Barkho v Dairy Country

[2016] FWC 529

[2016] FWC 529

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Thaer Barkho
v
Dairy Country
(U2015/2982)
COMMISSIONER RYAN	MELBOURNE, 27 JANUARY 2016

Application for relief from unfair dismissal – representation granted.

[1]        The Respondent had prior to a hearing listed for 14 December 2015 sought permission

to be represented by a lawyer or paid agent at the hearing of the unfair dismissal application.

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The Commission issued a decision on 10 December 2015	refusing permission for the
Respondent to be represented by a lawyer or paid agent.

[2]        The matter was relisted for hearing on 10 and 11 December 2015. On 8 December

2015, the Applicant communicated with my chambers via a friend that he was too unwell to

attend the hearing on those days.

[3]        The matter was relisted for hearing on 14 December 2015. On the evening of 10

December 2015, the Applicant indicated that he would still be too unwell to attend the hearing

on 14 December 2015. Therefore, I listed the matter for Mention on 17 December 2015 and

the Commission booked an interpreter in the Arabic language to assist the Applicant.

[4]        During that Mention, in answer to a question from the Commission, the Applicant

asserted that he had never received a copy of the submissions and witness statements filed by

the Respondent.

[5]        Through an abundance of caution the Commission determined to adjourn the

proceedings to a later date. The Commission sought from the Applicant an email address that

the Applicant had access to. The Commission also sent by Express Post a copy of all of the

material filed by the Respondent.

[6]        The Commission found it difficult to communicate with the Applicant even when

using an Arabic interpreter.

[7]        At the conclusion of the proceedings on 17 December the Commission advised the

Respondent that the Commission would revisit the question of permission to be represented if

the Respondent sought that the Commission do so.
[2016] FWC 529

[8]        The Respondent, on 22 December 2015, sought that the Commission revoke the

decision issued on 10 December 2015 and that the Commission grant permission for the

Respondent to be represented by a lawyer or paid agent. The Respondent copied the

application to the Applicant by post.

[9]        The Commission also forwarded a copy of the Respondent’s representation application

to the Applicant by Express Post and directed the Applicant to file with the Commission any

submissions in relation to the representation application by close of business on 30 December

2015. No submissions were received from the Applicant.

[10]      What started out as a relatively straightforward matter has developed into a difficult

matter. The Applicant’s conduct has made the matter much more difficult to deal with as the

Applicant has shown no preparedness to provide the Commission with email contact details

nor to comply with directions issued by the Commission in circumstances where the

Applicant clearly understood the requirements being placed on him.

[11]      In the present matter I am prepared to revoke my earlier decision refusing permission

for the Respondent to be represented by a lawyer or paid agent and to now grant the

Respondent permission to be represented by a lawyer or paid agent.

[12]      In all of the circumstances of this matter I am satisfied that it would enable the matter

to be dealt with more efficiently, taking into account the complexity of the matter, if the

Respondent’s request for permission to be represented were granted.

COMMISSIONER

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[2015] FWC 8549.