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Appeal against FWC Deputy President’s callous decision upheld

By Portner Press on May 13th, 2019
  1. Industrial Instruments
  2. Fair Work Act

A full bench of the Fair Work Commission (FWC) has effectively had to reschedule an unfair dismissal hearing because of a commissioner’s lack of empathy towards an employee who missed a deadline, because his two-month old son had been diagnosed with a potentially life-threatening heart condition.

FWC Deputy President Melanie Binet criticised the employee for failing to lodge documents within a four-week period before the January 14 due date, even though the employee’s son had medical appointments within this time.

The following day, she invited the defending employer to file a ‘strike out’ application while simultaneously requesting the employee to explain why he did not comply with the deadline.

She went on to hear the ‘strike out’ application before the employee could provide his explanation.

In the employee’s appeal hearing, full bench members Vice President Joe Catanzariti, Deputy President Peter Sams and Commissioner Chris Simpson objected to Deputy President Binet’s action.

“We would discourage the practice of ‘inviting’ the employer to file an s 399A application, very shortly after a direction’s deadline not being met, and without taking into account any explanation before doing so. Such a practice should be eschewed,” they said.

“In our opinion, the Deputy President’s discretion miscarried when she rejected [the employee’s] explanation for his late filing; being primarily due to his infant son having been diagnosed with a condition which required open-heart surgery.

“Any parent may understandably be confused, or may not pay sufficient attention to directions of the Commission in circumstances where their newly born child is diagnosed with a serious medical condition, . . . the Deputy President’s highly detailed directions and guidelines, including contingent directions . . . are so detailed that most unrepresented parties would find them difficult to navigate.

“This would be particularly so for a person experiencing the difficult circumstances [the employee] was facing at the time.

“In our view, [the employee’s] explanation for his relatively minor failure to comply with the directions, including his wife’s inability to drive for six weeks following the birth of their son, was reasonable and understandable in such circumstances.

“We are satisfied that the exercise of discretion miscarried in this respect, leading the Deputy President into error.

The full bench ordered that the matter be heard again by FWC Deputy President Abbey Beaumont.

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