its Decision on 1 August 2016 with respect to the LPP objection regarding the production of documents, the Respondent’s solicitor advised the Commission the next day (2 August 2016) of the only available dates for all witnesses to be in Perth.
[44] What the email of 2 August 2016 failed to say was that six (6) of the seven (7) witnesses were available up to 15 August 2016 and five (5) of the seven (7) witnesses available up to 22 August 2016. In particular, the Respondent’s solicitor’s email refers to a “key” witness, namely Witness A, who was available up to 22 August 2016.
[45] It has also to be borne in mind that while the Respondent made the Respondent’s solicitor aware of the annual leave dates of witnesses on 14 July 2016, it did so with the author’s comment, “this has changed a little from the previous dates we gave you”. This indicates that the Respondent’s solicitor was aware of the leave dates of all witnesses prior to 14 July 2016.
[46] I now turn to this issue as it affects the Applicant.
[47] Firstly, the Applicant was dismissed for serious misconduct on 4 February 2016.
[48] Secondly, one of the objects of Part 3-2 Unfair dismissals of the FW Act, is to establish procedures which are “quick, flexible and informal” (s.381(1)(b) of the FW Act).
[49] Thirdly, the delay sought by the Respondent from 7 and 8 September 2016 is reasonably lengthy – approximately seven (7) weeks).
[50] Fourthly, the delay is solely attributable to the unavailability of the Respondent’s witnesses.
[51] Fifthly, the unavailability of witnesses is at odds with the initial information provided to the Commission.
[52] Sixthly, the delay probably, and I emphasise probably, could have been overcome if the Respondent had proactively managed annual leave requests of witnesses who were required to give evidence into the substantive matters of this application.
[53] If the Commission and the Applicant’s solicitor had of been aware of the dates on which the witnesses were intending to take annual leave, the parties and the Commission could have better “case managed” proceedings to enable the substantive matter to be heard and determined prior to 24 and 26 October 2016. A number of options could have been considered.
[54] Finally, in the circumstances, the only party prejudiced by the delay, is the Applicant.
[55] Before concluding, I wish to say that I have not considered the availability of Senior Counsel in consideration of the Respondent’s request for an order that the hearing dates be vacated. I have done so because the Respondent has submitted that the sole reason for seeking the order is the unavailability of witnesses. In doing so, I should note that the Commission has been advised, by email, on a number of occasions, the available dates of Senior Counsel.
[56] It is an occupational hazard of being a member of the Commission but, “we cannot please all the parties all of the time”.
[57] The Commission is constantly asked to accommodate requests from parties on a variety of matters.
[58] In all cases, the Commission has to evaluate the overall circumstances, and attempt to balance competing interests.
[59] In these circumstances, it is an inescapable fact that the Applicant is seeking justice for an alleged injustice of being dismissed for serious misconduct. He will have waited over seven (7) months if the matter goes to hearing on 7 and 8 September 2016. If, as the Respondent suggests, the matter is heard in late October 2016, the Applicant will have waited nearly nine (9) months.
[60] There can be no dispute that the Applicant is the only person affected by the delay.
[61] While I must, and do, take into account the availability of witnesses, that cannot be the only consideration or the overriding consideration. I must give consideration to other factors in determining when this matter should be set down for hearing.
CONCLUSION
[62] For the reasons set out above, the order sought by the Respondent that the hearing dates of 7 and 8 September be vacated and relisted on dates to be determined by the Commission, in consultation with the parties, is dismissed.
[63] While I have dismissed the Respondent’s request for the order, I am now better informed with respect to the availability of individual witnesses.
[64] Having considered the individual leave arrangements of the witnesses, the following dates will ensure that six (6) of the seven (7) Respondent’s witnesses are available to give their evidence:
- 19 to 21 September 2016 inclusive.
[65] Alternatively, the following dates will ensure that all seven (7) witnesses are available to give their evidence:
- 4 to 6 October 2016 inclusive.
[66] If the parties cannot agree on one (1) of the two (2) options immediately above, the Commission will set the matter down without further consultation.
COMMISSIONER
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