Ms Eva Elisabeth Johansson v Edge Early Learning Administration Pty Limited

[2024] FWCFB 344

[2024] FWCFB 344

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Ms Eva Elisabeth Johansson
v

Edge Early Learning Administration Pty Limited

(C2024/3811)

VICE PRESIDENT GIBIAN
DEPUTY PRESIDENT EASTON
DEPUTY PRESIDENT GRAYSON SYDNEY, 15 AUGUST 2024

Appeal against decision [2024] FWC 1322 of Commissioner Hunt at Brisbane on 20 May 2024 in matter number C2023/6517 – interlocutory decision – adjournment application – adjournment application refused – balance of interests between the parties.

1. Ms Eva Elisabeth Johansson (Ms Johansson or appellant) has requested reasons for the decision to refuse her application for an adjournment. The short reasons of the Full Bench for refusing the application for an adjournment are as follows.

1. The appeal in Matter No. C2024/3811 is listed for hearing at 10:00am on Friday 16 August 2024 before a Full Bench of the Fair Work Commission (the Commission). The hearing date for the appeal was allocated some time ago and the parties have prepared and filed submissions and other materials to facilitate the hearing of the appeal. The appeal relates to a single decision of a member of the Commission under s 366(1)(b) of the Fair Work Act 2009 (Cth) (the Act) to refuse the appellant an extension of time to make an application under s 365 of the Act.

1. The appellant applied for an adjournment of the hearing of the appeal by email message received at 8:57am on Thursday 15 August 2024. The ostensible reason provided for seeking an adjournment related to the loss of a USB device which was described as containing “all information regarding this General Protections complaint”. The appellant also refers to various events which have caused her to be under extreme pressure, very distressed and exhausted. It is unnecessary to describe those events for the purposes of these reasons.

1. The Commission’s members are bound to act in a judicial manner and to observe procedural fairness in carrying out their functions: Galloway v Molina and Zhai[2021] FWCFB 5419; (2021) 310 IR 151 at [22]-[29] (Galloway) A Full Bench may make an order adjourning a proceeding if it considers doing so would be appropriate in the interests of justice, taking into account the relevant statutory, factual and case management context: Australia and New Zealand Banking Group Limited v James [2021] FCA 768 at [44]-[45]. The statutory context in which the Commission operates includes that the Commission is required to perform its functions in a manner that is fair and just as well as quick, informal and that avoids unnecessary technicality: s 577(1)(a) and (b).

1. An application for an adjournment should not be lightly entertained and the onus to make good the adjournment application lies with the applicant for the adjournment: Sanford v Austin Clothing Company Pty Ltd trading as Gaz Man (Print S8287, AIRC, Watson SDP, 19 July 2000) at [31]. The granting of an adjournment application, particularly shortly before a hearing, is likely to inconvenience other parties and cause them to incur additional costs.

1. The appropriate use of the resources of the Commission and the interests of other litigants is also relevant. The deferral of a hearing to a future date will, inevitably, interfere with the hearing of other proceedings and result in delays in other litigants having access to the Commission. It has been said that “the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the Court as well as the interests of the parties”: Sali v SPC Ltd (1993) 116 ALR 625 at 629 (Brennan, Deane and McHugh JJ). The same considerations are relevant to the functions of the Commission. It is a busy specialist tribunal that must deal with matters efficiently as well as fairly: Galloway at [28]. This is particularly so in the context of Full Bench proceedings, which require the time and attention of more than one member of the Commission.

1. The Full Bench is not satisfied that the reasons provided are sufficient to justify vacating the hearing listed for tomorrow. The appellant claims to have lost a USB device containing information in relation to hearing general protections claim. The documents which were before the Commissioner at first instance and are relevant to the appeal are contained in an appeal book that was prepared by the Commission and made available to the appellant. The appellant also seeks to rely upon some additional documents in relation to the appeal that she has provided to the Commission by email, and which are available to her. The Commission has also indicated that it will make a hard copy of the appeal book, submissions and other documents filed in the appeal available to the appellant prior to the hearing of the appeal. As such, the documents relevant to the appeal are available to the appellant.

1. The appellant also says she is under pressure, distressed and exhausted as a result of various events, including the Commission proceedings. The Full Bench understands that legal proceedings can be stressful and difficult and that there appear to be other events in the appellant’s life which have caused her stress. The Full Bench has every sympathy with the appellant in that respect. However, the appellant does not claim she is unfit to participate in the appeal and no medical evidence has been provided to suggest that is the case. The stress being experienced by the appellant does not itself justify an adjournment.

1. It is necessary to balance the interests of both the appellant and the respondent. The respondent has presumably incurred costs in preparing for hearing of the appeal listed for 16 August 2024, which it is likely to be unable to recover and would incur additional costs if the hearing of the appeal were deferred to a future date. As has been mentioned, the public interest in the efficient use of the Commission’s resources and the interests of other litigants must also be considered and warrants restraint being exercised in determining whether to grant an adjournment request.

1. In all the circumstances, the Full Bench is not satisfied that sufficient basis has been demonstrated to justify adjourning the hearing of the appeal. The balance of the interests of the parties, and the public interest, favours the hearing of the appeal proceeding as scheduled.

VICE PRESIDENT

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