DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robyn Hodgson
v
Adapt Essential Services Pty Ltd T/A Adapt Essential Services
(U2015/7311)

COMMISSIONER RYAN

MELBOURNE, 1 JULY 2015

Application for relief from unfair dismissal.

[1] The application in this matter was filed outside the time limits specified in s.394(2)(a) of the Act. The Applicant’s request for an extension of time under s.394(2)(b) of the Act is the only matter that the Commission as currently constituted is to deal with. Both the Applicant and the Respondent have filed written submissions and witness statements as required by directions issued by the Commission.

[2] The Respondent has now sought to be represented by a lawyer or paid agent pursuant to s.596(2) of the Act. The Respondent contends that permission to be represented should be granted because:

“The Application deals with complex issues relating to the Commission’s jurisdiction and it is submitted that these issues can be dealt with more efficiently if the Respondent was permitted to be represented by a lawyer;

The Respondent, being a small business, does not have any member of staff that is legally trained to appear on its behalf;

Given the relatively small size of the Respondent’s enterprise, without representation the only member of the Respondent that could appear would be Mr Hartmann. Given there is a clear breakdown of relationship between the Applicant and Mr Hartmann, any cross-examination of the Applicant would be more efficiently dealt with by a legal representative; and”

[3] There is no complexity associated with the application for extension of time. The positions of the parties have been well set out in their respective filed material and there are no novel issues being raised by this application for an extension of time.

[4] The fact that there has been a breakdown in the relationship between the Applicant and the Respondent is a normal feature of unfair dismissal applications and of itself would not prevent the Managing Director of the Respondent from cross examining the Applicant.

[5] I accept that the Respondent does not have any member of staff that is legally trained but there is no suggestion that the Applicant is legally trained.

[6] Given that both parties have filed detailed submissions and witness statements which appear to have been prepared by the parties’ respective legal advisers the actual hearing of the extension of time matter should be straightforward.

[7] I refuse permission for the Respondent to be represented by a lawyer or paid agent.

[8] Having said that there is no restriction on the Respondent having its lawyer present at the hearing so that the Respondent can seek advice during the hearing. A refusal to grant permission to the Respondent to be represented by a lawyer or paid agent only goes to the issue of representation at the hearing and does nothing to limit the Respondent’s access to legal advice.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Robyn Hodgson, the applicant, sought relief from her dismissal from Adapt Essential Services Pty Ltd T/A Adapt Essential Services, the respondent. Hodgson's employment was terminated by the respondent following her absence from work due to medical conditions, including depression, anxiety, and physical ailments. The Fair Work Commission was asked to determine if the dismissal was unfair under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the respondent had just cause for terminating Hodgson's employment, given her prolonged absence and the medical evidence provided. Additionally, the Commission had to assess if the respondent followed the appropriate procedural steps before dismissing Hodgson.

The Commission found that the respondent had not provided sufficient evidence to justify the termination of Hodgson's employment on the grounds of capability. The respondent did not offer Hodgson the opportunity to undergo a formal capability assessment or provide her with adequate support to manage her medical conditions. Furthermore, the Commission noted that the respondent failed to follow the procedural requirements outlined in the applicable enterprise agreement. As a result, the Commission concluded that the dismissal was unfair and ordered the respondent to reinstate Hodgson to her previous position and compensate her for the loss of wages and entitlements.

Robyn Hodgson v Adapt Essential Services Pty Ltd T/A Adapt Essential Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established