Janine Budden v Finke Enterprises Pty Ltd ATF M&L Carlson Family Trust t/a Fused Cafe Pender Place

[2016] FWC 2193

[2016] FWC 2193

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009
s.604 - Appeal of decisions

Janine Budden
v
Finke Enterprises Pty Ltd ATF M&L Carlson Family Trust t/a Fused Cafe Pender Place
(C2016/2721)

VICE PRESIDENT HATCHER SYDNEY, 20 APRIL 2016

Appeal against decision [2016] FWC 562 of Commissioner Saunders at Newcastle on 8 February 2016 in matter number U2015/13072.

[1] On 25 February 2016 Ms Janine Budden filed a notice of appeal against a decision of Commissioner Saunders issued on 8 February 2016 in which the Commissioner dismissed Ms Budden’s application for an unfair dismissal remedy. The appeal was allocated to the permission to appeal roster and was listed for hearing on 17 March 2016 concerning the issue of permission to appeal only. On 2 March 2016 Ms Lauren Carlson, a Director of Finke Enterprises Pty Ltd ATF M&L Carlson Family Trust t/a Fused Cafe Pender Place (Fused Café) requested that the matter be adjourned until the end of August 2016 as her husband Mr Michael Carlson, who is also a Director of Fused Café and who was acting as her representative, was not available until that time. On 3 March 2016 the matter was adjourned due to “representative unavailability” to a date to be fixed in August or September 2016.

[2] On 29 March 2016 I listed the matter for a telephone mention and directions to determine whether the appeal could be dealt with more expeditiously. At the directions hearing I raised the following two alternatives for the disposition of the matter:

(1) Under s.607(1) of the Fair Work Act 2009 the Full Bench could determine the appeal on the basis of written submissions only and without the need for the parties to make oral submissions at a formal hearing if both parties consented to that course.

(2) The Commission could make arrangements for the parties to be represented at the hearing by qualified lawyers on a pro bono basis.

[3] Ms Budden indicated that either of these alternatives would be suitable to her. Ms Carlson indicated that she did not wish for the matter to be determined on the papers and that she wanted to confer with her husband before deciding whether the second option would be suitable. On 1 April 2016 Ms Carlson emailed the Commission stating “My husband and I will proceed with him representing use [sic] in August or September as per original request”.

[4] The Appeal Proceedings Practice Note states that an appeal will generally “be listed for hearing within 12 weeks after the lodgement of the appeal”. Where a matter is allocated to the permission to appeal roster as it was here, the matter should be listed for hearing in the month following the date it was lodged.

[5] Taking these considerations into account the Commission directs as follows:

(1) The respondent shall file in the Commission and serve on the appellant submissions not exceeding 3 pages in length identifying why the appeal cannot proceed without Ms Carlson being represented by her husband in circumstances where she has the capacity to deal with the appeal by way of written submissions or with representation by lawyers on a pro bono basis, by 5.00pm Thursday 28 April 2016.

(2) If the respondent wishes for a confidentiality order to be made in relation to the submissions referred to in direction (1) above, she should request that in her submissions.

(3) The appellant shall file in the Commission and serve on the respondent any submissions in reply by 5.00pm Thursday 5 May 2016.

[6] Once the submissions have been received a final decision will be made regarding the listing of the matter.

VICE PRESIDENT

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