Fair Work Act 2009

s.604 - Appeal of decisions

Spectrum Community Focus Limited t/a Spectrum Community Focus

Appeal against decision of Senior Deputy President Hamberger at Sydney on 21 August 2017 in matter number U2017/1378 re the Respondent's application to vacate directions and set new listing date.

[1] This decision reproduces in edited form the decision and reasons which were stated on transcript at the conclusion of the hearing conducted in relation to this matter on 30 August 2017.

[2] Spectrum Community Focus Limited t/a Spectrum Community Focus (Spectrum) has applied for permission to appeal and appealed a decision made by Senior Deputy President Hamberger, communicated by email, on 21 August 2017. The decision arose in an unfair dismissal remedy application made by Ms Emma Valenzuela, which is listed for hearing before the Senior Deputy President next Monday 4 September 2017. In the decision, the Senior Deputy President rejected an application made by Spectrum to adjourn the hearing to allow it sufficient time to file an expert's report in the matter.

[3] It is not in dispute that s.400(1) of the Fair Work Act 2009 applies to the appeal. Section 400(1) provides that the Commission may only grant permission to appeal if it is satisfied that it would be in the public interest to do so.

[4] The chronology of this matter is as follows. The unfair dismissal remedy application was lodged on 8 February 2017. Spectrum initially contended that the application had been lodged out of time, and in accordance with the directions of the Commission the parties then filed statements of evidence and written submissions concerning this jurisdictional objection. The jurisdictional objection was part heard on 5 June 2017, and then adjourned until 23 June 2017. On that day, Spectrum withdrew its jurisdictional objection. The matter was then the subject of an unsuccessful conciliation conference on 7 July 2017. At that conference, the parties provided an estimate that the matter would take one day for hearing, and Spectrum indicated that it would call an expert witness and possibly one other witness. On 13 July 2017 directions were issued requiring Ms Valenzuela to file her evidence and submissions by 3 August 2017, and requiring Spectrum to file its material by 24 August 2017. On 3 August 2017 Ms Valenzuela filed her material as directed.

[5] On 4 August 2017 Spectrum engaged its expert, but a proper brief for the preparation of the expert's report was not sent to the expert until 10 August 2017. On 18 August 2017 the expert advised that he required a further 3-5 weeks to prepare the requested report. The application for the adjournment was then made, as earlier stated, on 21 August 2017.

[6] Spectrum submits that permission to appeal should be granted, and the appeal upheld, because the refusal of the adjournment will deny it a fair and just hearing and procedural fairness. Its expert evidence is necessary, it submits, because it bears the onus of proving serious misconduct, and it was not aware that Ms Valenzuela would assert that she was an accurate and diligent employee until she filed her material on 3 August 2017. The denial of the opportunity to call the expert evidence will, it says, irrevocably affect the justice afforded to the parties if the appeal is not upheld.

[7] Having considered these matters, we are not satisfied that it would be in the public interest to grant permission to appeal, for the following reasons:

1. The appeal is made against a discretionary interlocutory procedural decision. Such appeals are usually discouraged for the policy reasons set out by the Full Bench in Hutton v Sykes[1].

1. Spectrum has filed its evidence of the primary facts which it says demonstrates misconduct on the part of Ms Valenzuela justifying her dismissal. That has allowed Spectrum a proper opportunity to make out its case. The primary facts cannot be proven by way of an expert. The only function of the expert here, it appears, is to give an opinion about whether the conduct otherwise factually established constituted misconduct - a judgment which the Senior Deputy President must ultimately make.

2. The chronology does not tend to demonstrate that there has been any denial of the opportunity for Spectrum to advance its case.[2] The application was filed over six months ago, and it appears that Spectrum has over that period acquired new information which it says further justifies the dismissal. There was no proper basis to wait until after the receipt of Ms Valenzuela's evidence to retain and brief the expert. As early as 7 July 2017, Spectrum had formed the intention to obtain an expert's report, but the expert was not properly briefed until 10 August 2017. There was nothing which Spectrum could have expected to see in Ms Valenzuela's material that would justify it waiting until it received that material before taking any action to obtain the expert's report.

3. We do not consider that the refusal of the adjournment request made on 21 August 2017 necessarily represents a once and for all denial of the opportunity for Spectrum to present its expert's report. It would be open for Spectrum to renew the adjournment application once the other evidence has been heard at the hearing. Even if an adjournment is again refused, Spectrum might nonetheless succeed in the matter. If it is unsuccessful, it has the normal right of appeal subject to first obtaining permission to appeal.

[8] Accordingly, permission to appeal is refused.

B. Cross of counsel on behalf of Spectrum Community Focus Limited.

[1] [2014] FWCFB 3384 at [3]

[2] The duty of an administrative tribunal "is to ensure that a party is given a reasonable opportunity to present his case", and there is not imposed on such a tribunal "the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled": Sullivan v Department of Transport [1978] FCA 48; (1978) 20 ALR 323 at 343 per Deane J.

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