Robert Goodfellow v Jardine Lloyd Thompson Pty Ltd

[2019] FWC 6918

[2019] FWC 6918

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Robert Goodfellow

v

Jardine Lloyd Thompson Pty Ltd

(U2019/6635)

Deputy President Beaumont PERTH, 8 OCTOBER 2019

Application for an unfair dismissal remedy – Setting aside an Order to attend before the Fair Work Commission

1. This decision concerns an application to set aside an order requiring Dr Lawrence Terace to attend the Fair Work Commission (the Commission) to give evidence at the hearing of an unfair dismissal remedy application made by Mr Robert Goodfellow.  

1. Jardine Lloyd Thompson Pty Ltd (Jardine) had dismissed Mr Goodfellow based on medical documentation that Mr Goodfellow had provided.  Jardine expressed that it had formed the view that the employment relationship had become frustrated because of Mr Goodfellow’s inability to perform the inherent requirements of his role currently or in the foreseeable future. 

Background

1. On 18 September 2019, Mr Goodfellow submitted a Form F51 application for an order requiring a person to attend before the Commission.  The relevant person was a Dr Terace who had assessed Mr Goodfellow’s fitness for work on two occasions and had generated two medical reports.  On 25 September 2019, having considered the submissions of both Mr Goodfellow and Jardine, I issued an order requiring Dr Terace to attend the Commission at 9.00am on Tuesday, 15 October 2019.[1]  Subsequently, an amended Order was issued on 2 October 2019, requiring a change of date to Wednesday, 16 October 2019 (the Order).[2]

1. Initially, Dr Terace sought to have the Order set aside on various grounds.  With respect to Dr Terace, several of the grounds he relied upon were absent merit.  By way of example, Dr Terace noted that he was unable to determine if Mr Goodfellow was unreasonably treated as it related to Mr Goodfellow’s application for an unfair dismissal remedy.  However, Dr Terace appears to be under a misapprehension as to why he was called to give evidence; the reason why he was subject to such an order was to provide evidence on his medical assessments of Mr Goodfellow and the reports generated, as far as they related to Mr Goodfellow’s fitness for work.  Given that Mr Goodfellow was dismissed based on an inability to meet the inherent requirements of his role at the time of dismissal and in the foreseeable future, Dr Terace’s evidence appeared relevant in this respect.  

1. However, I observe that the Order did provide limited time in which Dr Terace could re-schedule appointments.  Dr Terace referred to professional commitments on the date he was required to attend the Commission, noting that such commitments could not be deferred at such short notice.

1. Mr Goodfellow, who had applied to have the Order granted, informed the Commission by email dated 2 October 2019 that he now preferred the Order be set aside.  In his email, Mr Goodfellow stated that he questioned the evidentiary value of Dr Terace, given that I had declined to issue orders for two other persons.  Further, having been informed that he would incur fees for Dr Terace’s attendance and that the Commission would not pay such attendance fees, Mr Goodfellow was not positioned to potentially incur such fees.

Consideration

1. Having considered Mr Goodfellow’s submissions, I have formed the view that while Dr Terace’s evidence remains relevant to the issues to be determined, Mr Goodfellow’s concerns regarding Dr Terace’s attendance fees form a legitimate reason to set aside the Order.  This is particularly the case where Mr Goodfellow now questions the evidentiary value of Dr Terrace’s evidence insofar that it advances his case.

Conclusion

1. It follows that there are sufficient reasons to set aside the Order the Commission has previously issued that obliges Dr Terace to attend the Commission and give evidence on Wednesday, 16 October 2019.  The Order the Commission has made under section 590(2) (a) of the Act is set aside. An order to that effect will now be issued.

DEPUTY PRESIDENT

<PR713097>

[1] PR712786. 

[2] PR712786. 

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