Rescheduling or adjourning matters

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Overview

Parties to matters before the Fair Work Commission may apply to have the matter adjourned.

There should be no presumption that an adjournment will be granted.^[1] The principles in relation to adjourning (or staying) proceedings are as follows:

a party to a matter before the Commission has a right to have the matter determined as quickly as possible
serious consideration needs to be given before any action interferes with this right
the party who applies for the adjournment must prove that it is necessary
a party is not automatically entitled to an adjournment because they are involved in a criminal hearing, and
an application for an adjournment must be determined on its own merits.^[2]

The Commission's task is a 'balancing of justice between the parties' taking all relevant factors into account.^[3]

An adjournment of an unfair dismissal application will only occur if there are substantial grounds for the adjournment application.

Examples where a request for an adjournment may be granted include:

where illness of the applicant or a significant person in the respondent's business or a witness would prevent them from attending a proceeding – a medical certificate must be provided by the requesting party to substantiate the request
unavailability of a representative that started acting for a party before the application was listed for hearing
death or serious injury of a family member of an applicant, a significant person in the respondent's business or a witness, or
where the applicant, a significant person in the respondent's business, a witness or a representative will be interstate or overseas and the travel was booked before the application was listed for hearing – the Commission may ask for proof that the booking was made prior to the matter being listed for hearing.

The other party will be asked to comment on the adjournment request prior to a decision being made by the Commission.

Uncontested applications

The Commission attempts to contact the parties to an unfair dismissal application as the matter progresses.

If a party does not respond to the Commission’s notices or directions the application may still be dealt with as an uncontested application.

Any orders made by the Commission in an uncontested application are legally binding and enforceable, subject to any contrary outcome on appeal.^[4]

Ongoing criminal matters

In determining whether a civil matter interferes with a defendant in a criminal matter's right to silence the following relevant factors may be considered:

the possibility of publicity reaching and influencing jurors in the criminal matter
the proximity of the criminal hearing
the possibility of a miscarriage of justice
the burden on the defendant of preparing for both the civil and the criminal matters
whether the defendant has already disclosed his defence to the criminal allegations.^[5]

The principles within McMahon v Gould have been questioned in subsequent judgments but the decision has not been overturned.^[6]

Deceased applicant

The right under the Fair Work Act 2009 to make an unfair dismissal remedy application is personal to the dismissed employee. The Fair Work Act does not confer a right to a remedy, but only a right to make an application and having it heard according to law. It is a right that is a bare and non-assignable right and generally is not one that is to be regarded as a proprietary right.^[7]

This situation also leads to a number of considerations with respect to procedural fairness, particularly with regard to the capacity to give and test evidence and to the right of reply, which prevent the proceedings from continuing following the passing of an applicant.^[8]

If the applicant in an unfair dismissal matter has passed away, the estate of the applicant cannot continue with the application.

The Commission will find that the application has no reasonable prospects of success and dismiss it.