Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for unfair dismissal - non-attendance of Applicant.

[1] This matter was listed for hearing on the 30th and 31st of January 2013. The Applicant Mr Viavattene seeks a remedy for alleged unfair dismissal by Health Care Australia

[2] This is the second listing of this matter, the first adjourned following the arrest of the Applicant on unrelated matters.

[3] Prior to the hearing the Applicant sought to appear by telephone. The Respondent opposed this request but offered to contribute up to $240 in the event the Applicant was directed to attend at the hearing.

[4] The Applicant was directed to attend the hearing by way of a decision dated 25 January 2013 and a payment of $240 was made to the Applicant.

[5] On the day of the hearing the Applicant did not appear. The Respondent and their solicitor appeared for the hearing.

[6] Mr Viavattene was then contacted by the Tribunal by telephone.

[7] During the course of this telephone attendance it became clear that Mr Viavattene had been affected by flooding.

[8] He said he was unable to attend the hearing as there was flood related work to do at his home.

[9] He requested that the matter be heard on the papers without a hearing. He then hung up.

[10] I advised the Respondent that in the circumstances that because of the unusual event of the flood I was not prepared to proceed with the hearing that day.

[11] I advised that I would be prepared to either hear the matter on the papers or adjourn the proceedings.

[12] Mr Capelin opposed hearing the matter on the papers. He did so on the grounds that the matter was subject to significant contested facts and in those circumstances it was not appropriate for an on the papers decision.

[13] In this regard I note that the Applicant seeks to establish that the reasons for his dismissal are because he reported certain workplace incidents. The Respondent alleges the Applicant is a casual employee and in addition there was no work available from the Respondent's clients and therefore there was no dismissal.

[14] This matter involves a contest of facts. To decide this issue, the availability of both the Applicant and the Respondent's witnesses for cross-examination will assist to resolve this issue. It is difficult for both parties to establish their case in the absence of cross-examination of witnesses. Such cross-examination is not available unless there is a hearing of the matter.

[15] On the question of the adjournment of the hearing, it is noted that the Respondent's HR manager Ms Jewitt has flown from Sydney to attend the hearing.

[16] Mr Capelin suggested that in the event I grant an adjournment that I consider the considerable inconvenience and expense to the Respondent and that in the circumstances further expense could be reduced by beginning the hearing, the next day, on the 31 January 2013. This would allow the Respondents to remain in Brisbane rather than fly to Brisbane for a third time for the same matter.

[17] It is the case that it is imperative that matters be dealt with in a timely fashion but this must not be at the expense of fairness to all parties.

[18] Taking into account the inconvenience to the Respondent and the personal and unique circumstances of the Respondent at today's hearing, the matter is adjourned until 31 January 2013.

[19] Additionally given the circumstances where the Applicant's home has been flooded, the order requiring personal attendance is vacated and the Applicant is given leave to attend the hearing by telephone.

[20] An order to this effect will issue separately.

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