Excluded evidence means FWA Cmr must re-hear redundancy case

Cases

Excluded evidence means FWA Cmr must re-hear redundancy case

A FWA Commissioner has been ordered to admit evidence previously excluded and re-determine a case in which four workers were found to be wrongfully made redundant.

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A FWA Commissioner has been ordered to admit evidence previously excluded and re-determine a case in which four workers were found to be wrongfully made redundant.

[Full text of this case: Abigroup Contractors Pty Ltd v Four workers [2012] FWAFB 8453 (2 October 2012)]

In the original case, Commissioner Cribb ruled that the dismissals were not genuine redundancies because the employer, Abigroup, had the capacity to redeploy the workers.

Evidence was given by an Abigroup manager — that around the time the workers were sacked, 16 new labourers were hired and at least four of these were students coming off a 10-week course who required support and supervision.

Unfairly dismissed
 
Cmr Cribb therefore ruled that the sackings were harsh, unjust or unreasonable and the workers had been unfairly dismissed.

She requested the parties hold discussions on a possible settlement or she would determine ‘the appropriate remedy’.

However, Abigroup appealed to a Full Bench of FWA, claiming that a construction manager it wanted to call as a witness on the suitability of the four workers for redeployment to other available positions had not been allowed to appear.

Abigroup indicated the witness would be referring to evidence that had already been introduced in the course of the hearing.

However, counsel for the workers objected to the witness being called and contended it was never put to the employees at the time of their termination that their skills were an issue in them not being able to be redeployed.

Unbalanced material
 
Cmr Cribb upheld the objection and said that if she was to hear evidence from the witness, she would have unbalanced material before her because the employees would not be able to reply and give evidence about their skills in detail and that the evidence of the witness would not be of any value from the Tribunals’ perspective.

However, Abigroup contended before the Full Bench that if the witness had been allowed to appear this would have resulted in a finding that the redundancies were genuine. It claimed there had been a denial of natural justice.

The Full Bench ruled that procedural fairness requires some latitude being given to the parties to enable them to supplement their evidence ‘especially if an aspect of the facts could not have been reasonably anticipated earlier’.

‘It is also in the interests of a fair and just determination of the matter that all relevant evidence is considered.’
 
Not ‘ambushed’
 
‘When a party seeks to introduce new evidence not previously disclosed to the other side a good reason should be provided.’
 
‘The tribunal should ensure that the other party is not “ambushed” and has a fair opportunity to deal with that evidence.’
 
‘Evidence of a relevant matter should not be excluded lightly and every effort should be made by the tribunal and the party seeking to lead further evidence to ensure that no consequent unfairness arises from the admission of further evidence.’

The Full Bench said it was clear the nature of the vacancies that the workers might have filled was directly related to the conclusion reached by Cmr Cribb.

Denied procedural fairness
 
‘We have concluded above that Abigroup was denied procedural fairness in the matter,’ it said.

‘However it does not follow from our conclusion that the unfair dismissal application should have necessarily been determined differently. Indeed we are in no position to assess whether this is the case as the totality of the evidence ultimately led in the matter would need to be considered.’
 
‘We consider that the best course is to allow the appeal, quash the decision of the Commissioner, and as suggested by the parties, remit the matter to the Commissioner to be re-determined after admitting and considering the further evidence the parties wish to lead on this matter.’
 

 
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