Roberts v Willcocks - [2017] FCCA 459

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROBERTS v WILLCOCKS

[2017] FCCA 459

Catchwords:
PRACTICE AND PROCEDURE – Adjournment – dismissal for non-attendance – hearing by video link.

INDUSTRIAL LAW – Unlawful termination from employment in contravention of the Fair Work Act 2009 (Cth) – whether termination due to temporary absence because of illness or injury.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), ss.66 and 67

Cases cited:

AWX16 v Minister for Immigration and Border Protection [2016] FCCA 928
BYF15 v Minister for Immigration and Border Protection [2016] FCA 774
Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No.3) [2009] FCA 1306; (2009) 181 FCR 152
Commissioner of Taxation v Oswal(No.5) [2015] FCA 1504
Ellis v Rottnest Lodge (1989) Pty Ltd (t/as Rottnest Lodge) (No.2) [2017] FCCA 190
Mulherin v Commissioner of Taxation [2013] FCAFC 115; (2013) 96 ATR 835; (2013) ATC 20-423
Myers v Myers [1969] WAR 19
Picos v Healthengine Pty Ltd [2014] FCCA 640
Wint v Medimobile [2016] FCCA 102

Applicant:

SHELLEY ROBERTS

Respondent:

SHARON WILLCOCKS

File Number:

PEG 363 of 2014

Judgment of:

Judge Lucev

Hearing date:

10 March 2017

Date of Last Submission:

10 March 2017

Delivered at:

Perth

Delivered on:

10 March 2017

REPRESENTATION

For the Applicant:

In person, by telephone

Counsel for the Respondent:

Mr T Petherick

Solicitors for the Respondent:

Petherick Cottrell

ORDERS

The hearing listed today be adjourned to a date to be fixed.
The applicant pay the respondent’s costs of today, and costs thrown away, in the sum of $3762 by 10 April 2017.
The applicant have leave to file and serve:
(a)any application in a case in relation to:
(i)any application to change the name of the respondent;
(ii)any request for the adjourned final hearing to heard by video-link between Launceston and Perth; and
(b)any affidavit in support of the application in a case, including any medical evidence and evidence as to the applicant meeting the costs of the video-link,
by 10 April 2017.
The matter otherwise be adjourned to a further directions hearing at 12.30pm (AWST), 2.30pm (AEST) on 5 May 2017, with leave to the applicant to appear at that directions hearing by telephone.

AND THE COURT NOTES THAT these orders have been amended pursuant to r.16.05(2)(e) of the Federal Circuit Court Rules 2001 (Cth) by inserting the words “by 10 April 2017” after paragraph (b) in order 3 and substituting “2.30pm” for “3.30pm” in order 4.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 363 of 2014

SHELLEY ROBERTS

Applicant

And

SHARON WILLCOCKS

Respondent

REASONS FOR JUDGMENT

(Delivered orally at hearing and revised)

The substantive application was filed on 17 November 2014, originally in the small claims list, and alleges unlawful termination under s.772 of the Fair Work Act 2009 (Cth), by reason of a temporary absence from work and seeks remedies including a pecuniary penalty. By order of the Court dated 6 March 2015, the matter was removed from the small claims list and referred for mediation. By an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCCA 459
Decision Date: 10 March 2017

CaseChat Overview and Summary

Roberts (the applicant) brought proceedings in the Federal Circuit Court of Australia against Willcocks (the respondent) alleging unlawful termination of employment in contravention of the *Fair Work Act 2009* (Cth). The central dispute concerned whether the applicant's termination was due to a temporary absence from work because of illness or injury.

The court was required to determine two primary legal issues. Firstly, whether the applicant's absence from work was a temporary absence due to illness or injury, which would render the termination unlawful under section 352 of the *Fair Work Act 2009* (Cth). Secondly, the court had to consider whether to grant an adjournment of the hearing, which had been sought by the applicant due to their inability to attend in person, and the implications of non-attendance for the proceedings.

In his Honour's reasoning, Judge Lucev noted that the applicant had failed to attend the scheduled hearing, despite being notified of the date and time. The applicant had sought an adjournment, citing a medical condition preventing their attendance, and requested the hearing proceed via video link. However, the court found that the applicant had not provided sufficient evidence to substantiate their claim of illness or injury, nor had they demonstrated a genuine inability to attend the hearing. The court applied the principles relating to adjournments, emphasizing the need for compelling reasons and adequate supporting evidence. Given the lack of satisfactory explanation for the non-attendance and the applicant's failure to comply with procedural requirements, the court determined that it was not in the interests of justice to grant an adjournment.

Consequently, the court dismissed the applicant's application for unlawful termination.

Orders