David Rayner v Little Moreton Pty Ltd T/A H-R Products
[2018] FWC 788
•7 MARCH 2018
| [2018] FWC 788 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
David Rayner
v
Little Moreton Pty Ltd T/A H-R Products
(U2016/10836)
DEPUTY PRESIDENT BINET | PERTH, 7 MARCH 2018 |
Application for relief from unfair dismissal – dismissal was not unfair – application dismissed.
[1] On 2 November 2017, the Full Bench of the Fair Work Commission (FWC) at [2017] FWCFB 5643 (Appeal) remitted this matter between Mr David Rayner (Mr Rayner) and Little Moreton Pty Ltd T/A H-R Products (HR Products) to me for further consideration.
[2] The Appeal arose from my decision on 21 July 2017 at [2017] FWC 1652 to dismiss Mr Rayner’s application pursuant to section 394 of the Fair Work Act 2009 (Cth) (FW Act) for an unfair dismissal remedy (Decision).
[3] The Full Bench upheld the Appeal on the grounds that a document forwarded to my Chambers by Mr Rayner’s treating psychologist Dr Elisa Mladenovic (Mladenovic Report) after I had reserved my decision, should have been forwarded to Mr Rayner and an inquiry made with Mr Rayner to ascertain whether he wished to make a submission for the hearing to be reopened and the Mladenovic Report admitted into evidence.
[4] Prior to his dismissal on 30 August 2016 Mr Rayner had been employed by HR Products as a Storeperson and Order Packer. Mr Rayner was summarily dismissed by HR Products following an altercation with another employee in which Mr Rayner was injured. Mr Rayner had previously been involved in two workplace accidents on 8 July 2015 and 25 February 2016 in which he suffered various injuries.
[5] Mr Rayner filed his application for an unfair dismissal remedy on 31 August 2016 (Application). Efforts to resolve the Application by conciliation proved unsuccessful, so on 29 November 2016 directions were issued to the parties for the hearing and determination of the matter at first instance (November 2016 Directions). The November 2016 Directions required the parties to file and serve on each other:
• an outline of submissions in relation to the merits of the Application;
• a signed and dated witness statement for any witness to be called;
• a copy of any authorities on which they relied; and
• a copy of any document upon which they relied.
[6] In the case of Mr Rayner, his materials were due by close of business, Thursday 15 December 2016 and in the case of HR Products their materials were due by close of business, Tuesday 29 December 2016.
[7] On 14 December 2016 Mr Rayner filed a list of documents he indicated that he intended to rely on (List of Documents). HR Products assert that none of the documents on the list were actually served on HR Products.
[8] The first instance hearing was held on Friday 3 March 2017 (First Hearing), after an extension for filing authorities, a Procedural Decision on an Order to Produce [2017] FWC 943 and other interim matters were dealt with. During the course of the First Hearing Mr Rayner indicated that he wished to tender the Mladenovic Report. Notwithstanding the November 2016 Directions requiring Mr Rayner to file and serve all evidence on which he relied on or before 15 December 2016, the Mladenovic Report was not provided to my Chambers until 7.37pm on Friday 3 March 2017, several hours after the hearing had concluded and I had reserved my decision.
[9] Following the Application being remitted to me by the Full Bench I held a directions conference in relation to the matter (Directions Conference). At the Directions Conference which was held on 22 November 2017, HR Products indicated that it did not object to the Mladenovic Report being admitted into evidence but contested its relevance.
[10] At the Directions Conference Mr Rayner indicated that in addition to the Mladenovic Report he also sought to have the following additional documents admitted into evidence (Contested Material):
• Clinical findings and report prepared by Dr Paul Taylor (Taylor Report);
• Workers Compensation Progress Certificates (WC Certificates); and
• Financial information relating to the settlement of the Applicant’s cervical neck injuries claim (Settlement Information).
[11] In the course of the Appeal Mr Rayner made the Full Bench aware of his desire to have the Contested Material admitted however the Full Bench made no findings in relation to those documents.
[12] Directions were issued on 24 November 2017 requiring the parties to make submissions about the relevance of the Mladenovic Report to the issues in dispute (November 2017 Directions). The November 2017 Directions also required the parties to file submissions about the admissibility of the Contested Materials.
[13] On 27 November 2017, HR Products indicated that, if the Taylor Report was admitted into evidence, it would seek leave to have a copy of an independent medical assessment of Mr Rayner undertaken by Dr Michael Bowles (Bowles Assessment) admitted into evidence. HR Products also indicated that in the event that Mr Rayner filed a witness statement by Dr Mladenovic, HR Products would seek leave to obtain, file and serve an assessment of Mr Rayner by a psychologist or psychiatrist selected by HR Products and an accompanying witness statement (Second Opinion Evidence).
[14] Amended Directions were issued on 1 December 2017 inter alia requiring parties to make submissions about the relevance of the Mladenovic Report and the admissibility of the Contested Material and Bowles Assessment (Amended Directions).
[15] The Amended Directions advised that, once a decision was issued in relation to the admissibility of Contested Materials and the Bowles Assessment, the parties would be invited to make submissions about the relevance of any materials which were admitted to the issues in dispute.
[16] On 14 December 2017, Mr Rayner filed:
• Copies of Contested Materials.
• Submissions in relation to admissibility of the Contested Materials.
• Copy of the Mladenovic Report.
• Witness Statement of Dr Mladenovic.
• Submissions in relation to the relevance of the Mladenovic Report.
[17] On 28 December 2017, HR Products filed:
• Submissions in relation to the relevance of the Mladenovic Report.
• Submissions in relation to admissibility of the Contested Materials and Bowles Assessment.
• Copy of the Bowles Assessment.
• Copies of WorkCover WA Certificates, referred to in their submissions about admissibility.
[18] On 3 January 2018 Mr Rayner filed an application for me to recuse myself from determining the Application as remitted by the Full Bench. On the same day HR Products were invited to make any submissions in relation to the Recuse Application.
[19] On 5 January 2018 the parties were directed to advise Chambers whether they wished to make any oral submissions in relation to:
• The relevance of the Mladenovic Report
• The admissibility of the Contested Materials and the Bowles Report.
• The Recuse Application.
[20] On 5 January 2018 Mr Rayner advised Chambers that he wished to make oral submissions. A hearing was held on 19 January 2018 for those submissions to be made. At that hearing Mr Rayner sought leave to obtain and file an additional witness statement by Dr Mladenovic and to have two further documents admitted into evidence. Those documents were described as a PTSD Checklist PCL-C and a DASS Questionnaire (Mental Health Assessment Tools). Subsequently on 15 January 2018 Mr Rayner filed additional submissions in relation to the admissibility of the Mental Health Assessment Tools.
Recuse Application
[21] Mr Rayner submits that I should recuse myself from any further involvement in the determination of the Application on the basis of apprehended bias.
[22] HR Products oppose the recuse application.
[23] Apprehended bias can only be found if it can be said a fair minded and appropriately informed lay observer would reasonably apprehend that the decision maker might not determine the matter in an impartial and unprejudiced way:
“… bias ‘connotes the absence of impartiality’ What constitutes impartiality is more than predilections. It requires the decision-maker’s mind to be so made up or determined in favour of one conclusion, irrespective of the arguments put to him or her.” 1
[24] In ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35]-[36] the Full Court of the Federal Court set out the principles for determining a recuse application noting that:
“…(a) at least the following two steps are involved in a case involving an allegation of apprehended bias:
(i) There must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and
(ii) There must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits;
(b) an allegation of bias against a judge on the basis of prejudgment is a serious matter not the least because it carries with it the suggestion that the judge has failed to honour his or her judicial oath as such might be questioned by the fair-minded observer.” [FOOTNOTES OMMITTED]
[25] The grounds on which Mr Rayner relies for his recuse application are that:
• He was not notified that the Mladenovic Report had been received by Chambers.
• The first instance decision contained extracts of witness statements filed by HR Products which Mr Rayner asserts were “…contrary to the evidence or lack thereof.”
• HR Products and/or their Counsel have made various submissions in relation to the admissibility of documents and foreshadowed a costs application.
[26] The question of whether the Mladenovic Report should have been forwarded to Mr Rayner and the reasons for my decision at the First Hearing were the subject of review by the Full Bench in the course of the Appeal.
[27] On quashing the decision the Full Bench had open to it, the options of determining the Application itself, allocating the Application to another Member to determine or remitting the matter to me to determine. HR Products assert that given these options were put to Mr Rayner by the Full Bench if he had any reasonable concerns about bias he should have made his views know at that time and should not have consented to the matter being remitted to me.
[28] In fact in his submissions in support of the recusal application Mr Rayner concedes that he: “… does not believe that the Deputy President is Biased …”
[29] The Full Bench quashed the Decision on the grounds that the Mladenovic Report was not forwarded to Mr Rayner after it was received by Chambers. Chambers having presumed that Dr Mladenovic had also forwarded a copy to Mr Rayner or that Mr Rayner had followed up with Dr Mladenovic to obtain a copy of the report. Mr Rayner did not assert on appeal nor did the Full Bench find that the decision not to forward the Mladenovic Report occurred for any malevolent or improper reason.
[30] The reality of litigation is that in almost every matter before the FWC and any other Tribunal or Court the opposing parties file submissions and make assertions contrary to the views of the other side. Given receiving and reviewing submissions is the bread and butter of a member of any Tribunal and Court I am not of the view that where the other party is served with these materials that any fair minded lay observer would reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to determine.
[31] Mr Rayner also contends that the need for recuse would be alleviated by the withdrawal of the leave granted to HR Products to be represented by Mr Rob Greig of Greig’s Safety and Employment Lawyers (Mr Greig). If the grounds for the recuse application lie with conduct on the part of Mr Greig which has already occurred, then it is unclear how the removal of Mr Greig could make the recuse application unnecessary.
[32] In fact the submission might suggest that the real purpose of the recuse application is to challenge the decision to grant leave for HR Products to be represented by Mr Greig rather than any actual or perceived bias on my part. The decision to grant leave for Mr Greig to represent HR Products in relation to this Application has already been the subject of an unsuccessful appeal by Mr Rayner. 2
[33] In the circumstances, I am of the view that no fair minded lay observer would reasonably apprehend that I would not determine the matter in an impartial and unprejudiced way.
[34] In light of all of the above I am satisfied that it is not necessary to recuse myself from determining the issues remitted to me by the Full Bench.
Relevance of Mladenovic Report
[35] The Mladenovic Report is a report prepared by Dr Mladenovic on 3 March 2017. It is not clear from the report precisely when Dr Mladenovic examined Mr Rayner or the context in which the report was sought. However a reference in the Mladenovic Report to tests conducted a week prior suggest that the examination on which her report was based occurred sometime in the week prior to 3 March 2017.
[36] In her report Dr Mladenovic diagnoses that Mr Rayner is, at the time of assessment, displaying the symptoms of post-traumatic stress which she attributes to three workplace incidents, two which predated the altercation which led to his dismissal. According to Dr Mladenovic the two prior incidents led him to over reacting to minor issues and therefore disproportionally responding in the altercation which led to his dismissal. Dr Mladenovic concludes in her report that Mr Rayner will require five more sessions to manage his symptoms.
[37] In accordance with the November 2017 Directions Mr Rayner filed submissions in relation to the admissibility of the Mladenovic Report (Rayner Admissibility Submissions). Under the heading ‘Report Relevance’ Mr Rayner makes various submissions which go to the relevance of the WC Certificates rather than the Mladenovic Report. However elsewhere in the Rayner Admissibility Submissions Mr Rayner asserts that the Mladenovic Report is relevant to the issues in dispute on the grounds that the Mladenovic Report establishes that:
• HR Products failed to maintain a safe place of work.
• Mr Rayner is suffering behavioural changes.
• Mr Rayner’s behavioural changes are a direct consequence of HR Products failure to maintain a safe place of work.
[38] In the balance of the Rayner Admissibility Submissions Mr Rayner makes various allegations of perjury and adverse action. These allegations have not been formalised as applications and are not relevant to the issue of the relevance of the Mladenovic Report and therefore are not addressed in this decision.
[39] The Mladenovic Report can only be relevant in this Application if it assists in determining whether there was a valid reason for Mr Rayner’s dismissal for the purposes of section 387(a) of the FW Act or if it is another matter relevant to my determination whether Mr Rayner’s dismissal was harsh, unjust or unreasonable for the purposes of section 387(h) of the FW Act.
[40] There is no evidence that Dr Mladenovic was a witness to the altercation or has ever inspected the workplace.
[41] The Mladenovic Report was created on 3 March 2017 based on an examination which appears to have been conducted on or around the last week of February 2017. It was not therefore in existence when the altercation which led to Mr Rayner’s dismissal occurred on 18 August 2016 or when Mr Rayner was dismissed on 30 August 2016. The Mladenovic Report therefore could not have been taken into account by HR Products when it was determining whether to dismiss Mr Rayner.
[42] Notwithstanding this the FWC has a capacity to take the Mladenovic Report into consideration pursuant to section 387(h) of the FW Act.
[43] The Mladenovic Report is evidence of Mr Rayner’s health in late February 2017, some six months after his dismissal.
[44] To the extent that the Mladenovic Report makes reference to events which occurred in the workplace these are merely a record of the information provided to Dr Mladenovic by Mr Rayner and are not proof of these matters. As a registered psychologist Dr Mladenovic can provide expert opinion in relation to Mr Rayner’s mental health as at the time of her assessment. Any view she expresses in relation to the cause and onset of the mental health symptoms which she has diagnosed are limited by the completeness and accuracy of the information she was provided with by Mr Rayner. There is no evidence that Dr Mladenovic was a witness to the altercation or has ever inspected the workplace. Nor is there evidence that she had the benefit of the evidence of any witnesses to the event. Her evidence must be assessed in this light.
[45] HR Products summarily dismissed Mr Rayner for failing to comply with a direction not to take photographs in the workplace and for physically assaulting another employee.
[46] In her report Dr Mladenovic attributes both these actions to symptoms suffered by Mr Rayner as a consequence of two earlier workplace incidents:
“Following the above mentioned incidents, Mr Rayner has been experiencing high levels of anxiety, depression and adjustment issues, this has been evident in his developed fear of being attacked from the back, or being hurt by something falling from the highs; his unpredictable patterns of sleep which are associated with the incidents and generalised fears of being hurt. Mr Rayner noticed that following the first and second incidents he was overacting to minor issues, and lost his sense of safety, therefore the use of the camera. After the third incident, he was completely overwhelmed and his level of tolerance was minimal, therefore the punching back to the other worker. Unfortunately these overreactions resulted in him being dismissed from his job. His levels of hyperarousal were very high, exceeding his window of tolerance.”
[47] The incidents to which Dr Mladenovic refers were the subject of witness evidence at the First Hearing and based on that evidence my findings were that:
[27] On 25 February 2016, a building contractor fell through the ceiling of the lunchroom and landed near Mr Rayner, causing him to spill his cup of tea on his leg causing a scald. The building contractor was uninjured and returned to work. Mr Rayner attended his doctor and had four consultations before being signed off as 100% recovered.3
[28] On 22 April 2016, Mr Rayner fell from a short ladder while picking an order. Mr Olivieri attended to Mr Rayner shortly after the incident, and asked if he needed any treatment. Mr Rayner declined, said that he “was okay”, and returned to work. One week later, Mr Rayner submitted a Worker’s Compensation First medical certificate to HR Products. Mr Rayner was subsequently certified fit for work, albeit with lifting restrictions of 7kgs. Mr Rayner returned to work, and his medical progress and performance were monitored and regular meetings held with his supervisor to discuss these matters.4
[48] The information provided to Dr Mladenovic by Mr Rayner as to the severity and the consequences to his health of these incidents differs significantly from these findings. Notwithstanding the information provided by Mr Rayner to Dr Mladenovic the contemporaneous medical evidence is that Mr Rayner was assessed fit for work shortly after each of those incidents occurred. The weight which can be attributed to Dr Mladenovic’s conclusions must be considered in light of the fact that the information upon which her opinion is based was provided to her exclusively by Mr Rayner and she did not have the benefit of evidence of other witnesses to the incidents. The weight which can be attributed to Dr Mladenovic’s conclusions must also be considered in light of the fact that her assessment was conducted many months after the incidents occurred.
[49] In any event while it may provide a reason for his actions relevant to section 387(h) of the FW Act new evidence that Mr Rayner was suffering from the symptoms of PTSD would not alter the findings of fact and the legal reasoning that led to my decision that HR Products had valid reasons to dismiss Mr Rayner, which was not disturbed by the Full Bench on appeal.
[50] Even if it is the case that Mr Rayner was suffering from the symptoms of PTSD at the time of the altercation this does not alter the factual findings that Mr Rayner physically assaulted Mr Yanev and that he triggered the altercation by disobeying a lawful and reasonable direction not to take photographs in the workplace. Nor does it alter the conclusion that in the context that Mr Rayner had a continuous history of poor performance, was on a final warning, had behaved in an aggressive, threatening manner, and had a belligerent attitude in communications with Mr Olivieri and Mr Saffioti, and such conduct formed a valid reason for his dismissal.
[51] Section 387(h) requires me in considering whether I am satisfied that a dismissal was harsh, unjust or unreasonable and to take into account any other matters that I consider relevant. I have taken into account Dr Mladenovic’s evidence and attached appropriate weight, given that it was formed many months after the incidents and was based on information provided exclusively by Mr Rayner.
[52] Dr Mladenovic’s professional opinion is that Mr Rayner would require five more sessions of counselling to equip him with the skills to manage his symptoms. Had Mr Rayner sought this assistance at the time of the first incident or the second incident then it would be reasonable to anticipate based on the evidence of Dr Mladenovic that he would not have overacted to minor incidents and therefore the altercation which led to his dismissal would not have occurred.
[53] HR Products had no power to compel Mr Rayner to seek medical treatment. Given that he was certified fit to return to work after both incidents there is no basis on which they could have deemed him unfit for work and avoided placing him in a position where he might overreact. HR Products have an obligation to ensure the safety of all their employees and an entitlement to have employees comply with reasonable lawful directions.
[54] The evidence of Dr Mladenovic does not alter my view that in the circumstances, Mr Rayner’s dismissal was not harsh, unjust or unreasonable.
Admissibility of Contested Material and Bowles Assessment
[55] The Taylor Report is a report prepared by Mr Paul Taylor a spine surgeon on 7 July 2017 in response to a 6 June 2017 request from Ms Denise Chesworth of Perth City Legal. The Taylor Report reveals that Mr Rayner was first examined by Mr Taylor on 4 April 2017 and that Mr Taylor has not reviewed Mr Rayner since that time. The Taylor Report records that Mr Rayner reported suffering ongoing symptoms since the altercation which led to his dismissal. The Taylor Report identifies the altercation as the “more probable than not” cause of Mr Rayner’s current symptoms but records that Mr Rayner suffers a pre-existing non work related condition. The Taylor Report recommends that Mr Rayner undergo surgery, the cost of which Mr Taylor attributes 50% to a condition which pre-existed Mr Rayner’s workplace injuries, 10% to his first workplace injury and 40% to the altercation which led to his dismissal.
[56] The WC Certificates record the progression of Mr Rayner’s treatment for his workplace injuries. The WC Certificates are dated 1 September 2016, 13 October 2016, 8 September 2016 and 22 September 2016.
[57] Mr Rayner submits that the Contested Material should be admitted because it is relevant to the issues in dispute, reliable, first hand, probative and lawfully obtained. Mr Rayner asserts that the Contested Materials are relevant to the question of whether the blow struck by the other employee was retaliatory or “aggressive and hostile” and to the force of the blow.
[58] HR Products submit that the Contested Material should not be admitted because it is not relevant to the issues being determined.
[59] The altercation occurred on 18 August 2016. Mr Rayner was dismissed on 30 August 2016. At the conciliation conference held on 6 October 2016 it was explained to Mr Rayner that if the matter proceeded to hearing he would need to substantiate his assertion that he was unfairly dismissed with documentary and/or witness evidence and that directions would be issued which would provide a schedule for the filing of these materials.
[60] The November 2016 Directions which identified the materials to be filed and the filing dates were accompanied by guidance materials in relation to the preparation and filing of materials. The November 2016 Directions warned that:
“Compliance with these directions is mandatory and a failure to comply may disadvantage the party concerned”
[61] HR Products filed their materials on 29 December 2016. From this date Mr Rayner was on notice of the case HR Products proposed to rely on to resist his claim for an unfair dismissal remedy. It is clear from the materials filed by both parties that the severity of the injury suffered by Mr Rayner in the altercation was in dispute from the time of the workplace investigation into the altercation.
[62] Mr Rayner was clearly aware of the importance of documentary and oral evidence given his interlocutory application on 7 February 2017 for Orders to Produce in relation to which I issued a decision on 24 February 2017 at [2017] FWC 948.
[63] The First Hearing held on 3 March 2017 did not occur until 4 months after the conciliation conference. According to the Taylor Report, Mr Rayner was symptomatic from the date of the altercation. Mr Rayner could have obtained evidence of medical opinion as to the cause of these symptoms at any time from 30 August 2016 and chose not do so.
[64] Mr Rayner’s legal representative did not request the Taylor Report until 6 June 2017 three months after the First Hearing and two months after Mr Rayner was seen by Mr Taylor.
[65] The WC Certificates existence predates both the filing dates and the First Hearing.
[66] Unlike the Mladenovic Report Mr Rayner did not seek to tender the Taylor Report or the WC Certificates during the first instance hearing.
[67] By now seeking to tender the Taylor Report, Mr Rayner is seeking to have evidence admitted which should have been available within the filing dates contained within the November 2016 Directions and certainly before the 3 March 2017 hearing date. The evidence is that Mr Rayner did not seek to obtain this evidence until 6 June 2017. It would appear that he has done so to address evidentiary gaps in his case at first instance in relation to issues in contention from the outset of the matter.
[68] Section 577 of the FW Act requires the FWC to exercise its powers in a manner that is quick, fair and just.
[69] To allow parties to re-ventilate their case with materials that existed prior to the initial hearing or which could have been obtained prior to the initial hearing of their matter, relevant to matters which the party were put on notice were in contest, would unduly delay the resolution of applications and would be unfair and unjust to the party which complied with the directions and answered the case which was put at hearing.
[70] The FWC has noted on a number of occasions, it is not the function of the appeal process to provide a further opportunity for unsuccessful parties to redress perceived deficiencies in their case at first instance.5 As the High Court put it in Metwally v University of Wollongong:
‘It is elementary that a party is bound by the conduct of his case.’ 6
[71] In the course of the Appeal Mr Rayner made the Full Bench aware of his desire to have the Contested Material admitted however the Full Bench made no findings in relation to those documents. The Full Bench found that the only procedural unfairness which Mr Rayner suffered at first instance was the lost opportunity to seek to have the Mladenovic Report admitted after I had reserved but before I had issued my decision.
[72] I have therefore determined not to admit the Contested Materials. HR Products sought leave to tender the Bowles Report in the event that the Taylor Report was admitted. Having declined to admit the Taylor Report it is not necessary for me to consider the admissibility of the Bowles Report.
Admissibility of Mental Health Assessment Tools
[73] The hearing on 19 January 2018 was intended to provide an opportunity for oral submissions with respect to the Recuse Application and with respect to the admissibility of the Contested Materials and Bowles Assessment. However at that hearing Mr Rayner also sought leave to obtain and have admitted an additional witness statement from Dr Mladenovic and have the Mental Health Assessment Tools admitted.
[74] Mr Rayner submits that both the additional witness statement and the Mental Health Assessment Tools should be admitted on the grounds that they were referred to in the Mladenovic Report and are necessary to: “get to the truth, above all else” of the issues to be determined.
[75] According to Dr Mladenovic she has been treating Mr Rayner since December 2016. Mr Rayner had the opportunity to call Dr Mladenovic as a witness at the First Hearing held on 3 March 2017.
[76] The November 2016 Directions clearly stated that all of Mr Rayner’s witness and documentary evidence was required to be filed by Thursday 15 December 2016. The November 2016 Directions were accompanied by guidance materials in relation to the preparation and filing of witness statements and documentary evidence. The November 2016 Directions warned that:
“Compliance with these directions is mandatory and a failure to comply may disadvantage the party concerned”
[77] Mr Rayner was clearly aware of the importance of documentary and oral evidence given his interlocutory application on 7 February 2017 for Orders to Produce in relation to which I issued a decision on 24 February 2017 at [2017] FWC 948.
[78] Mr Rayner elected not to call Dr Mladenovic as a witness the First Hearing held on 3 March 2017 and merely sought to rely on the report she was then preparing.
[79] Mr Rayner could have sought the leave of the Full Bench at the Appeal to have the Mental Health Assessments admitted as he did with the Mladenovic Report but did not do so.
[80] At the Directions Conference held on 22 November 2017 after the matter was remitted to me Mr Rayner sought to have a number of additional documents admitted into evidence. These materials did not include the Mental Health Assessments.
[81] It was not until the hearing on 19 January 2018 which was intended to give Mr Rayner the opportunity to make oral submissions with respect to the relevance of the Mladenovic Report, the admissibility of the Contested Materials, the Bowles Report and the Recuse Application that Mr Rayner sought leave to obtain and file a further witness statement from Dr Mladenovic and to have the Mental Health Assessments admitted.
[82] Section 577 of the FW Act requires the FWC to exercise its powers in a manner that is quick, fair and just.
[83] To allow parties to re-ventilate their case with materials that could have been obtained prior to the initial hearing of their matter relevant to matters which the party was on notice were in contest would unduly delay the resolution of applications. It would also be unfair and unjust to the party which complied with the directions and answered the case which was put at hearing to allow this to occur.
[84] As noted earlier in this decision it is not the function of the appeal process to provide a further opportunity for unsuccessful parties to redress perceived deficiencies in their case at first instance.7
[85] Mr Rayner has had multiple opportunities to file and serve this evidence. As a matter of fairness to HR Products there comes a point where they should not have to continue to incur legal expenses and respond to new evidence which Mr Rayner has had multiple opportunities to seek to admit earlier in proceedings.
[86] For these reasons I will not admit the Mental Health Assessments or grant leave for Mr Rayner to file an additional witness statement from Dr Mladenovic.
Conclusions
[87] Having admitted the Mladenovic Report and attached the appropriate weight to it for the reasons set out at [96], [98], [102], [106], [112], [114] and [121] of my decision [2017] FWC 1652, I remain satisfied that the dismissal of Mr Rayner was not, in all the circumstances harsh, unjust or unreasonable. Accordingly, I find Mr Rayner’s dismissal was not unfair, and his application is dismissed.
[88] An order PR600174 to this effect will be issued with this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR600173>
Appearances:
D Rayner, Applicant.
R Greig of Greig’s Safety and Employment Lawyers Pty Ltd for the Respondent.
Hearing details:
2018.
Perth:
January 19.
Final written submissions:
Applicant, 22 January 2018.
1 Metro Trains Melbourne Pty Ltd v ARTBU, CEPU, APESMA[2013] FWC 4034 at [32].
2 Rayner v Little Moreton Pty Ltd[2017] FWCFB 756.
3Rayner v Little Moreton Pty Ltd[2017] FWC 1652 at [27].
4 Ibid at [28].
5 See Linfox Australia Pty Ltd v Howell [2018] FWCFB 464 at [61].
6 (1985) 60 ALR 68, 71.
7 See Linfox Australia Pty Ltd v Howell [2018] FWCFB 464 at [61].
Printed by authority of the Commonwealth Government Printer
<PR600173>
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