Applicant v Respondent

[2014] FWC 3073

[2014] FWC 3073

FAIR WORK COMMISSION

STATEMENT

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

Applicant
v
Respondent
(U2011/12007)

DEPUTY PRESIDENT SAMS SYDNEY, 9 MAY 2014

Application for unfair dismissal remedy - applicant’s medical condition - matter part heard - offer of settlement - proceedings adjourned indefinitely.

[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 the offer was not acceptable to her.

[4] The arbitration was resumed in the form of a determinative conference, as requested by the applicant. She tendered a 67 page, closely typed statement and was cross-examined by the respondent’s counsel. The cross examination concluded about 2:30pm. Notwithstanding the point reached in the arbitration, I formed the view, after observing the applicant in conference and giving evidence, that I would invite another member of the Commission to undertake further conciliation with the parties. Commissioner Riordan was available and kindly offered to do so.

[5] After private conferences with the Commissioner, the applicant sought further time to consider the offer of settlement. She also indicated to me that she was in no fit state to cross-examine the respondent’s witnesses the next day. The respondent consented to the adjournment. Commissioner Riordan adjourned the conciliation until yesterday morning. Upon resumption of the conciliation, the applicant again rejected the respondent’s offer of settlement. She sought further time to consult with her solicitor who, she said, was presently overseas. The applicant claimed that she had always been prepared to conduct the arbitration of her claim, but was completely ‘thrown off’ and could not focus or concentrate as a result of the change in proceedings involving conciliation. The applicant said that, as a result, she was in no fit state to cross-examine the respondent’s witnesses today, Friday 9 May 2014 and sought a further adjournment.

[6] The respondent expressed concern with the state of the proceedings and the delay in reaching finality in the matter. However, it reluctantly agreed to the adjournment. The respondent proposed to provide the applicant with the details of its offer in writing and to advise her how long the offer would remain open before being withdrawn. I presume this has occurred today.

[7] It does not take a trained psychologist or psychiatrist to recognise that the applicant’s mental state is such that she is incapable of prosecuting her case at the present time. The physical manifestations of her mental state are plain and obvious and I need not detail them here. I accept her own assessment that she cannot focus or concentrate on the cross-examination of witnesses, after being diverted by a change in the nature of the proceedings. Nevertheless, I remain firmly of the view that the applicant’s poor mental condition is not being helped by a continuation of these proceedings. Her best outcome would be to seriously reconsider accepting the respondent’s offer and ‘move on with her life’.

[8] However, given the very unusual and regrettable circumstances of this case, I have decided to adjourn these proceedings indefinitely. The arbitration will not be resumed unless and until the applicant provides 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.

[9] I order that these proceedings are adjourned indefinitely.

DEPUTY PRESIDENT

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