Inovit Pty Ltd T/A Inovit v Steven Young

[2017] FWCFB 1307

[2017] FWCFB 1307

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.604—Appeal of decision

Inovit Pty Ltd T/A Inovit
v
Steven Young
(C2017/806)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT GOOLEY
COMMISSIONER BISSETT MELBOURNE, 9 MARCH 2017

Appeal against decision [[2017] FWC 657] of Deputy President Clancy at Melbourne on 20 January 2017 in matter number U2016/11947.

[1] On 20 January 2017 Deputy President Clancy issued a Decision, 1 which found that Mr Steven Young (“the Respondent”) was protected from unfair dismissal and determined that a remedy of $24,750.00 plus 9.5% superannuation, less taxation was appropriate. We now outline a brief background of the matter at first instance before the Commission.

[2] We note by way of historical background that it has been consistently difficult for the Commission to contact Inovit Pty Ltd (“the Appellant”). In particular, the Appellant failed to attend the conciliation scheduled for 2 November 2016 and, accordingly, the conciliation could not take place. On 19 December 2016, 31 January 2017 and 1 February 2017, the Commission made enquiries as to the Appellant’s contact details in Australia in relation to the matter at first instance. However, the Commission was repeatedly informed that there was no contact person in Australia at that stage as the company was located in China. Further, on 3 November 2016, the Commission received correspondence from the Appellant informing the Commission that an employee from the Appellant would arrive in Australia on 12 November 2016 and instruct its solicitor. However, the identification of that solicitor was never provided to the Commission and no contact was made. Further, when the hearing at first instance took place on 20 January 2017, the Appellant did not attend and the hearing proceeded in any event.

[3] On 13 February 2017, the Appellant lodged a Notice of Appeal, appealing against Deputy President Clancy’s Decision. The appeal was listed for hearing before the Full Bench on 6 March 2017 at 2.00pm in accordance with correspondence sent by the Commission on 16 February 2017 attaching a Notice of Listing, Directions and Information Sheet.

[4] In accordance with those Directions, the Appellant was directed to file with the Commission and serve on the Respondent its submissions by 5.00pm on 24 February 2017. The Appellant filed materials via email on 17 February 2017. However, none of those materials contained written submissions in relation to the appeal. The Appellant noted in its correspondence enclosing those materials that it was unable to file any further materials due to being overseas (in China) at the relevant time.

[5] In accordance with rule 56(3) of the Fair Work Commission Rules 2013, the Appellant is required to lodge appeal books with the Commission within 7 calendar days after lodging the notice of appeal. We note that no appeal books were filed by the Appellant in this matter.

[6] On the day of the hearing, numerous attempts were made to contact the Appellant, however, we were unable to contact the Appellant. As such, the hearing proceeded without the Appellant.

[7] Mr A. Vasilaris, solicitor, sought permission to appear for the Respondent. Given the complexity of the matter and having regard to section 596 of the Act, permission was granted to the Respondent to be represented. The Respondent submitted that permission appeal should be refused on account of the Appellant’s non-attendance and lack of material filed supporting the appeal. At the hearing, we indicated our agreement with this submission.

[8] Noting the historical difficulty in contacting the Appellant, as well as there being no written submissions, no appeal books filed with the Commission and no attendance at the appeal hearing by the Appellant, we made an ex tempore decision refusing permission to appeal.

[9] Accordingly, permission to appeal is refused.

VICE PRESIDENT

Appearances:

No appearances for the Appellant.

A. Vasilaris for the Respondent.

Hearing details:

2017.

Melbourne:

6 March

 1   [2017] FWC 657.

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