Sarah Nadenbousch (Sheard) v Victorian Institute of Forensic Mental Health
[2024] FWC 1291
•16 MAY 2024
| [2024] FWC 1291 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Sarah Nadenbousch (Sheard)
v
Victorian Institute of Forensic Mental Health
(C2024/1537)
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 16 MAY 2024 |
Application to deal with contraventions involving dismissal
The Applicant filed a Form F51 at 3:07PM on 15 May 2024, seeking an order requiring 6 persons to attend the hearing of this matter which is listed to be heard on 17 and 20 May 2024.
The Respondent objected to the orders being made and sought to be heard. The matter was heard at noon on 16 May 2024. Shortly before the hearing, the Respondent filed written submissions opposing the orders.
Given that the orders relate to the attendance of persons at a hearing commencing tomorrow, my reasons for Decision are necessarily very brief.
The application was not pressed in respect of two of the persons, but was pressed in relation to Ms Kate Douglass, Mr Mark Carter, Mr Colman O’Driscoll and Ms Jessica Lightfoot. Each are senior employees of the Respondent.
The application provided scant details of the evidence these persons were expected to give, nor how it would be relevant to the jurisdictional objection being determined. The application essentially contended that the persons could give evidence as to why key actions were or were not taken in relation to the dispute. At the hearing, limited further explanation was provided, and the Applicant’s representative declined an opportunity offered to make any further response to the Respondent’s submissions.
The application has been made less than 2 days before the hearing commences. There is no acceptable explanation for the lateness of the application. The matter was originally listed for hearing on 10 May 2024, with directions that the Respondent file its evidence and submissions by 19 April, the Applicant by 26 April and Reply material of the Respondent by 3 May.
At a Mention on 12 April 2024, the Applicant indicated she intended to call five witnesses. The Respondent indicated it intended to call two. Subsequently, amended Directions were issued on 15 April 2024, including that the Respondent file by 23 April and the Applicant by 1 May.
The Respondent filed its material on 23 April 2024, including a single witness statement of Gerard White. At this point, it was clear that the Respondent intended to call only one witness.
On 19 April 2024, the Applicant sought an order for the production of documents. The order was issued, and the Respondent objected to it and sought to be heard. That was dealt with on 26 April 2024. At this date, which was before the Applicant was required to file its evidence and submissions, the Applicant repeated its intention to call 5 witnesses. On that basis, further amended directions were issued and the hearing date was moved to 17 May 2024 and extended to 2 days, with the second day being 20 May 2024.
When the Applicant filed her material, only two witness statements were filed.
The Respondent filed Reply material on 13 May 2024, including a supplementary witness statement of Mr White.
The Applicant only made the application at this time, despite it being suitably clear from at least 23 April 2024, that the Respondent was relying on a single witness.
This delay in making the application is a strong discretionary consideration against the making of the orders sought.
One of the grounds the Respondent objected to the orders being made, is that the Applicant is not entitled to call evidence about matters in relation to which she has actual knowledge, without deposing to those matters herself. I accept this to be the case.
I decline the orders sought in respect of Ms Douglass, Mr Carter and Mr O’Driscoll. The Applicant’s representative’s explanation of the evidence they are expected to give and the relevance to the matters to be determined was not made out. For example, in relation to Ms Douglass, who is not mentioned in the Applicant’s witness statement at all, it was put by the Applicant’s Representative that:
“we’d like to speak to her about what actions she took, what that meant, how it was escalated. We’d also like to ask why she was in contact with Ms Lightfoot about the process being followed for the investigation but at no stage was she in contact or correspondence with the applicant.”
References to Mr O’Driscoll and Mr Carter in the Applicant’s witness statement are few, generally in relation to matters that are not in dispute, or are otherwise in evidence, and do not make a case in relation to their conduct allegedly forcing the Applicant to resign.
I have decided to make the order in respect of Ms Lightfoot. Ms Lightfoot is a key person in the factual context involved and is alleged to have taken various actions or omissions that are alleged to have resulted in the Applicant’s resignation. The Respondent has foreshadowed many objections to the Applicant’s evidence in respect of Ms Lightfoot. However, counsel for the Applicant submitted that the evidence they expected to adduce from Ms Lightfoot was the nature and contents of the Performance Improvement Plan and show cause letter given to the Applicant, and compliance with relevant procedures in the enterprise agreement. I am satisfied that such evidence may assist the Commission in determining the jurisdictional objection, namely the intent of the Respondent in relation to various actions taken. I have decided to grant the order on that very limited basis only, and the examination of the witness will be confined to these matters.
The Respondent has indicated that if the Order is granted in part, it seeks an adjournment of the hearing and to be heard on the question of costs.
I will grant an adjournment if pressed, however the alternative is that the hearing proceeds tomorrow with the Applicant’s evidence, and Ms Lightfoot be required to attend on Monday 20 May 2024. Accordingly, I have issued the order for Ms Lightfoot to attend on Monday 20 May 2024. If the Respondent wishes to press for an adjournment of the hearing tomorrow, it is to advise my chambers by 9.15am tomorrow. If it does, the hearing on 17 and 20 May will be adjourned and a future listing issued.
DEPUTY PRESIDENT
Appearances:
E Burke of Dentons Australia Limited, with permission on behalf of the Applicant.
V Belot of the Victorian Government Solicitor’s Office, with permission on behalf of the Respondent.
Hearing details:
2024
16 May
Printed by authority of the Commonwealth Government Printer
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