Fair Work Act 2009

s.604 - Appeal of decisions

Townsville Aboriginal & Torres Strait Islander Corporation Health Services

Appeal against decision [2012] FWA 2713 of Commissioner Simpson in matter number U2011/13631, unfair dismissal remedy, order of payment for compensation.

[1] This decision concerns an appeal against an order made by Commissioner Simpson in respect to an application for an unfair dismissal remedy. Ms Oui (the appellant) did not appear before the Full Bench when this matter was listed for hearing nor did any representative attend on her behalf. Townsville Aboriginal & Torres Strait Islander Corporation Health Services (the respondent) appeared and was represented by Ms Perigo, of counsel. Upon the application of the respondent we dismissed the appeal. These are our reasons for that ruling.

[2] We first refer to the Commissioner's reasons for decision. He found in the appellant's favour in respect to the unfairness of her dismissal and ordered an amount of compensation of $5883.77 be paid to her. He observed that the appellant had not sought reinstatement as a remedy.

[3] The notice of appeal, which was completed using the Form F7 as required by the rules, indicated that Mr James O'Donnell was the appellant's representative. In that part of the form which requires the grounds of appeal to be set out the following handwritten entry was made; "THE COMMISSIONER ERRED IN ARRIVING AT HIS CONCLUSION". The public interest in permitting the appeal was recorded as "THE APPLICANT WAS NOT ALLOWED TO PRESENT HER CASE FULLY". It seems the respondent was not served with a copy of the notice of appeal and a copy was provided to it by the Commission.

[4] Senior Deputy President Harrison decided to call on the matter for mention on 8 October 2012 to deal with the notice of appeal as well as an application made by the appellant for relief from filing appeal books. The respondent was represented at that hearing but there was no appearance by or on behalf of the appellant. The respondent submitted that the appeal should be dismissed. In the event it was not, the respondent requested the appellant file further and better particulars of her grounds of appeal identifying the errors which were said to have been made by the Commissioner in his reasons for decision. The transcript was prepared as a matter of urgency and provided to Mr O'Donnell and the appellant.

[5] On 9 October 2012, Mr O'Donnell contacted the presiding Member's chambers to explain that his non attendance on the previous day was due to the fact he had not allowed for the day light saving time difference between New South Wales and Queensland. The matter was relisted for mention and directions on 10 October 2012. Mr O'Donnell was directed to file and serve, within seven days, an amended notice of appeal and a list of documents that the appellant identified as being adequate for the Full Bench to understand the matters raised by the amended grounds of appeal. Subsequently, Mr O'Donnell requested an extension of time to file these documents. This extension of time was granted. The documents the appellant filed were not served on the respondent. Mr O'Donnell filed a document titled "Appellant's Outline of Submissions" but no amended notice of appeal was filed.

[6] On 13 November 2012, Mr O'Donnell contacted the presiding Member's chambers by telephone and requested that he be permitted to participate in the appeal hearing via telephone. He had given no notice to the respondent of this application. He was informed that his request was declined.

[7] The matter proceeded to a hearing before the Full Bench on 15 November 2012. Neither Mr O'Donnell nor the appellant appeared. The hearing was adjourned for a short time. Mr O'Donnell was contacted by the presiding Member's associate. He advised that he was in Townville and would not be attending the hearing. When asked whether he had made any attempt to inform the Commission or respondent that he would not be attending he said that this was what he meant when he had earlier requested to participate via telephone. Mr O'Donnell then abruptly terminated the phone call. That explanation is unacceptable. Nothing was said by the appellant prior to the hearing of the appeal which alerted the Commission or the respondent to the fact the appellant would not be attending. No application was made to deal with the appeal on the papers nor was an application made for an adjournment. In this respect, we note that shortly after the notice of hearing was sent to the parties the respondent had sought an adjournment and that was refused. It was also made clear that the Members of the Full Bench would be travelling to Brisbane from interstate.

[8] In the absence of an application to tender the written submissions of the appellant (and allow the Commission to address several objections to them) we had nothing before us to support the appeal. In those circumstances we decided to dismiss the appeal.

[9] We should indicate that had we been inclined to consider the written submissions of the appellant it would have been necessary to deal with the respondent's objections to numerous paragraphs in them which were not relevant to the appeal or appropriate to be contained in the submissions. In any event, had we proceeded in this way then, for the reasons given by Ms Perigo in the hearing and in the respondent's written submissions, we would have declined to grant permission to appeal.

[10] Before concluding this decision we should note that considerable assistance was given to the appellant in respect to the filing of appeal books. Much of the documentation that was required by the Full Bench was prepared by Commission staff. We also observe that in a number of respects the manner in which Mr O'Donnell represented the appellant was unsatisfactory. He proved to be very difficult to contact by both the Commission and the respondent's representatives. It was his responsibility to ensure the contact details he provided were accurate and reliable. It is entirely unacceptable to be advised some considerable time after the event that those contact details had changed. It is also unacceptable to prematurely terminate phone calls from Commission staff or the respondent's solicitors.

[11] Finally, we note that an application for costs has now been made by the respondent. An order is sought against both the appellant and Mr O'Donnell. We will give each of them a period of 14 days from the date of this decision to provide, in writing, any submissions in reply to the application. Unless either of them make an application for us to deal with this application in a hearing we will assume they each consent to us dealing with it on the papers.

Ms A Perigo of counsel and Ms M Doyle, solicitor, for Townsville Aboriginal & Islander Health Service Ltd

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