Mitchell Standen v NCH Software Pty Ltd

[2019] FWC 5563

[2019] FWC 5563

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mitchell Standen
v
NCH Software Pty Ltd
(U2019/6878)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 9 AUGUST 2019

Unfair dismissal – location of hearing or determinative conference.

[1] Mr Mitchell Standen has commenced unfair dismissal proceedings against NCH Software Pty Ltd (NCH) in the Fair Work Commission (Commission).

Issue

[2] The parties have participated in conciliation but have been unable to resolve the matter. There is a dispute between the parties as to where the hearing or determinative conference should be held. Mr Standen’s preference is for the hearing or determinative conference to be held in the Commission in Newcastle, whereas NCH’s preference is for it to be held in Canberra.

Submissions

[3] Mr Standen wishes for the hearing or determinative conference to take place in Newcastle because that is where he lives and he worked for NCH for more than 3 years prior to his dismissal. Mr Standen has not obtained alternative employment since his dismissal and is in a “limited financial situation”. It would place a burden on Mr Standen to finance the cost of travelling to, and staying in Canberra, for the hearing or determinative conference. In the alternative, and as a compromise position, Mr Standen has suggested that the hearing or determinative conference take place in Sydney.

[4] NCH is desirous of the hearing or determinative conference being held in Canberra because that is where it employed Mr Standen and is where each of the three witnesses who it intends to call to give evidence in the proceedings are based. Those three witnesses constitute the entire management team of NCH and requiring all three employees to be absent from NCH’s office in Canberra would be onerous on NCH. NCH does not have any offices in Sydney or Newcastle.

Principles

[5] The location of the hearing or determinative conference is essentially a matter of case management and proper recognition of the legitimate interests of each of the parties reflected in the balance of convenience as between them and the convenience of the Commission and any economies and efficiencies which may attach to one choice or the other. 1

Consideration

[6] In recognition of the fact that the Commission is Australia’s national workplace relations tribunal and has Members, together with hearing rooms and appropriate resources, in each of Newcastle, Sydney and Canberra, the convenience of the Commission is not a determinative factor in this case.

[7] Mr Standen commenced employment with NCH in February 2015. He applied for the job with NCH in its Canberra office and was successful in being employed by NCH as a software developer. Mr Standen worked in NCH’s Canberra office from February 2015 until about 5 October 2015. In the weeks leading up to 5 October 2015, Mr Standen offered NCH his resignation because he needed to move to Newcastle to live close to his family. An agreement was then reached for Mr Standen to relocate from Canberra to Newcastle at his own expense and to work for NCH remotely from his home in Newcastle on a trial basis. Between about 5 October 2015 and his dismissal on 31 May 2019, Mr Standen worked for NCH remotely from Newcastle, but maintained regular contact with employees in NCH’s Canberra team by Skype and email.

[8] NCH contends that Mr Standen’s work performance was poor for some time prior to his dismissal. Mr Standen denies there was any valid reason for his dismissal.

[9] In about April 2019, NCH gave Mr Standen notice that if he wanted to continue working for NCH, he would need to return to NCH’s office in Canberra. NCH contends this offer was made for the benefit of Mr Standen as a genuine alternative to the termination of his employment on performance grounds. Mr Standen says that he could not afford to move from Newcastle to Canberra. NCH then informed Mr Standen that his employment would be terminated with effect on 31 May 2019.

[10] Balancing the interests of each of the parties, it is my assessment that it would be appropriate for the hearing or determinative conference to be held in the Fair Work Commission in Newcastle, for the following reasons.

[11] First, although Mr Standen was employed by NCH for a job based in Canberra, within Mr Standen’s first year of employment with NCH an agreement was reached between the parties for Mr Standen to move to, and work in, Newcastle, on a trial basis, for his own personal reasons. Mr Standen worked remotely from Newcastle for NCH for more than 3 years prior to his dismissal and he was based in Newcastle at the time of his dismissal.

[12] Secondly, although NCH intends to call three witnesses to give evidence in its case, all of whom are based in Canberra, I intend to allow at least some of those witnesses to give evidence by video from the Commission’s premises in Canberra. Mr Standen intends to call himself to give evidence in support of his case.

[13] Accordingly, I determine that the hearing or determinative conference in these proceedings will be held in Newcastle. The matter will be listed for a directions hearing, by telephone, shortly to facilitate the making of appropriate directions in preparation for the hearing or determinative conference.

DEPUTY PRESIDENT

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 1   Lamb v Hog's Breath Company Pty Ltd (No 1) [2007] FCA 49