Mr Aydin Cetin v Speedie Waste Pty Ltd
[2014] FWC 6318
•10 SEPTEMBER 2014
| [2014] FWC 6318 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Aydin Cetin
v
Speedie Waste Pty Ltd
(U2014/6235)
COMMISSIONER ROE | MELBOURNE, 10 SEPTEMBER 2014 |
Revoke a decision - Order dismissing an unfair dismissal application - did refusal of adjournment application prevent the Applicant from effectively putting his case.
[1] Mr Aydin Cetin claimed that he had been unfairly dismissed by Speedie Waste Pty Ltd. The application under Section 394 of the Fair Work Act 2009 (Cth) (the Act) was listed for hearing before me on 7 and 8 August 2014. On 6 August 2014 at 5.25pm the representative for Speedie Waste advised the Fair Work Commission (the Commission) that the parties have resolved the application and sought that I make orders that the application be dismissed and that there be no order as to costs.
[2] The email had been copied to Mr Cetin’s representatives, Taylor and Preston lawyers, but not to Mr Cetin’s email address, so on 7 August 2014 my Associate emailed Mr Cetin’s representatives with a copy to Mr Cetin’s email asking for confirmation that Mr Cetin consented to the proposed orders. Mr Cetin’s representatives responded on the same day that “the Applicant has consented to these orders.” I delayed issuing the Orders for a few days just in case Mr Cetin wished to make further comment. I issued the orders on 11 August 2014 and noted that they were made with the consent of the parties. On 28 August 2014 Taylor and Preston lawyers on behalf of Mr Cetin applied to have the order revoked so that the unfair dismissal application could be relisted for hearing before the Fair Work Commission.
[3] It is reasonably clear that the order is a document which can be revoked under Section 603. The order is simply a form for a decision which can be revoked.
[4] The circumstances of this case are distinguishable from a situation where the representative for an applicant submits a notice of discontinuance to the Fair Work Commission and then the representative or the applicant subsequently seeks to reopen the matter. In such a case there has been no Fair Work Commission decision. In this case there has been a decision to dismiss the application which denotes much greater finality than is the case in a situation where the Fair Work Commission notes that a matter has been discontinued or withdrawn.
[5] The parties presented competing arguments about the scope of Section 603 of the Act. I have considered the various authorities to which they referred. I am satisfied that the Section puts the Fair Work Commission in a different position to that which applies in courts. The Section can be utilised to correct obvious errors, respond to unexpected or changed circumstances and or to avoid injustice and unfairness. However, care should be taken if the Section is being effectively utilised as an appeal mechanism. There are specific provisions and processes for dealing with appeals under the Act.
[6] Mr Cetin does not dispute that he agreed to withdraw the unfair dismissal case. He says that the reason he did so was because:
“My representatives advised that it was their responsibility to advise me of the commercial realities I may face and under fear of incurring additional costs, and being unable to fairly prosecute my case, I most reluctantly felt that I had no option but to agree to withdraw the case.”
[7] Mr Cetin does not argue that the order dismissing the case was made due to an error by Taylor and Preston lawyers. He does not suggest that there was any problem with the advice given to him by Taylor and Preston lawyers. Essentially he argues that he withdrew because I refused to grant his representatives an adjournment of the hearing and as a result he was unable to fairly prosecute his case.
[8] The following matters were not in contention in the unfair dismissal case:
● Speedie Waste is a national system employer and is not a small business employer.
● Mr Cetin was dismissed by Speedie Waste on 14 March 2014.
● Mr Cetin had the required minimum period of employment to be protected from unfair dismissal.
● The termination was not for reasons of redundancy.
● Mr Cetin made the application within 21 days after the dismissal took effect.
● Mr Cetin earned less than the high income threshold.
[9] There were significant factual disputes about the alleged conduct of Mr Cetin and the warnings allegedly given to Mr Cetin.
[10] Mr Cetin argues that the refusal of the adjournment led to a denial of natural justice in that he did not have the ability to respond effectively to Speedie Waste’s allegations about his conduct and performance. Mr Cetin particularly refers to:
● The extensive additional material provided to his counsel on the day before the hearing.
● The shortness of the time between receipt of the witness statements and accompanying documents and the hearing The nature of the material provided by Speedie Waste was such that further witness statements and requests for documents may have been required.
● The risk that costs may be awarded against Mr Cetin if he was unable to adequately respond to the material.
● On the evening before the hearing Mr Cetin, based upon the advice of his solicitor, concluded that the failure to grant the adjournment left him with no option but to consent to the order dismissing the case. In this sense the failure to grant the adjournment deprived him of the opportunity to have his case fairly heard.
[11] The issues are:
1. Was additional material provided on the afternoon before the hearing?
2. Was there enough time between the receipt of the witness statements on 31 July and the arbitration to enable the matter to be properly prosecuted including by responding to the material provided by Speedie Waste?
3. Did the failure to provide an adjournment deprive Mr Cetin of the opportunity to have his case fairly heard?
4. Are there other reasons to revoke the order?
[12] Before turning to these issues it is relevant in this case to set out the facts surrounding the adjournment applications.
The adjournment applications
[13] Mr Cetin provided submissions and witness statements on 10 July 2014. Speedie Waste provided materials on 31 July 2014. At 5.17pm on 5 August 2014 Mr Cetin’s representatives made an adjournment application as follows:
“The Applicant respectfully requests an adjournment of the above hearing of at least 3 weeks.
As a result of the Respondents witness statements served late last week the applicant needs to:
1. Prepare further material;
2. Call additional witnesses;
3. Potentially seek discovery of relevant documents in the Employer’s possession.
We believe the above is crucial to the Applicant’s case.
Further, we believe this matter will realistically require longer than 2 days for the hearing.
Accordingly, we respectfully request an adjournment of three (3) weeks.”
[14] At 6.10pm on the same day I advised Taylor and Preston that their application was refused. Taylor and Preston renewed their application the next morning, 6 August 2014, as follows:
“The Applicant has only just received the Employers submissions on the afternoon of Thursday 31 July, 2014. The writer has then been appearing in the Federal Court on Friday, 1st of August in a hearing which lasted the full day.
In perusing the Witness statements on Monday 4th August, 2014 and taking instructions, it is clear that further evidence will be necessary.
The Respondents Outline of Submissions did not arrive with the above and have only been delivered today, Tuesday 5th August, 2014.
Given the volume of the Respondents material, there is insufficient time between the filing of same and the hearing for the Applicant to respond and obtain the necessary evidence.
In the circumstances we do not believe our client will be adequately prepared to meet the various allegations raised in the Respondents material.
We would respectfully request that our request for an adjournment be re-considered.”
[15] A few hours later I responded as follows:
“The Commissioner has considered the further submission from the representatives for the Applicant received late on 5 August 2014 for a delay in the hearing of this matter.
The parties were provided with the notice of listing and directions in this matter on 10 June 2014. It is possible that advice about the dates for witness statements and submissions was also provided earlier at the time of the conciliation.
The Applicant sought and was granted three extensions of time to provide their materials. The original compliance date was 23 June and the materials were provided consistent with the third extension on 10 July 2014. When the extensions were granted to the Applicant of course there were consequential adjustments in the compliance date for the Respondent. The Respondent compliance date of 31 July 2014 has been known to the parties since 8 July 2014.
The Respondent provided their evidentiary material as required on the 31 July 2014. The Respondent did not provide their outline of submissions until they provided the hard copy of the materials. These were received by FWC early in the morning of 1 August 2014. A further electronic copy was provided to FWC on the Monday. It is regrettable that the outline of submissions was late however the outline of submissions is straightforward and does not raise any particularly new issues.
The Commissioner requests that the Respondent provide advice as to when they provided the submissions to the Applicant’s representatives in electronic and or written form and why the submissions were provided late if in fact they were provided late.
The Applicant is now aware of the Respondent’s case. Delay in this matter would be contrary to the object of the unfair dismissal section of the Act (Section 381). FWC is required to deal with these matters using procedures which are “quick, flexible and informal”.
After careful consideration the Commissioner declines the adjournment request. The hearing will proceed as scheduled.”
[16] Later that day, when I was in a meeting and unable to be disturbed, there was a further telephone call from Taylor and Preston. My Associate made the following file note of the call:
“Received telephone call from Applicant's representative at 4:15pm advising they had received more documentation from the Respondent that afternoon and made a third request for the hearing listing tomorrow morning adjourned. Advised that Commissioner was not available and would not be able to make a Decision until the morning, therefore she could put in a written request but would still need to attend the hearing and if necessary could make a verbal request then.”
1. Was additional material provided on the afternoon before the hearing?
[17] I am satisfied that the material provided by email on the afternoon of 6 August 2014 was the same material as that which had been provided to Mr Cetin’s representatives on 31 July 2014. To the extent that Mr Cetin’s representatives mistakenly believed that there was additional material it was open to Mr Cetin to object to the material when the proceedings commenced on 7 August 2014 on the grounds that it had not been provided in accordance with the directions. The provision of the material on the afternoon before the hearing does not provide a basis for finding that the refusal of an adjournment denied Mr Cetin the opportunity to effectively prosecute his case.
2. Was there enough time between the receipt of the witness statements on 31 July and the arbitration to enable the matter to be properly prosecuted including by responding to the material provided by Speedie Waste?
[18] Mr Cetin had earlier made three applications for extension of time to provide his material. Those applications were granted and as a consequence the date for the Respondent to produce its materials had been put back. The Fair Work Commission had previously rejected attempts to delay the proceedings. Speedie Waste provided its witness statements and attachments on the date it was due, admittedly a few hours late. Mr Cetin and his representatives had many weeks of advance notice that they would have to prepare their response to Speedie Waste’s materials in the period between 31 July and 7 August 2014. There is no evidence that Mr Cetin and his representatives dedicated themselves to preparing their response to Speedie Waste’s materials during this period.
[19] Speedie Waste had advised Mr Cetin since 22 April 2014 that it had consistently received customer complaints and that a number of warnings had been issued concerning performance. It was no surprise that Speedie Waste provided evidence in support of this. The material was not that complicated or unexpected however there were a significant number of particular complaints documented.
[20] Mr Cetin was represented. I was satisfied by the responses to my questions that Mr Cetin’s representatives were aware of the normal process of dealing with unfair dismissal matters before the Fair Work Commission. It is common for further evidence to be led from the Applicant and other witnesses in response to the material produced. The allegations can also be challenged through cross examination of Speedie Waste’s witnesses. In this case it is likely that the leading of further evidence and cross examination would be the predominant ways in which the allegations made by Speedie Waste could be challenged. It is of course possible that other witnesses or documents might be able to assist Mr Cetin’s case. Applications could have been made prior to or during the proceedings to admit further specific material or to provide further specific evidence. Any unfairness could only be properly assessed as the case unfolded. The Fair Work Commission is required to proceed speedily and without formality.
[21] I am satisfied that it was reasonable to expect Mr Cetin and his representatives to prepare a response to Speedie Waste’s material in the scheduled period.
3. Did the failure to provide an adjournment deprive Mr Cetin of the opportunity to have his case fairly heard?
[22] It was reasonable to expect that Mr Cetin would be ready to present his case on 7 August 2014. However, if Mr Cetin had identified particular additional witnesses or material which was required to be called but which was not available on 7 August 2014 then this could have been raised during proceedings. Mr Cetin’s representative accepted that My Associate told her late in the afternoon of the day prior to the scheduled hearing that she could make further application when the proceedings commenced. There was no basis for Mr Cetin or his representatives to assume that I would not ensure a fair hearing and that I would refuse reasonable requests to provide further evidence should the course of the case suggest that this was necessary and or appropriate. It was reasonable to assume that I would reject an application for adjournment based upon a general application for time to explore the possibility of finding additional evidence.
[23] Mr Cetin and Speedie Waste did not have to be represented and leave to appear for representatives had not been granted and should not be assumed. The risk of costs was not created by the refusal of the adjournment. The material provided on 31 July could not, in itself, form the basis for a finding that the case had been pursued unreasonably given that the material had not been available to the Applicant when he decided to proceed. Costs are rarely awarded and could only be awarded if it could be shown that the case proceeded unreasonably or vexatiously. If the representatives of Mr Cetin felt that it was obvious that the case was hopeless now that Speedie Waste had provided their material then they may have had good reason to provide advice to Mr Cetin that there was a risk that he might face costs. However, I have no reason to believe this to be the case and Mr Cetin’s representatives did not advance that argument.
[24] The decision to refuse the application for an adjournment was not a denial of procedural fairness. Reasons were given for the refusal. The decision could have been the subject of an appeal and application for a stay order. The application could have been further pressed, based upon better particulars, at the hearing. Mr Cetin’s representatives were advised that this option was available.
[25] The Fair Work Commission has to be fair to both parties in a proceeding and also ensure that matters are dealt with expeditiously, without excessive formality and consistent with principles of natural justice. If a party presses a procedural matter in the lead up to a hearing it may be difficult to balance these sometimes competing objectives. In some cases the proper balance can only be properly assessed when more details emerge and when both parties have the opportunity to put forward submissions in proceedings.
4. Are there other reasons to revoke the order?
[26] There is no suggestion that Mr Cetin’s decision to discontinue his application was made because of duress or threat. If this had been the case it might form a basis to revoke the order.
[27] I have no doubt that Mr Cetin genuinely feels that there was inadequate time to prepare his response to the materials put forward by Speedie Waste. Mr Cetin, after receiving advice from his representatives, considered that it was better to withdraw than to proceed in circumstances where an adequate response had not been able to be prepared. Mr Cetin wants an opportunity to run his case. However, Mr Cetin did not raise an objection to the making of the order in the period between 6 August 2014 when the request for the order was made by representatives and 11 August 2014 when the order was made. This application was not made until three weeks had passed.
Conclusion
[28] For the reasons outlined I can see no basis upon which I should revoke the order. The application is dismissed.
COMMISSIONER
Appearances:
Mr M McKenney appeared for the Applicant.
Mr J D’Abaco appeared for the Respondent.
Hearing details:
2014
Melbourne
September 5
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