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…

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: [2014] FWC 3073
Decision Date: 9 MAY 2014

CaseChat Overview and Summary

In the Fair Work Commission, the applicant brought an application for an unfair dismissal remedy against the respondent. The applicant alleged that their dismissal was unfair due to their medical condition. The matter was part heard when the applicant was offered a settlement by the respondent. The proceedings were then adjourned indefinitely.

The legal issues before the Commission included whether the applicant's dismissal was unfair, and if so, whether the offer of settlement should be accepted. The Commission had to determine if the respondent's actions were justified under the circumstances and whether the applicant's medical condition was a relevant factor in the dismissal. Additionally, the Commission needed to consider the implications of the offer of settlement on the proceedings.

The Commission found that while the applicant's medical condition was a relevant factor, the respondent's actions were justified. The offer of settlement was also considered, and it was determined that accepting the offer would be in the best interests of both parties. Consequently, the proceedings were adjourned indefinitely to allow the parties to negotiate a resolution.

The Commission made an order that the proceedings be adjourned indefinitely to allow for the parties to reach a settlement. If a settlement is not reached within a specified period, the matter will be listed for further hearing.

Orders