Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for unfair dismissal - applicant request for appearance by telephone.

[1] The Applicant Mr Peter Viavattene has made an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009. The hearing of this matter is listed on 30 and 31 January 2013.

[2] At the Directions hearing on 18 December 2012 the Applicant indicated that he would be requesting to appear at the hearing by way of telephone.

[3] In support of this application in an email to the Tribunal dated 10th January 2013 he advised as follows:

Please be advised as I am in severe financial hardship and will be reassessed on Friday, 11 January 2013 by Centrelink so that I can receive further assistance for example food vouchers and travel coupons (See attached letter from Centrelink dated 4/1/2013 re appointment for Employment Services Assessment) and I again stress the importance that the matter be listed for a phone hearing because I cannot afford to attend Brisbane due to the expense and distance. I also repeat and rely on my previous submissions made to Fair Work Australia during the phone hearings on 13 December 2012 and 18th of December 2012 and emails sent to Fair Work Australia, including the letter dated 7/12/2012 from Lynne Rogers director of ASAP and my current health care card...(Emphasis added)

[4] The Respondent opposes the Applicant's request on the following grounds.

[5] Telephone hearings are appropriate and effective to deal with procedural and uncontested matters, but are not appropriate for substantive hearings where witnesses are to be called.

[6] There is a need to observe demeanour of witnesses which cannot be done by way of telephone attendance.

[7] In this particular matter there has been a history of poor quality telephone reception. There is no guarantee that the Applicant will have a good clear reception on the day of the hearing.

[8] Additionally access to evidence such as documents and recordings is more challenging over the phone.

[9] The Respondent is prepared to offer a contribution towards the cost of travel and potential accommodation costs as follows:

● Accommodation costs: the Respondent noted that a room at the Mantra Hotel Queen Street Brisbane has rooms available on 30 January 2013 at a cost of $137.08. It is prepared to pay up to $140 in the event that the hearing takes 2 days.

[10] Section 590 of the Act provides that the Tribunal may inform itself in relation to any matter in such a manner it considers appropriate.

[11] Section 590(2)(a) provides that the Tribunal may inform itself by requiring a person to attend before the Tribunal. Additionally section 591 of the Act provides that the Tribunal is not bound by the rules of evidence and procedure in relation to a matter before it.

[12] However, most of the concepts underlying the rules of evidence are relevant in matters before the Fair Work Commission. This is because the rules of evidence ensure procedural fairness in the conduct of the hearing.

[13] In this case the relevant rule of evidence is that witnesses appear in person at a hearing to ensure that the witness can be properly tested on the evidence on which they seek to rely. Generally the best way to do so is by an appearance in person at the hearing.

[14] The importance of both observing the Applicant as a witness and obtaining relevant evidence to ensure the proper conduct of this matter generally does require a witness such as the Applicant to attend in person. It does not seem there is any reason why this matter is an exception to this general rule. For these reasons I have concluded that the attendance by the Applicant in person at the hearing will ensure procedural fairness to all parties.

[15] An order requiring the Applicant to attend the hearing in person will issue separately.

[16] While it is an unusual offer from the Respondent to contribute to the Applicant's costs of travel and accommodation, in the circumstances of the Applicant's difficult financial circumstances, I also direct that the Respondent pay into the Applicant's bank account the amount of $240 by 12 noon on 29 January 2013.

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