Simon Parris v Trustees of Edmund Rice Education Australia T/A St Kevin's College

[2020] FWC 3472

[2020] FWC 3472

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Simon Parris
v
Trustees of Edmund Rice Education Australia T/A St Kevin’s College
(U2020/2749)

COMMISSIONER LEE MELBOURNE, 2 JULY 2020

Application for an adjournment.- application to adjourn granted.

[1] The Respondent in this matter seeks an adjournment of the hearing currently scheduled for 17 to 24 August 2020, to a date not before 2 December 2020. The request is opposed by the Applicant. The parties filed submissions on the matter as well as witness statements from the father of proposed witness for the respondent known as JH and also from the Applicant. The matter was listed for hearing yesterday at 5.00pm Wednesday, 1 July 2020. At the conclusion of the hearing I issued a short decision ex tempore in the following terms:

[2] Taking into account all of the relevant considerations, I consider it is appropriate to adjourn the hearing to a date not before 2 December 2020. The parties are directed to confer on possible dates and advise of their preferred dates by close of business Friday, 3 July 2020.

[3] I also indicated to the parties that I would provide short written reasons for my decision as soon as possible subsequent to the hearing. Those reasons follow:

[4] The primary reason the Respondent seeks the delay in the hearing is that a witness (JH) that they will bring to the proceeding, and whose evidence is said to be necessary by the Respondent to effectively advance its case, does not want to give evidence before 2 December 2020. Evidence as to the wishes of JH in this regard was provided by his father. At the present time, JH is seventeen years of age.

[5] In short, the reasons that JH does not want to give evidence prior to 2 December 2020 are:

•  That date will be after he completes his VCE;

•  Prior to completing his VCE he does not want to engage in conduct that will divert him from his studies and is anxious at the prospect of giving evidence;

•  His father is concerned for his welfare as a consequence of the Applicant’s alleged conduct;

•  His father does not give permission for JH to appear until he completes his VCE; and

•  A letter from JH’s treating psychologist was provided which supported an adjournment and asserted that this was in the best interests of JH. Further that JH’s mental health and education needs to be considered in any upcoming legal proceedings, wherever possible.

[6] The necessity from the Respondent’s perspective of having JH give evidence is said to be as follows:

•  JH is a third party to the application, but a critical witness. His first-hand (direct) account of the Applicant’s conduct and the manner in which it affected him and continues to affect him is highly probative in respect of at least the following primary considerations:

a) valid reason; and

b) harshness; and

c) reinstatement. 1

•  As to the prejudice to the Respondent if the adjournment were not to be granted, the Respondent submits that the hearing proceeding without JH giving evidence would likely result in:

a) a profound forensic disadvantage to EREA because it cannot adduce direct evidence from, perhaps, its most critical witness;

b) a disadvantage to the Commission in its fact finding task because it cannot receive first hand evidence from the person most affected and/or aggrieved by the Applicant’s conduct, JH; and

c) a significant forensic advantage to the Applicant because he can give unchallenged evidence as to his interactions with JH. 2

•  The Respondent submits that the application is premised upon the likely substantial harm and/or injustice to JH giving evidence per se at this juncture in time. The attendant anxiety and potential exacerbation of the injury he has already suffered is in issue. It is how these factors will affect his VCE studies and final exam preparation that is a matter of significance to him and his family and his school. 3

•  The Respondent also submits that the potential or apprehended harm to be suffered by the witness JH if he is forced to give evidence, in August 2020, is fairly described as:

a) heightened anxiety;

b) possible mental distress; and

c) more profoundly, the possibility of interruption to his preparation and successful execution of his final VCE exams. 4

[7] The Respondent accepts that there is some prejudice to the Applicant but that there is no clear and compelling prejudice to the Applicant if the adjournment were granted for the three and a half-month period because:

“a) the adjournment is for a short period;

b) the Applicant is presently under investigation by the Victorian Institute of Teachers and cannot teach again until such investigation has been completed; and

c) any financial loss caused by the adjournment can likely be recouped by any order for remuneration lost or compensation.” 5

[8] The Applicant strongly opposes the adjournment and submits that, in summary:  6

•  The Applicant is, prima facie, entitled to have his case heard in the normal fashion and without undue delay. That he is seeking reinstatement ought be taken into serious consideration in the Commission determining whether to grant the adjournment being sought and it ought weigh in favour of rejecting the adjournment application.

•  The period sought is not insubstantial - it is many months at the earliest.

•  The Applicant also states that it is almost impossible to get any other teaching work at present, where his dismissal and the proceeding are “hanging over his head”.

•  An adjournment until a date after 2 December 2020, is unreasonable. It is too long for the Applicant to have to wait to have his case heard and determined, which every day is causing him stress and anxiety.

•  It is also an expensive exercise. Losing momentum in this case, by allowing the adjournment, means not only that memories naturally fade but that further financial resources are drained in having to pick up the matter again in many months’ time and review and refresh ourselves on all the materials ‘from scratch’ to again get across all the issues.

•  That the adjournment will cause a not insignificant increase in legal costs for an Applicant already having to sit and wait (without employment) for his case to be heard in late August, after the Respondent already requested and was granted extra time to file its materials, is also a factor that ought favour rejecting the adjournment application.

[9] The Applicant also submits that there is no material put by the Respondent that offers any explanation to the Commission as to the relevance and necessity of JH as a witness in this proceeding. 7 The Applicant submits that JH is not required as a witness as JH is only involved in one matter in the whole factual matrix and that is the “14 June Incident” as described in the Applicant’s materials that have already been filed on 26 May 2020 and as referred to by the Respondent in its application for adjournment.8 It is put that as the Applicant has admitted the conduct in the “14 June Incident” and the conduct was addressed and a written warning was issued to the Applicant in relation to that conduct.9 that the conduct of the Applicant involving JH was dealt with by the School and a warning was issued and the matter was closed.10

[10] The Applicant gave evidence which can be summarised as:

•  It is important for him to return to his profession and clear his name and professional reputation;

•  The delay has negatively impacted his health and well-being;

•  The ongoing stress of waiting for the hearing to commence is making him anxious; and

•  He is unemployed and without income other than financial assistance from the government.

[11] The Applicant put its position thus:

“The question of “what does justice require in this case” is best answered by the adjournment request being denied. JH is not required at the hearing. The reason provided for the adjournment therefore is not sufficient to satisfy the onus and grant the adjournment. The Commission does not need to hear from him to determine the issues it needs to under Part 3-2 of the Act.” 11

Consideration

[12] Section 589(1) of the Act confers a discretion on the Commission to adjourn a proceeding. However, it is not an unfettered discretion, as stated by Deputy President Gostencnik in Esso Australia Pty Ltd: 12

“The discretion is not at large. It is to be exercised in a statutory context. The Commission is required to perform its functions and exercise its powers in a manner that is fair and just, quick, informal and avoids unnecessary technicalities, and is open and transparent. In performing its functions and in exercising its powers in relation to a matter, including under s. 603 of the Act, the Commission must take into account relevantly the objects of the Act, and any objects of a relevant part of the Act, and equity, good conscience and the merits of the matter. The Commission is also required to act judicially.” 13

[13] I agree with the statement of the Deputy President and apply it in the circumstances of this case.

[14] The Respondent submits that the discretion in this case is subject to a balancing of the following interests:

“(a) the interests of the Applicant in a speedy resolution of the application he has made; and

(b) the interest of the Respondent in being afforded natural justice to advance its evidentiary case and thus its defence in full; and

(c) the interest of a third party witness who has suffered harm and is exposed to further potential harm in respect of his mental health and his final exams; and

(d) the interest of the Commission and other litigants in fairly and efficiently hearing and determining applications alleging unfair dismissal”  14

[15] I agree that these are the relevant interests to be balanced in this matter having regard to the statutory context and the submissions of the parties.

[16] In respect to (a), it is apparent that the Applicant seeks a speedy resolution of his application for the reasons set out in his witness statement. Irrespective of his desires to have the matter dealt with speedily, I agree with the Applicant that prima facie he is entitled to have his case heard in the normal fashion and without undue delay. I have considerable sympathy for the position of the Applicant at the current time, including the effects of his continuing unemployment and the financial and mental strain that is causing him. Consideration of this factor weighs against granting the adjournment.

[17] In respect to (b), the consideration on this point to a fair extent turns on the argument about the relevance or otherwise of JH’s evidence. It is abundantly clear that the evidence of JH will be relevant at least to the alleged conduct of the “14 June Incident” which will be relevant at least to consideration of valid reason. Evidence as to the alleged impact that the conduct has had on the Applicant is likely relevant to consideration of the gravity of the conduct. The evidence of JH may also be relevant in considering the appropriate remedy. It may be that there is other relevant evidence adduced from JH as suggested by counsel for the Respondent but that is not determinative in this matter as it can only be considered speculative at this point in the proceeding. However, for at least the reasons stated above the claim of the Applicant that JH is not required at the hearing must be rejected. On any view, the evidence of witness JH will be a key matter in the case. Consideration of this factor weighs in favour of granting the adjournment.

[18] In respect to (c), I am satisfied based on the evidence of the father of JH and the note from the psychologist that it is most certainly in the interests of JH that he not attend the hearing during his VCE year. Consideration of this factor weighs in favour of granting the adjournment sought.

[19] In respect to (d), there are elements of this factor that weighs towards a denial of the adjournment application. It is not a trivial matter to delay an application for unfair dismissal remedy by three and a half months, and it will involve some prejudice to the Applicant. This weighs against granting the adjournment.

[20] However, there will remain the ability, should the Applicant be successful with his application, to be reinstated with orders for continuity and lost pay. If the adjournment is not granted, the Respondent will be denied an important witness in the matter. These considerations weigh towards granting the adjournment.

[21] The claim by the Applicant that the three and a half month adjournment will be an expensive exercise and that memories will fade is not accepted. The time period under consideration is unlikely in my view to realize these concerns to any significant degree.

[22] After taking all these matters into account, I consider it is in the interests of justice to grant the adjournment sought for the hearing to a date not before 2 December 2020.

[23] These are the reasons for my decision to adjourn the matter given in transcript yesterday evening.

COMMISSIONER

Appearances:

Mr J. Darams, Mr L. Connolly and Mr O. Wilhelm for the Applicant
Mr N. Harrington and Ms A. Terrill for the Respondent

Hearing details:

2020
Melbourne (by telephone)
1 July

Printed by authority of the Commonwealth Government Printer

<PR720680>

 1 Outline of Respondent’s Submissions – Adjournment Application dated 19 June 2020 at [11].

 2 Ibid at [17].

 3 Ibid at [21].

 4 Ibid at [22].

 5 Ibid at [19].

 6   Applicant’s Outline of Submissions with Respect to Adjournment Application dated 24 June 2020 at [11] – [16].

 7 Ibid at [22].

 8 Ibid at [23].

 9 Ibid at [24].

 10 Ibid at [27].

 11 Ibid at [35].

 12   [2018] FWC 6244.

 13 Ibid at [11].

 14 Outline of Respondent’s Submissions – Adjournment Application dated 19 June 2020 at [9].