Overview of the facts 

On 30 January 2020, an air navigation services provider terminated the employment of an air traffic controller. It was a condition of the employee’s employment that he provide and maintain a medical certificate. The certificate expired and the employer requested the employee attend a functional capacity assessment. The employee attended the assessment, however, during the assessment he sustained a back injury. As a consequence, he was unable to obtain the certificate and unable to perform his role. After considering redeployment options the business terminated the employment of the employee on the basis he was unable to perform the inherent requirements of his role.  

Shortly after the dismissal, the employee lodged an unfair dismissal claim. The business considered the application and filed a response to the claim. At conciliation, the claim did not settle and directions were issued. These directions set out the dates by which each party must file the witness statements and submissions it intended to rely on at the hearing. 

After the parties filed their respective witness statements and submissions, an issue arose. The employee had concerns with the witnesses the employer intended to have appear, or rather, he took issue that a particular HR representative had not been listed to give evidence in the matter. The employee considered the HR representative (who had since resigned from the business) was involved in the matter and should provide evidence. The business responded to the employee’s communications indicating the HR representative attended the dismissal meeting, however, was not the decision maker and should not be ordered to attend the hearing or provide evidence. The business confirmed instead, the senior HR Manager was a material witness, had provided a witness statement and was able to talk to all relevant business records relevant to the employee’s employment.  

Notwithstanding the employer’s explanation, the employee continued to press the issue and made an interlocutory application to the Fair Work Commission (“The Commission”) for an order compelling the HR representative to attend the hearing and give evidence.

The parties could not resolve the issue and it was necessary for a hearing to be convened to consider the application. The Commission required the parties to file submissions and attend a hearing to determine the application. It noted this was a hearing to determine which witnesses were to appear at the dismissal-related hearing and was not to deal with the unfair dismissal claim itself. In other words, this was a hearing before the actual hearing to determine whether the dismissal was fair.  

The Decision 

During the hearing of the interlocutory application the employee submitted that the evidence from the HR representative would establish the business’ managers were “‘unprofessional’, ‘incompetent’ and were ‘fabricating information’”. Meanwhile, the business argued this case was not unique and that the parties agreed the employee could no longer perform the inherent requirements of his role. In other words, the type of evidence sought to be elicited from the HR representative was largely irrelevant to the question of whether the dismissal was harsh, unjust or unreasonable. 

After hearing oral submissions from both parties, the Commission found the HR representative should be ordered to attend the hearing and give evidence about the dismissal meeting and attempts to redeploy the employee. 

In light of the decision, the HR representative attended the hearing for the unfair dismissal claim and provided evidence. However, as the employer was not able to obtain a witness statement from them prior to the hearing, they had to prepare their arguments without knowing what evidence the HR Representative might raise. To date, the outcome of the unfair dismissal claim is yet to be determined.   

Throughout the claim process, there were numerous additional obstacles the employer had to respond to before the matter was heard. This included a “voluminous amount of documentation filed in preparation for the hearing of the applicants claim”, the interlocutory hearing, and a witness being ordered to attend without being aware of the evidence they would be presenting at the hearing. As demonstrated here, the business was required to; respond to the application, attend a conciliation, prepare witness statements and submissions, review and consider the numerous documents provided by the employee, respond to various email communications from the employee and the Commission in relation to evidence generally as well as the enquiries about witnesses, and object to and prepare submissions for an interlocutory application all before the substantive matter was heard. 

Learnings for businesses

On receipt of a claim, businesses should ensure it is actioned in a timely manner and that response submissions are carefully considered and crafted. At this early stage, a practical assessment of the merits can ensure businesses have a clear understanding of the case, their prospects, and make the most of any early settlement opportunities. It also ensures businesses understand the process and likely costs involved in defending the matter, which enables them to make commercially sound decisions.   

How we can assist 

The Victorian Chamber has the automatic right to represent members without needing to seek permission to appear at the Commission. This is due to its status as a Registered Organisation. This is not the case for lawyers and other paid agents, who must seek permission from the Commission to represent a party. Our experienced consultants have a wealth of experience representing members at all stages of unfair dismissal claims. They understand the process and can easily navigate the formalities of the Commission from filing the response, through to representing your business during a conciliation, conference or hearing. If you have received a claim and need some guidance, call the Workplace Relations Advice Line on 03 8662 5222. 

Resources for businesses

• Workplace Relations Advice Line 
• Fair Work representation 
• HR business partners and consulting 
• Managing incidents and injuries 

[2020] FWC 3613