Mr Peter Angelakos v Coles Supermarkets Aust Pty Ltd T/A Coles Supermarkets

[2018] FWC 3407

[2018] FWC 3407

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Peter Angelakos

v

Coles Supermarkets Aust Pty Ltd T/A Coles Supermarkets

(U2018/3306)

COMMISSIONER HUNT BRISBANE, 12 JUNE 2018

Application for an unfair dismissal remedy – procedure -  application to appear by video link – application granted.

1. Mr Peter Angelakos has applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to his dismissal by Coles Supermarkets Aust Pty Ltd T/A Coles Supermarkets (Coles).

1. Mr Angelakos was employed by Coles as a Team Member in the Mackay store from 8 August 2016 until his dismissal on 9 March 2018.  Prior to working in the Mackay store, Mr Angelakos was employed by Coles in its Hurstville Station store in Sydney for a number of years.  There was a gap in the employment, and for the sake of clarity, Mr Angelakos’ service for the purposes of the unfair dismissal application is only 8 August 2016 to 9 March 2018.

1. The application was listed for a telephone directions conference on 29 May 2018 for the purpose of programming and scheduling the matter for hearing.  Mr Angelakos has relocated to Sydney, and during the conference he applied to appear at the hearing by video link.

1. Directions were subsequently issued for the filing of material of which also required Mr Angelakos to make his application to appear by video link in writing, supported by the reasons for his request.

1. On 1 June 2018 Mr Angelakos made a written application to appear at the hearing by video link.  Mr Angelakos stated his reasons for making the application as being financial and logistical. Mr Angelakos stated he is currently unemployed and receiving Centrelink payments of $451 per fortnight, and paying approximately $350 per fortnight in rent.  The balance of the payment covers his food and other expenses.  He stated that he cannot afford to transfer or pay his car registration or vehicle insurance.

1. In response to Mr Angelakos’ application, Coles, acting through its legal representative, set out its views and raised contentions of procedural issues with with respect to the application in an email dated 6 June 2018.  The emailed stated:

“•  The investigation which led to Mr Angelakos' dismissal examined 39 separate allegations.

·   The allegations were made by 8 current and former employees.  There were an additional 14 witnesses to the allegations.  It is likely that Coles will file witness statements from all or most of these witnesses, plus at least two people involved in the disciplinary process and the decision to dismiss.  Accordingly, there are likely to be 20-23 witnesses. 

·   I anticipate that Mr Angelakos will need to cross examine most of these witnesses, if he wishes to contradict the allegations relied on to dismiss him.  

·   Further, to comply with its obligations, the Respondent will need to put the allegations to Mr Angelakos in cross examination.  This could foreseeably take between several hours and whole day, depending on the manner in which the questions are answered. 

·   In light of the above, the matter may run for 4 to 5 days.

In light of these matters, the Respondent considers it may be difficult to conduct the matter with Mr Angelakos appearing and giving evidence by video-link.  However, regardless of the Commission's decision on this issue, the Respondent and its representatives will take all steps available to them to assist the Commission to run the matter as efficiently as possible.”

Consideration

1. Section 589(1) of the Act relevantly states:

“The FWC may make decisions as to how, when and where a matter is to be dealt with.”

1. Section 398(4) of the Act states the Commission is to take into account the wishes of the parties as to the way in which an unfair dismissal application is considered and the Commission informs itself.

1. Section 381(1)(b)(i) of the Act states that it is an object of the Commission’s unfair dismissal jurisdiction that it be “quick, flexible and informal which is to be achieved by ensuring a “fair go all around” is afforded to both the employee and the employer.[1] 

1. In Nemcic v Australian Electoral Commission T/A AEC [2018] FWC 2540 Anderson DP stated:

“[12] It is desirable that witnesses in contested proceedings before the Commission give evidence in person. However, this is not always possible. It is not uncommon in the work of the Commission that evidence is given by persons by telephone or by video link, with the Commission’s permission. Modern technology permits and enables that. There are few reasons not to take advantage of the technology available in the interests of convenience, efficiency and cost.” [endnote omitted]

1. The Commission is well-practiced in conducting hearings by video link. In my experience it can often be advantageous, affording efficiency to matters and allowing witnesses either intrastate or interstate to conveniently give evidence without delay or cost.  There are, however, some cons to evidence by video link.  There is often a delay in what is stated by one party being heard by the other; the lag.  This can result in parties inadvertently speaking over each other because they think there is a silence.  It takes some practice of parties to wait until they are completely sure the other party has finished what they wish to say before speaking.

1. In the circumstance where a party wishes to call up to 23 witnesses, I would ordinarily require the other party to appear in person.  It is likely there will be some delay to the proceedings with the potential of cross examination of so many people via video link.

1. I have also given consideration to Mr Angelakos’ decision to relocate from Mackay where he was employed, to Sydney. That was his decision, and he should be expected to attend in Mackay to prosecute his application.  

1. However, in the circumstances where Mr Angelakos is unemployed and relying on Centrelink payments to cover his rent, food and other living expenses, I am mindful that if the application to appear by video link was rejected, Mr Angelakos is highly unlikely to be in a position to prosecute his case at all without benevolence of a friend or family member.  Research indicates that flights can be obtained from Sydney to Mackay for as little as $199 each way.  There are, however, additional expenses including accommodation and transfers that would appear to be out of the reach of Mr Angelakos in his present financial position.

1. Where the hearing is held by video link, all parties will be reminded of the requirement to ensure they are satisfied the other party has finished speaking before they then speak.  If the situation arises where parties are not meeting that obligation, it may be necessary to provide some visual aides such as raising a coloured piece of paper to indicate that one has finished speaking. 

1. For the reasons stated above, Mr Angelakos’ application to appear by video link from Sydney is granted.  The application will be listed for hearing in Mackay with video link to Sydney.

COMMISSIONER

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[1] Fair Work Act 2009 (Cth), Section 381(2).

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