Mrs Marija Hussey v Springmount Services Pty Ltd T/A Springmount Services

[2019] FWC 2661

[2019] FWC 2661

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mrs Marija Hussey
v
Springmount Services Pty Ltd T/A Springmount Services
(C2018/5958)

COMMISSIONER BOOTH BRISBANE, 7 MAY 2019

Application to deal with contraventions involving dismissal – application to set aside an order requiring a person to attend once issued; s.590(2)(a); Rule 53 of the Fair Work Commission Rules

[1] On 5 March 2019, Mrs Marija Hussey (the Applicant) made two applications under s.590(2)(a) of the Fair Work Act 2009 (the Act) for Orders requiring a person to attend the Fair Work Commission. The applications were made for Dr Peter Vanrietvelde and Mrs Rosemarie Deutschmann to attend to give evidence at the Hearing of the jurisdictional objection to Mrs Hussey’s application. The Orders were issued on 25 March 2019.

[2] On 2 and 3 April 2019, my Chambers received letters from the Cairns West Medical Centre on behalf of Dr Vanrietvelde and Mrs Deutschmann objecting to the Orders to attend in writing. The letters provided that Dr Vanrietvelde and Mrs Deutschmann were “unable to participate in a professional capacity without appropriate remuneration”.

[3] On 2 and 3 April 2019, upon receipt of each letter, I issued directions to the Applicant and to Dr Vanrietvelde and Mrs Deutschmann. The directions provided for the filing of further submissions regarding the objection to the Orders to attend. The directions also made clear that if no submissions were filed, a decision would be made on the material already before the Commission and that this decision would be made on the papers.

[4] Accordingly, this decision is limited to deciding the application to set aside the Orders requiring Dr Vanrietvelde and Mrs Deutschmann to attend at the Hearing.

[5] No further material was received from Dr Vanrietvelde, nor Mrs Deutschmann. Mrs Hussey filed further submissions as to why she required Dr Vanrietvelde and Mrs Deutschmann to attend on 15 April 2019.

Background

[6] The status of the matter to date, as relevant to this decision, can be summarised as follows.

[7] On 24 October 2018, Mrs Hussey filed her general protections application involving dismissal under s.365 of the Act. The Employer, Springmount Services, objected to her application on the ground that it was filed outside the statutory time limit and an extension must be granted before the application can progress.

[8] On 9 January 2019, Mrs Hussey filed submissions and evidence in support of the granting of an extension of time. That material included a psychologist’s report issued by Mrs Rosemarie Deutschmann on 10 December 2018. Mrs Deutschmann’s report stated that Mrs Hussey had been referred to her by her general practitioner, Dr Peter Vanrietvelde, from 6 July 2018.

[9] On 31 January 2019, Mrs Hussey provided to the Commission a series of medical certificates issued by Dr Vanrietvelde in respect of her health between 28 June 2018 and 23 September 2018, as relevant to her application to extend time.

[10] On 5 February 2019, I listed the matter for a telephone conference to discuss the programming for the Hearing on the application to extend time.

[11] At the conference, it was discussed whether Dr Vanrietvelde and Mrs Deutschmann could provide witness statements in support of Mrs Hussey’s application to extend time. Mrs Hussey advised that she had been informed by the Cairns West Medical Centre that there was a cost associated with the preparation of those statements and that she could not afford it. The Employer’s representative, Mr Craig Pollard of CTMA Workplace Consulting, advised in any event that he would likely require Dr Vanrietvelde and Mrs Deutschmann for cross-examination.

[12] Mrs Hussey then applied to the Commission for Orders requiring Dr Vanrietvelde and Mrs Deutschmann to attend at the hearing. Mrs Hussey did so on 5 March 2019 and the Orders were issued on 25 March 2019.

Submissions

[13] Mrs Hussey submits that having Dr Vanrietvelde and Mrs Deutschmann attend at the Hearing is vital to her case, as those medical professionals will be able to answer questions regarding the trauma and anxiety Mrs Hussey experienced as a cleaner at Springmount Services.

[14] Mrs Hussey submits further that, as medical professionals, Dr Vanrietvelde & Mrs Deutschmann have professional knowledge and understanding of Mrs Hussey’s condition and how the subsequent impact of it prevented her from submitting her application in time. Mrs Hussey says that Dr Vanrietvelde and Mrs Deutschmann will be able to convey complex information simply and in layman’s terms to provide answers to the Respondent and the Commission at the Hearing.

[15] Mrs Hussey also submits that she was made aware that Dr Vanrietvelde and Mrs Deutschmann would be unwilling to attend a hearing without payment of a fee, but that she is not in the financial position to afford the fee for either medical professional.

Legislation

[16] Section 590 of the Act relevantly provides that:

“590 Powers of the FWC to inform itself

(1) The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2) Without limiting subsection (1), the FWC may inform itself in the following ways:

(a) by requiring a person to attend before the FWC;

…”

[17] Rule 53 of the Fair Work Commission Rules 2013 (FWC Rules) provides that:

“53 Order for witness to attend

(1) A party in a matter before the Commission may, by lodging a draft order, request that the Commission inform itself in relation to the matter by issuing an order requiring a person to attend before the Commission under subsection 590(2) of the Act.

Note: The request must be in the approved form—see subrule 8(2).

(2) If the order is made, the party who requested the order must, as soon as practicable after the order is made, serve a signed copy of the order upon the person who is required to attend before the Commission.”

[18] A person who is ordered to attend a hearing or a party having sufficient interest can request to have an order to attend set aside or varied. The request must be in writing and set out the reasons why the person is seeking to have the order set aside or varied.

Consideration

[19] According to the words of s.590, my task is to consider whether it is appropriate that the Commission be informed of matters relevant to the application to extend time by the attendance of Dr Vanrietvelde and Mrs Deutschmann at the Hearing.

[20] In assessing the appropriateness of the Orders to attend, I have considered the option of simply having Mrs Hussey file witness statements from Dr Vanrietvelde and Mrs Deutschmann and presenting the evidence in that manner. However, this is clearly inappropriate in circumstances where the Respondent wishes to and is entitled to cross-examine both witnesses.

[21] I am of the view that there is utility in having Dr Vanrietvelde and Mrs Deutschmann attend at the Hearing as witnesses for Mrs Hussey. My view is shared by the both the Applicant and Respondent to the substantive proceedings.

[22] I accept that there is a financial cost or at least a loss of an opportunity to earn income for the time that Dr Vanrietvelde and Mrs Deutschmann appear by telephone as witnesses. However Dr Vanrietvelde and Mrs Deutschmann are no different from any other witness required to attend at a hearing. Their evidence is relevant to the question to be determined because, on Mrs Hussey’s evidence, it will explain why she was unable to file her application within the statutory time limit and that they have professional understanding of Mrs Hussey’s condition and how it impacted on her capacity to file her application. Having concluded that their evidence is relevant, it is then appropriate that the witnesses are made available to the Employer for cross-examination.

[23] The Orders for Dr Vanrietvelde and Mrs Deutschmann to attend the hearing to give evidence are not oppressive. Indeed, Dr Vanrietvelde and Mrs Deutschmann were given the opportunity to provide my Chambers with the most appropriate time to give their evidence, in recognition of their likely busy schedule of medical appointments throughout a given day. Additionally, the evidence is to be provided by telephone rather than in person.

[24] Finally, the inconvenience and potential financial cost to Dr Vanrietvelde and Mrs Deutschmann is nothing out of the ordinary and is similar to that commonly experienced by witnesses who give evidence in proceedings before the Commission.

Conclusion

[25] The applications to set aside each Order of the Commission made under section 590(2)(a) of the Act are dismissed. An order to that effect will issue with this decision.

COMMISSIONER

Hearing details:

Hearing on the papers

Final written submissions:

15 April 2019

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