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…

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.

Continue reading Applicant v Respondent

Details

AGLC: Applicant v Respondent [2016] FWC 6047
Case: [2016] FWC 6047
Decision Date: 26 AUGUST 2016

CaseChat Overview and Summary

In the matter of Applicant versus Respondent, the Federal Circuit and Family Court of Australia addressed an application for relief from unfair dismissal. The Respondent sought to relist the hearing dates due to alleged procedural errors and to ensure that all relevant evidence could be presented. The primary concern was whether the court should grant the Respondent's application to relist the hearing, which would involve a reconsideration of the procedural fairness of the initial dismissal and the potential impact on the Respondent's rights to a fair hearing.

The court had to determine whether the application to relist the hearing was made within a reasonable time, whether there were valid grounds to justify the relisting, and whether the relisting would cause an undue delay or prejudice to the Applicant. Additionally, the court needed to assess whether the procedural errors alleged by the Respondent were significant enough to warrant a rehearing and whether there was a reasonable prospect that the rehearing would result in a different outcome.

The court found that the Respondent's application to relist the hearing was not made within a reasonable time and that the procedural errors did not significantly impact the fairness of the initial hearing. The court emphasised the importance of timeliness in such applications and noted that the Respondent had not demonstrated that the alleged procedural errors would likely result in a different outcome. Consequently, the court dismissed the application to relist the hearing dates, upholding the original dismissal decision.

The court's decision was grounded in the principles of procedural fairness and the need for expeditious resolution of disputes. The final orders were that the application to relist the hearing dates was dismissed, and the original dismissal decision remained in place. The court also noted that any further applications to relist would need to be supported by compelling reasons and evidence of potential prejudice or procedural errors that were not previously considered.

Orders