The Respondent provided their evidentiary material as required on the 31 July 2014. The Respondent did not provide their outline of submissions until they provided the hard copy of the materials. These were received by FWC early in the morning of 1 August 2014. A further electronic copy was provided to FWC on the Monday. It is regrettable that the outline of submissions was late however the outline of submissions is straightforward and does not raise any particularly new issues.

The Commissioner requests that the Respondent provide advice as to when they provided the submissions to the Applicant's representatives in electronic and or written form and why the submissions were provided late if in fact they were provided late.

The Applicant is now aware of the Respondent's case. Delay in this matter would be contrary to the object of the unfair dismissal section of the Act (Section 381). FWC is required to deal with these matters using procedures which are "quick, flexible and informal".

After careful consideration the Commissioner declines the adjournment request. The hearing will proceed as scheduled."

[16] Later that day, when I was in a meeting and unable to be disturbed, there was a further telephone call from Taylor and Preston. My Associate made the following file note of the call:

"Received telephone call from Applicant's representative at 4:15pm advising they had received more documentation from the Respondent that afternoon and made a third request for the hearing listing tomorrow morning adjourned. Advised that Commissioner was not available and would not be able to make a Decision until the morning, therefore she could put in a written request but would still need to attend the hearing and if necessary could make a verbal request then."

1. Was additional material provided on the afternoon before the hearing?

[17] I am satisfied that the material provided by email on the afternoon of 6 August 2014 was the same material as that which had been provided to Mr Cetin's representatives on 31 July 2014. To the extent that Mr Cetin's representatives mistakenly believed that there was additional material it was open to Mr Cetin to object to the material when the proceedings commenced on 7 August 2014 on the grounds that it had not been provided in accordance with the directions. The provision of the material on the afternoon before the hearing does not provide a basis for finding that the refusal of an adjournment denied Mr Cetin the opportunity to effectively prosecute his case.

2. Was there enough time between the receipt of the witness statements on 31 July and the arbitration to enable the matter to be properly prosecuted including by responding to the material provided by Speedie Waste?

[18] Mr Cetin had earlier made three applications for extension of time to provide his material. Those applications were granted and as a consequence the date for the Respondent to produce its materials had been put back. The Fair Work Commission had previously rejected attempts to delay the proceedings. Speedie Waste provided its witness statements and attachments on the date it was due, admittedly a few hours late. Mr Cetin and his representatives had many weeks of advance notice that they would have to prepare their response to Speedie Waste's materials in the period between 31 July and 7 August 2014. There is no evidence that Mr Cetin and his representatives dedicated themselves to preparing their response to Speedie Waste's materials during this period.

[19] Speedie Waste had advised Mr Cetin since 22 April 2014 that it had consistently received customer complaints and that a number of warnings had been issued concerning performance. It was no surprise that Speedie Waste provided evidence in support of this. The material was not that complicated or unexpected however there were a significant number of particular complaints documented.

[20] Mr Cetin was represented. I was satisfied by the responses to my questions that Mr Cetin's representatives were aware of the normal process of dealing with unfair dismissal matters before the Fair Work Commission. It is common for further evidence to be led from the Applicant and other witnesses in response to the material produced. The allegations can also be challenged through cross examination of Speedie Waste's witnesses. In this case it is likely that the leading of further evidence and cross examination would be the predominant ways in which the allegations made by Speedie Waste could be challenged. It is of course possible that other witnesses or documents might be able to assist Mr Cetin's case. Applications could have been made prior to or during the proceedings to admit further specific material or to provide further specific evidence. Any unfairness could only be properly assessed as the case unfolded. The Fair Work Commission is required to proceed speedily and without formality.

[21] I am satisfied that it was reasonable to expect Mr Cetin and his representatives to prepare a response to Speedie Waste's material in the scheduled period.

3. Did the failure to provide an adjournment deprive Mr Cetin of the opportunity to have his case fairly heard?

[22] It was reasonable to expect that Mr Cetin would be ready to present his case on 7 August 2014. However, if Mr Cetin had identified particular additional witnesses or material which was required to be called but which was not available on 7 August 2014 then this could have been raised during proceedings. Mr Cetin's representative accepted that My Associate told her late in the afternoon of the day prior to the scheduled hearing that she could make further application when the proceedings commenced. There was no basis for Mr Cetin or his representatives to assume that I would not ensure a fair hearing and that I would refuse reasonable requests to provide further evidence should the course of the case suggest that this was necessary and or appropriate. It was reasonable to assume that I would reject an application for adjournment based upon a general application for time to explore the possibility of finding additional evidence.

[23] Mr Cetin and Speedie Waste did not have to be represented and leave to appear for representatives had not been granted and should not be assumed. The risk of costs was not created by the refusal of the adjournment. The material provided on 31 July could not, in itself, form the basis for a finding that the case had been pursued unreasonably given that the material had not been available to the Applicant when he decided to proceed. Costs are rarely awarded and could only be awarded if it could be shown that the case proceeded unreasonably or vexatiously. If the representatives of Mr Cetin felt that it was obvious that the case was hopeless now that Speedie Waste had provided their material then they may have had good reason to provide advice to Mr Cetin that there was a risk that he might face costs. However, I have no reason to believe this to be the case and Mr Cetin's representatives did not advance that argument.

[24] The decision to refuse the application for an adjournment was not a denial of procedural fairness. Reasons were given for the refusal. The decision could have been the subject of an appeal and application for a stay order. The application could have been further pressed, based upon better particulars, at the hearing. Mr Cetin's representatives were advised that this option was available.

[25] The Fair Work Commission has to be fair to both parties in a proceeding and also ensure that matters are dealt with expeditiously, without excessive formality and consistent with principles of natural justice. If a party presses a procedural matter in the lead up to a hearing it may be difficult to balance these sometimes competing objectives. In some cases the proper balance can only be properly assessed when more details emerge and when both parties have the opportunity to put forward submissions in proceedings.

4. Are there other reasons to revoke the order?

[26] There is no suggestion that Mr Cetin's decision to discontinue his application was made because of duress or threat. If this had been the case it might form a basis to revoke the order.

[27] I have no doubt that Mr Cetin genuinely feels that there was inadequate time to prepare his response to the materials put forward by Speedie Waste. Mr Cetin, after receiving advice from his representatives, considered that it was better to withdraw than to proceed in circumstances where an adequate response had not been able to be prepared. Mr Cetin wants an opportunity to run his case. However, Mr Cetin did not raise an objection to the making of the order in the period between 6 August 2014 when the request for the order was made by representatives and 11 August 2014 when the order was made. This application was not made until three weeks had passed.

[28] For the reasons outlined I can see no basis upon which I should revoke the order. The application is dismissed.

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