Ms Toni-Lee Birch v Active Hearing Pty Ltd T/A Bloom Hearing Specialists

[2015] FWC 8044

[2015] FWC 8044

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Toni-Lee Birch
v
Active Hearing Pty Ltd T/A Bloom Hearing Specialists
(U2015/10216)

DEPUTY PRESIDENT ASBURY BRISBANE, 23 NOVEMBER 2015

Application for relief from unfair dismissal - adjournment request.

[1] This Decision concerns an application for unfair dismissal remedy made by Ms Toni-Lee Birch alleging that her dismissal from her employment by Active Hearing Pty Ltd T/A Bloom Hearing Specialists (Active Hearing) was unfair. Active Hearing has raised a jurisdictional objection to the application, alleging that Ms Birch was not dismissed.

[2] The application is currently listed for Jurisdictional Hearing on 15 December 2015 before a Member of the Fair Work Commission (the Commission). The matter will be heard by video link to Townsville. Ms Birch is represented by Mr Peter Raffles, of Counsel. Active Hearing is represented by Mr Paul O’Halloran, Partner of FCB Workplace Law.

[3] On 16 November 2015, Ms Birch, through Counsel, applied for an adjournment of the Jurisdictional Hearing and that the Commission vacate the Directions of 22 October 2015 requiring that she file material in reply to the jurisdictional objection (the application). Active Hearing objects to the application. Both parties have filed written submissions regarding the application and have consented to the application being determined on the papers.

Submissions

[4] Mr Raffles applies for an adjournment on the basis that Ms Birch is suffering from a medical condition and will be unable to comply with the Directions of the Commission requiring that she file material in reply to the jurisdictional objection of Active Hearing by 20 November 2015 and, further, that she will be unable to attend the Jurisdictional Hearing on 15 December 2015. Attached to the application for an adjournment is a medical certificate dated 16 November 2015. The medical certificate states that Ms Birch is receiving medical treatment for the period 16 November 2015 to 16 December 2015.

[5] The matter has been allocated to me for the purpose of determining whether an adjournment should be granted and the dates in the Directions Order vacated.

[6] On 17 November 2015, Active Hearing filed submissions in relation to the application. Active Hearing objects to the application on the grounds that, at the time of filing its submissions, the medical evidence regarding Ms Birch’s condition does not disclose the nature of the condition, the treatment being undertaken or the qualifications of the medical practitioner who issued the medical certificate. Further, Active Hearing submits that the medical certificate states that Ms Birch is not fit for her “usual occupation or to undertake activities related to her work”. As Ms Birch is not required to undertake either of those activities in preparing for her unfair dismissal Hearing, Active Services submits that there is no impediment to complying with the Directions or attending the Jurisdictional Hearing.

[7] Active Hearing submits that the principles relevant to granting an adjournment were considered in a Decision of the Federal Magistrates Court in C & C 1. Active Hearing submits that Federal Magistrate Walters, as his Honour then was, explained that the Court must have regard to two key principles; the injustice principle, and the court resources principle. In relation to the injustice principle, his Honour stated:

“The injustice principle is a principle well known to lawyers and to the court system. Each of the jurisdictions has its favourite case which states the effect of the principle. The State that I come from, which is Western Australia, relies on Myer [1969] WAR 19 in relation to the injustice principle. In essence it requires the court to balance the potential injustice to each of the parties of an adjournment being granted or refused. If the justice of the case requires an adjournment, then it is to be granted.” 2

[8] Explaining the course resources principles, his Honour stated:

“With effect from approximately 20 years ago, if not more, there has been a concurrent (or countervailing) principle described in Reed as "the court resources principle". That principle emphasises that the days of parties and their practitioners setting time frames for litigation and proceeding leisurely along the track towards a trial are long gone. Modern case management principles, and the huge and multiple pressures on courts, compel judicial officers to ensure that parties move along the litigation pathway at a pace set by the court, and that they do so efficiently.” 3

[9] Following receipt of the submissions in reply to the application, Ms Birch was directed to file further submissions in reply.

[10] Ms Birch submits that decisions of the Federal Magistrates Court are not binding on the Commission and that further, the Commission is an administrative Tribunal, guided by the terms of its empowering legislation. Specifically, Ms Birch refers to the objects provision of the unfair dismissal regime in the Act, which states:

“Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i)  the needs of business (including small business); and
(ii)  the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i)  are quick, flexible and informal; and
(ii)  address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2)  The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.

Note:          The expression "fair go all round" was used by Sheldon J in in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.”

[11] Ms Birch submits that there is no reason to read the injustice principle or the court resources principle into s.381 of the Act.

[12] Ms Birch provides further submissions as to the background facts regarding the medical condition said to form the basis of the application. It is not necessary to set out the full detail of the condition other than to say that Ms Birch has been receiving treatment from a Psychologist and General Practitioner since approximately July 2015. Ms Birch is being treated for an alleged work related injury involving two traffic accidents. Ms Birch has made an application for workers’ compensation, which is contested by Active Hearing. That matter is being dealt with in another jurisdiction. A copy of a Workers’ compensation medical certificate, dated 7 September 2015, is before the Commission.

[13] Mr Raffles states that Ms Birch attended his offices on 16 November 2015 for the purpose of providing instructions in respect of her reply material. During the course of that discussion, Mr Raffles states that Ms Birch became “seriously distressed” and could not continue with the discussions. Ms Birch subsequently attended her medical practitioner, at which time the medical certificate before me was issued. As a result, Mr Raffles states that Ms Birch is unable to provide him with proper instructions to respond to the application. If Ms Birch were directed to comply with the Directions and attend a Hearing it is submitted that Ms Birch would be put at substantial risk to her health and longer-term recovery.

Consideration

[14] C & C is a decision of the Federal Magistrates Court, Family Law Division, under the provisions of the Family Law Act 1975. It is clear from his Honour’s reasons that the particular facts of the matter before the Court were a strong factor in the Court’s decision, as was the administration of justice in that particular Court. The Decision is of limited value in the circumstances of the Commission. I have not been directed to any decision of the Commission or other authority to the effect that the Commission is bound by either principle. I do not accept that the Commission is. However, I accept that the principles enunciate matters that would ordinarily be considered by the Commission in any event.

[15] Ms Birch is represented by Counsel who has stated that she became distressed while attempting to provide instructions during a conference with Counsel on 16 November 2015. Counsel also states that in his view Ms Birch will not be in a position to provide instructions to comply with Directions or participate in a hearing. Ms Birch’s material was required to be filed by Friday, 20 November 2015 and if the matter is not adjourned she will be at risk of an application to strike it out on the basis of non-compliance. Ms Birch is currently under medical care and will remain so for a period that includes the hearing date as currently listed.

[16] I have determined to grant the adjournment request and to vacate the current Directions requiring Ms Birch to file her material in reply. I do so on the basis that I am satisfied that at present Ms Birch’s medical condition prevents her from appropriately providing instruction to her representative and participating in the Jurisdictional Hearing. Ms Birch must have an opportunity to respond to the jurisdictional objection against her application for unfair dismissal remedy. The particular questions that will arise in relation to the jurisdictional objection may be complex; legally and factually.

[17] I have also considered that Active Hearing has not submitted that it will suffer any prejudice by the application being granted. On balance it would be unfair to refuse the adjournment application and to decline to vacate the Directions Order.

[18] The listing for Jurisdictional Hearing on 15 December 2015 is vacated. The Directions of 22 October 2015 are vacated. Ms Birch is directed to advise my Chambers as to the status of the matter by no later than close of business on Thursday, 17 December 2015. The matter will be mentioned after that date for the purpose of further programming.

DEPUTY PRESIDENT

 1 [2006] FMCAfam 774.

 2 Ibid at [12].

 3 Ibid at [13].

Printed by authority of the Commonwealth Government Printer

<Price code A, PR574248>