Richard Kaddour v Ardex Australia Pty Ltd

[2014] FWC 2246

[2014] FWC 2246

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Richard Kaddour
v
Ardex Australia Pty Ltd
(U2012/15703)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 13 MAY 2014

Application for relief from unfair dismissal dismissed.

[1] On 29 April 2014, I issued a decision 1 dismissing Mr Richard Kaddour’s application for an adjournment of his unfair dismissal application. In that decision I detailed the history of the application.

[2] In that decision, Mr Kaddour was put on notice that if he did not attend the hearing of his application on 13 May 2014, his application would be determined in his absence.

[3] At the hearing on 13 May 2014, Mr Kaddour did not appear, nor had he made any contact with my Chambers to explain his failure to do so.

[4] Accordingly, I determined to hear the matter in his absence.

[5] At the hearing, I advised that Mr Kaddour’s application was dismissed. These are my reasons.

[6] In Australian Railways Union; Ex parte Public Transport Corporation 2, the High Court, in observing the powers conferred on the Australian Industrial Relations Commission, said at pages 23 and 24:

“But the wide scope given to the Commission in determining the relief which it will give does not absolve it from an obligation to observe the rules of procedural fairness in exercising its arbitral function. In Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd ((1989) 167 CLR 513 at p519) this Court pointed out that it was well settled that the Conciliation and Arbitration Commission was bound to act judicially and that the Commission, as its successor, is bound to do likewise. The Court went on to point out that one aspect of the duty to act judicially is the duty to hear a party and to allow him or her a reasonable opportunity to present his or her case and, coupled with that duty, is the duty to consider the case put. And in Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty. Ltd ((1993) 67 ALJR 389, at p390; 112 ALR 193, at p194) the Court said that the Commission has a duty in considering an application to afford a party a reasonable opportunity to allow his or her case to be put.”

[7] A Full Bench of the Australian Industrial Relation Commission in Sayer v Melsteel Pty Ltd 3, an appeal where an applicant claimed he had been denied natural justice by not being given an opportunity to be heard, said:

‘[8] When these events are looked at objectively it is clear that there has been no denial of natural justice. Whether he was too ill to attend the hearing on 7 July or not, it is highly unlikely that he was so incapacitated that he was unable to send a message of any kind. But there is no evidence that he took any action to alert anyone to the fact he would not be attending. Mr Sayer was given an adequate opportunity to be heard. While it was open to the Commissioner to adjourn the matter, either generally or subject to some conditions, his decision to decide the matter in the applicant’s absence was not affected by error.

[9] Mr Sayer also submitted that if he were to be permitted to run his case he would have succeeded. In light of our conclusion on the first ground of appeal it is not necessary that we deal with that submission. When an applicant does not take the opportunity provided to prosecute their application, the application will usually fail. It is difficult to envisage circumstances in which it could be otherwise.”

[8] In that decision, the Full Bench consider the approach to be taken if an applicant fails to attend to prosecute their case and the matter is determined in their absence.

“Assuming there is no denial of natural justice, it would be artificial and unproductive to apply the criteria in s.387 on a hypothetical basis involving speculation about the facts. While the applicant had filed material including witness statements, the fact that he did not attend to pursue his case meant that there was no requirement to take that material into account. The respondent’s case was, in effect, unchallenged. Furthermore, the respondent clearly had a defence of substance. If the Commissioner had concluded that the respondent’s case was frivolous or completely lacking in substance it would have been open to him to take another course, but that is not a matter we need to explore.”

[9] The Full Bench further stated 4 that:

“It may be prudent, where a matter is determined in the absence of the applicant, for the tribunal to satisfy itself that the respondent had some defence to the action.

For completeness we point out that s.587(1) provides for the dismissal of an application. In this case it would have been consistent with this provision to dismiss the application without examining the merit”

[10] Applying the appropriate principles to this matter, I am well satisfied that Mr Kaddour has been given an opportunity to be heard and he has failed to take that opportunity. He was aware of the possible consequences of not doing so.

[11] Ardex Australia Pty Ltd filed two witness statements in support of its decision to dismiss. Those witnesses were in attendance at the hearing and available for cross examination. Their evidence is unchallenged and I am able to conclude that Ardex had a defence to Mr Kaddour’s unfair dismissal claim.

[12] An application for an unfair dismissal remedy which is not supported by any submissions or evidence has no reasonable prospects of success. 5

[13] The Fair Work Act’s unfair dismissal regime in Part 3-4 is underpinned by the principle set out in s 381(2) of a ‘fair go all round’. Applying that principle, compels only one conclusion in this matter; that it must be dismissed as it has no reasonable prospect of success.

[14] An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

Ms K Kajan and Mr D Aitken for the Respondent.

Hearing details:

2014;

Melbourne and Brisbane (by video link):

13 May.

 1   [2014] FWC 2760.

 2 (1993) 117 ALR 17.

 3   [2011] FWAFB 7498.

 4   Ibid at [19] and [20].

 5 Section 587(1)(c) of the Fair Work Act 2009.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR549318>