s.394 - Unfair dismissal

The Trustee For The Trimatic Management Services Unit Trust

Application for an unfair dismissal remedy - Decision as to how matter is to be dealt with.

• [1] Mr Aaakar Mankad has made an unfair dismissal application against the Trustee for the Trimatic Management Services Unit Trust (the Respondent). Commissioner Johns was initially allocated the matter and listed a determinative conference/hearing to take place on 2 April 2025, by Microsoft Teams. Consequential on the announcement of the Commissioner's appointment to the Federal Circuit and Family Court of Australia, the matter was reallocated to me. My diary commitments were such that I have been able to maintain the determinative conference/hearing listing date of 2 April 2025.

• [2] On 17 March 2025, I caused an email to be sent to the parties that advised them that the matter had been reallocated to me and that the previous directions of Commissioner Johns continued to apply, save that the matter would be conducted in person on 2 April 2025. The parties were also advised that if they were unable to attend in person and required a Microsoft teams link to access the hearing, they were required to make application via return email, outlining the reasons why they are not be able to attend in person.

• [3] On 19 March 2025, I received email correspondence from the Respondent's Group Manager, People Operations, Ms Delwyn Rayson. This email outlined that Ms Rayson has carriage of the matter for the Respondent and requests to attend the hearing via Microsoft teams because she permanently resides in Perth, has significant caring responsibilities for two young children and is unable to travel to Melbourne on 2 April 2025. Ms Rayson's email was followed by an application from Mr Mankad to attend via Microsoft Teams, his reason being "as the other party is not able to attend in person."

• [4] On 20 March 2025, I advised the parties that Ms Rayon's request was granted but that Mr Mankad and any witnesses residing in Melbourne were required to attend the Commission in person. I also directed the Respondent to advise as to whether either of the Respondent's witnesses (Mr Cruz or Mr Penfold) resided within or outside Melbourne. This prompted Mr Mankad to respond with an email asking, "If the other party cannot attend and wants to do it through teams, why can't I do it through teams as well?"

• [5] When I indicated that Ms Rayson had been granted permission to attend the hearing via Teams because she resides in Perth and that Mr Mankad, and any witnesses residing in Melbourne, were to attend the Commission in person, Mr Mankad responded, stating "sorry but I am unable to attend which is why I said that I need it to do it through teams." This prompted further correspondence which culminated in the following being outlined to the parties in an email sent from my Chambers on 25 March 2025:

"Mr Mankad is advised that he is directed by Deputy President Clancy to attend the hearing in person at 10.00AM, Wednesday 2 April 2025 at the Fair Work Commission, 11 Exhibition Street, Melbourne.

When a matter is listed for an in-person hearing, permission to attend by Microsoft Teams will only be granted by the Deputy President where there are extenuating circumstances. Mr Mankad has neither sought permission to appear via Microsoft Teams and nor has he provided an acceptable explanation as to why he cannot attend in person.

No further correspondence on this issue will be entered into by the Deputy President."

• [6] Mr Mankad replied by email that day, positing "Why is it that the other party can do it through teams and i can't? That defies logic here. I also don't wish to disclose why I don't want to attend in person."

• [7] Section 589(1) of the Fair Work Act 2009 (the Act) provides that the Commission may make decisions as to how, when and where a matter is to be dealt with. In this matter, I reviewed the file upon its allocation to me and I made the initial determination that it should be an in-person proceeding. I reached this conclusion having regard to:

1. A file note on the Commission's file made by the Commission conciliator who conducted the conciliation on 21 January 2025, in which the conciliator described Mr Mankad's behaviour towards her as belligerent and argumentative and recorded his refusal to answer relevant questions;
2. An email from Mr Mankad's (then) representative to the Commission conciliator apologising for the behaviour of Mr Mankad in the conciliation;
3. Mr Mankad's unfamiliarity in regard to the Commission's role in managing and, when necessary, hearing and determining an unfair dismissal application, as apparent for the Commission's case notes; and
4. The Commission's 'fair hearing obligations' to provide appropriate assistance to self-represented parties by explaining the relevant provisions of the Act, identifying the issues which will be central to the determination of the matter, and drawing the attention of the parties to the relative weight to be given to unsworn statements, as opposed to sworn evidence.

• [8] I have subsequently advised the parties that they were required to make application if they are unable to attend in person and wish to attend via Microsoft teams, outlining the requirement that they provide the reason(s) as to why they are not be able to attend in person. Mr Mankad has responded by stating his preference, but he has elected not to provide reasons.

• [9] I have considered the matters arising in this case, in particular those outlined in [7](1) and [7](2) above. I have had regard to the Commission's obligations in s.577 of the Act and the reasons for Mr Mankad's request to appear via Microsoft Teams (or the lack thereof). I have noted that in his Form F2 - Unfair dismissal application, Mr Mankad provided the Commission with an address in metropolitan Melbourne and that Mr Mankad has not taken up the opportunity the Directions dated 10 February 2025 gave him to file and serve any materials in reply to the Respondent's material.

• [10] In all the circumstances, I have not been persuaded that Mr Mankad's request to appear via Microsoft Teams is reasonable and moreover, I remain of the view that Mr Mankad's physical attendance is necessary. I consider this will ensure that both parties can put their case in a hearing that is fair, orderly and efficient.

• [11] I therefore restate that I require Mr Mankad's attendance at the hearing at 10.00AM, Wednesday 2 April 2025 at the Fair Work Commission, 11 Exhibition Street, Melbourne and Mr Mankad is advised that if he does not attend in person, s.600 of the Act provides that the Commission may determine a matter before it in the absence of a person who has been required to attend before it.

• [12] Finally, as regards the advice I received from the Respondent on 24 March 2025 that its two witnesses reside in Queensland and Manila respectively, I consider it reasonable to grant Mr Penfound and Mr Cruz permission to attend the hearing via Microsoft teams.

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