Jonathan Rapa v Hunter and Northern Logistics Pty Ltd

[2015] FWC 6862

[2015] FWC 6862

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jonathan Rapa
v
Hunter and Northern Logistics Pty Ltd
(U2015/6781)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 6 OCTOBER 2015

Application for relief from unfair dismissal.

[1] Mr Jonathan Rapa lodged an application seeking an unfair dismissal remedy.

[2] On 21 August 2015, Mr Rapa’s representative filed an application for the production of documents.

[3] Directions were issued on 28 August 2015 for Mr Rapa to file submissions and witness statements to support his claim by noon on 21 September 2015.

[4] On 28 August 2015, Mr Rapa’s representative telephoned the Fair Work Commission seeking an extension of time to lodge material as he would be absent from the second week in September until approximately 20 October 2015. On 31 August 2015 that request was put in writing relying on Mr Rapa’s financial position, the need to have the documents sought in the notice to produce and the unavailability of Mr Rapa’s representative from 4 September until 19 October 2015. The Applicant’s representative asked that Mr Rapa be given until 9 November 2015 to file his material.

[5] On 1 September 2015, the Respondent’s solicitors advised that they opposed the making of the orders sought but did not comment on the proposed extension of time.

[6] The matter was listed for a mention on 3 September 2015. At that hearing, the Applicant’s representative advised that he did not press for the notice to produce to be made. I directed the parties to confer in relation to the future programming of the matter.

[7] On 4 September 2015, Mr Rapa’s representative sent an email to the Commission and the Respondent’s representative proposing dates. On the same date, the Respondent’s representative advised that she was seeking instructions on the proposal.

[8] By email dated 4 September 2015, the Respondent opposed the orders sought. It was submitted that the reasons in support of the application were not persuasive or sufficient. It was said given the directions were issued on 28 August 2015, Mr Rapa had sufficient time to prepare his material. It was submitted that the Respondent would be prejudiced by the delay because should Mr Rapa succeed at arbitration and seeks reinstatement and back pay, the amount ordered to be paid would be increased due to the delay.

[9] On 15 September 2015, I determined to grant Mr Rapa an extension of time to lodge his material.

[10] These are my reasons.

[11] At the date the directions were issued, no hearing date had been determined, though the extension of time would delay the hearing. Mr Rapa’s representative acted promptly in advising the Commission of the need for an adjournment. I do not consider that the Respondent will be prejudiced in the matter they describe. The Commission in crafting a remedy in an unfair dismissal matter is able to have regard to any delay in the hearing of the matter caused by Mr Rapa. Mr Rapa had sought the assistance of a paid agent and while that did not absolve him of the responsibility of ensuring the directions were complied with, the unavailability of his representative from 4 September to after the date for compliance meant that he either had to engage a new representative, file the material himself or seek an extension of time. In all the circumstances I considered the request to be reasonable and varied the directions.

DEPUTY PRESIDENT

Appearances:

Mr M Alkan on behalf of the Applicant.

Ms R Patti for the Respondent.

Hearing details:

2015.

Via telephone:

September 3.

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