Parties to matters before the Commission may apply to have the matter adjourned.
Parties should not assume that an adjournment will be granted.[190] The principles in relation to adjourning (or staying) proceedings are as follows:
- a party to a matter before the Commission has a right to expect that the matter will be determined quickly
- serious consideration needs to be given before any action interferes with this right
- the party who applies for the adjournment must demonstrate that it is necessary to the satisfaction of the Commission
- 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.[191]
The Commission’s task is a ‘balancing of justice between the parties’ taking all relevant factors into account.[192]
The consideration of an application for adjournment of a matter requires the exercise of a discretion. The overarching objective must always be the just resolution of the real issues in dispute with minimum delay and expense. Regard must be given to ensuring that the applicant for the adjournment is afforded a fair and reasonable opportunity to advance their case, and that any adjournment does not cause undue prejudice to the other party.[193]
However, the interests of the parties are not the only considerations. The Commission is an institution which is required to deal with a very large number of matters, and s.577 of the Fair Work Act provides that the Commission must perform its functions and exercise its powers fairly, justly and quickly.[194]
Specific provisions of the Fair Work Act require the Commission to start dealing with particular types of matters in defined timeframes (for example, in relation to applications for orders to stop bullying or sexual harassment (or both), s.789FE(1)). Therefore the grant of adjournments and the associated loss of valuable hearing days may prejudice the Commission’s capacity to promptly deal with matters. For this reason, when a matter has been programmed for hearing in a way which affords parties a proper opportunity to advance their cases within reasonable timeframes, an adjournment would not readily be granted.[195]
Examples of 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 or other relevant evidence may be required of the requesting party to substantiate the request
- unavailability of a representative for reasons beyond their control
- a significant life event affecting a conference or hearing participant, 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 (or parties) will usually be asked to comment on an adjournment request before a decision is made by the Commission. This may mean that documents providing in support of an adjournment request are shared with other people involved in the matter. Concerns about the disclosure of personal or private information should be brought to the attention of the Commission before this happens so that they can be dealt with before the information is shared.