and Rolando Xavier v The Trustee for Clipper Pearls Unit Trust T/A Clipper Pearls Pty Ltd

[2014] FWC 4574

[2014] FWC 4574

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marcelino da Costa Oliveira;
Saturnino Soares; and
Rolando Xavier
v
The Trustee for Clipper Pearls Unit Trust T/A Clipper Pearls Pty Ltd
(U2013/14424) (U2013/14427) (U2013/14428)

COMMISSIONER WILLIAMS PERTH, 9 JULY 2014

Applications for relief from unfair dismissal - request to appear by telephone.

[1] This decision deals with a request by each of the three applicants in these matters that the Fair Work Commission (the Commission) allow them to give their evidence by telephone and that they not be required to be present at the hearing of these matters which are listed to be heard in Broome on 20 and 21 August 2014.

[2] It is not disputed that each of the three applicants whilst having worked in Broome prior to their dismissals are from Timor-Leste and currently reside there.

[3] On behalf of the applicants it is submitted that it is practically difficult for them to appear in person for the hearing in Broome due to the cost of travelling there from their homes in Timor-Leste coupled with the fact that it is said that they are suffering financial hardship.

[4] The Commission in its directions has previously advised the applicants that if they are to be allowed to give their evidence by telephone they will be required to have a representative present in person at the Broome hearing who will be able to prosecute their applications.

[5] Each of the applicants has notified the Commission, by completing a form F53−Notice of Representative Commencing to Act, that Mr Kevin John Austin will be representing them.

[6] Mr Austin has confirmed by email to the Commission dated 20 June 2014 that he will be representing the applicants in person at the Broome hearing.

[7] The respondent generally opposes the request that the applicants give evidence by telephone identifying a number of technical difficulties including that translators may be required, the fact that the credibility of the applicants may be raised in the proceedings making it difficult for the Commission to determine this over the telephone and querying the lack of evidence that the financial circumstances of the applicants are as submitted.

[8] Considering these matters, unsurprisingly the Commission’s view is that an applicant giving evidence by telephone is far from preferable however it is not unusual for the Commission to accept evidence by telephone on any number of situations.

[9] In this instance the fact that the applicants no longer reside in Australia is a real practical issue the Commission must have regard for and whilst I accept little evidence has been put forward as to their financial circumstances there is no real reason to dispute what is submitted on their behalf that they are not readily in a position to finance the cost of return travel to Broome plus accommodation for the period of the hearing.

[10] I have explained in my correspondence and directions to the applicants previously that in some circumstances the fact that they are not present in person when giving their evidence may be to their disadvantage.

[11] Subject to the conditions set out below it is my decision that I will allow each of the applicants in this matter to give their evidence by telephone for the hearing of this matter and consequently they are not required to attend the hearing in Broome in person.

[12] The applicants giving evidence by telephone is conditional upon:

1. The applicants’ nominated representative (currently Mr Kevin James Austin) must be present in person at the hearing in Broome.

2. The applicants must be available to be contacted by the Commission on a landline telephone (not a mobile phone) for 20 and 21 August 2014 and that phone line must be kept free for these purposes only.

3. The applicants shall provide the Commission with the details of the landline telephone number no later than Wednesday, 6 August 2014.

COMMISSIONER

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