Mr Peter Mabior v Rew Bros Pty Ltd T/A Rew Bros Cleaning Pty Ltd

[2018] FWC 6195

[2018] FWC 6195

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Mr Peter Mabior
v
Rew Bros Pty Ltd T/A Rew Bros Cleaning Pty Ltd
(U2018/7202)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 4 OCTOBER 2018

Application for an unfair dismissal remedy – procedure – whether determinative conference or hearing – statutory scheme – self represented parties - determination by conference subject to further order

[1] Mr Peter Mabior (the applicant) has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his (alleged) dismissal by Rew Bros Pty Ltd trading as Rew Bros Cleaning (Rew Bros Cleaning or ‘the employer’). He claims to have been unfairly dismissed on 7 July 2018. At the date of dismissal he was employed as a cleaner.

[2] Rew Bros Cleaning oppose the application. No jurisdictional issues arise. The employer says that Mr Mabior was dismissed for failing to follow reasonable instructions of the employer.

[3] On 13 August 2018 conciliation of the application was conducted by a Commission-appointed conciliator. It was not resolved. It was referred to me for hearing and determination.

[4] On 4 September 2018 I conducted a directions hearing and issued directions that same day. I directed that the hearing on 18 October 2018 deal with all issues in dispute, being merits and remedy.

[5] At the directions hearing I raised with the parties the options available to the Commission for determining the matter, and in particular the options set out in sections 388 (conference) and 399 (hearing) of the FW Act. The parties expressed different views. Mr Mabior sought a formal court-room hearing. The employer sought determination by conference. I directed that the parties put written submissions on that issue by 18 September 2018 and 2 October 2018 respectively. Despite being reminded by my Associate, I have received no further submissions on the mode of determination from either party beyond the expressions of view at the directions hearing on 4 September.

[6] I now determine that question.

[7] Sections 397, 398 and 399 of the FW Act provide as follows:

“397  Matters involving contested facts

The FWC must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute.

398  Conferences

(1)  This section applies in relation to a matter arising under this Part if the FWC conducts a conference in relation to the matter.

(2)  Despite subsection 592(3), the FWC must conduct the conference in private.

(3)  The FWC must take into account any difference in the circumstances of the parties to the matter in:

(a) considering the application; and

   (b)  informing itself in relation to the application.

(4)  The FWC must take into account the wishes of the parties to the matter as to the way in which the FWC:

(a) considers the application; and

                  (b)  informs itself in relation to the application.

399  Hearings

(1) The FWC must not hold a hearing in relation to a matter arising under this Part unless the FWC considers it appropriate to do so, taking into account:

(a)  the views of the parties to the matter; and

(b)  whether a hearing would be the most effective and efficient way to resolve the matter.

(2) If the FWC holds a hearing in relation to a matter arising under this Part, it may decide not to hold the hearing in relation to parts of the matter.

[8] I take into account the views expressed by the parties at the directions hearing on 4 September. I also take into account written materials the parties have since placed on the Commission file on the merits.

[9] Both parties in this matter appear to be self-represented. Neither has sought permission under section 596 of the FW Act to be represented by a paid agent or lawyer.

[10] The employer’s preference for a determinative conference appears to be based on a preference for a more informal process. Mr Mabior’s preference appears to be based on his desire to have ‘his day in court’.

[11] Mr Mabior is entitled to ‘his day in court’ as much as the employer is entitled to defend its position in these proceedings. Providing a party their day ‘in court’ does not mean that unfair dismissal proceedings must be conducted in a court room. A hearing by conference is a formal proceeding of the Fair Work Commission and involves the exercise of no lesser jurisdiction than were proceedings conducted in a court room.

[12] I take into account the statutory scheme which provides that determination by hearing should “not” be held unless the Commission considers it appropriate after taking into account the views of the parties and whether that course “would be the most effective and efficient”.

[13] It was noted by the Commission in Asciano Services Pty Ltd v Hadfield:

“The more informal procedures of a determinative conference may be more appropriate for a self-represented litigant…” 1

[14] The substantive issue is whether the nature of these proceedings is more effectively conducted through evidence in conference or evidence in the witness box.

[15] The issues in contention appear to be of narrow compass. It is a conduct and performance based matter concerning interaction between Mr Mabior and certain supervisors, leading hands and managers. Although some factual discrepancies are likely to arise, there is no particular complexity.

[16] Having regard to the facts and materials before me and particularly the circumstances where this matter appears not to be overly complex nor involve significant issues of credit and where the parties are not represented by external lawyers or paid agents, I do not consider that a hearing would be the most effective and efficient way to resolve the matter. Accordingly, section 399(1)(b) of the FW Act is not made out.

[17] I will list the matter for determination by conference, at least in the first instance.

[18] Consistent with the provisions of section 399(3) of the FW Act and the power to inform myself in such manner as I consider fit (section 590(1) FW Act), should I consider it appropriate at any stage of proceedings to proceed by way of hearing rather than conference I will inform the parties, seek their views and make a further determination.

DEPUTY PRESIDENT

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 1   Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618 at [20]