Richard Kaddour v Ardex T/A Ardex Australia

[2014] FWC 2760

[2014] FWC 2760

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Richard Kaddour
v
Ardex T/A Ardex Australia
(U2012/15703)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 29 APRIL 2014

Application for relief from unfair dismissal - request for an indefinite adjournment.

[1] Mr Richard Kaddour was dismissed by Ardex Australia Pty Ltd (Ardex) on 2 November 2012. In March 2013, the then Panel Head for the Termination of Employment Panel adjourned the application pending the outcome of criminal proceedings brought against Mr Kaddour.

[2] On 23 September 2013, Ardex advised the Fair Work Commission (the Commission) that the criminal proceedings had been finalised and as a consequence directions were issued on 31 October 2013 requiring the filing of material by Mr Kaddour by 25 November 2013.

[3] On 20 November 2013, Mr Kaddour sought a further adjournment advising that court proceedings had not been finalised. That application was opposed by Ardex and Mr Kaddour’s request for a further adjournment was declined.

[4] On 27 November 2013, Mr Kaddour’s legal representative filed a notice advising that they no longer acted for him.

[5] On 3 December 2013, Mr Kaddour sought a further extension of time citing an injury and the fact that he was seeking further legal representation. He also advised that he was awaiting a trial date from the Magistrate’s Court. Ardex replied to this email attaching transcript from the court which disclosed that Mr Kaddour had been found guilty of certain offences.

[6] On 5 December 2013, Mr Kaddour was advised that his request for an extension of time had not been approved.

[7] Mr Kaddour did not attend the non-compliance hearing on 6 December 2013 and on that day a letter was sent to him asking him to provide, by 20 December 2013, an explanation of his failure to file the material and attend the non-compliance hearing. He was advised that if he did not, the Commission would determine the application on the material before it.

[8] On 6 December 2013, Ardex filed two witness statements in opposition to Mr Kaddour’s substantive application.

[9] On 13 December 2013, Mr Kaddour wrote to the Commission and advised that he no longer had legal representation and that was the major cause of the delay. He also referred to an eye injury he had suffered. He advised that he was appealing the decision to find him guilty of a number of charges and he did not yet have a hearing date for the appeal. He sought an extension pending the outcome of the appeal.

[10] On 28 February 2014, Mr Kaddour was provided with copies of the statements filed by Ardex on 6 December 2013 as these had not been served on him by Ardex. He was asked to provide any submissions he wished to make in response to the witness statements by 14 March 2014.

[11] Mr Kaddour replied asking that the proceedings be set aside until the court of appeal proceedings are finalised. Other than the existence of an appeal no reasons for this request were provided. No submissions supported his request. Mr Kaddour, apart from stating that the statements are somewhat incorrect, did not file any material in support of his substantive application.

[12] I have decided to deny Mr Kaddour’s request for an adjournment.

[13] It is clear that the existence of simultaneous criminal proceedings does automatically lead to an adjournment of a civil proceeding. Senior Deputy President Watson in Sanford v Austin Clothing Company Pty Ltd 1considered the relevant authorities and I adopt the approach set out in that decision.

[14] There will be no prejudice to Mr Kaddour if his application for an unfair dismissal remedy was heard and determined.

[15] Mr Kaddour gave evidence in his criminal matter and was cross examined. The matter was determined by the Magistrate. The pending proceeding is an appeal.

[16] Further, the matter before the Commission is not the same as the matter before the Court. The Commission does not have to decide if Mr Kaddour is guilty of any criminal offence. The Commission must decide if the termination of Mr Kaddour’s employment was harsh, unjust or unreasonable. Unlike criminal proceedings, the burden of proof is not the criminal standard of beyond reasonable doubt. Where the employer alleges serious misconduct by an employee, the Commission must decide on the balance of probabilities, having regard to Briginshaw v Briginshaw, if the conduct occurred and if it is a valid reason for the termination of employment. In deciding if a dismissal is unfair the Commission must have regard to other factors which are not before the Court in a criminal trial or appeal. Further, any decision of the Commission is not binding on the Court.

[17] Mr Kaddour’s employment was terminated in November 2012. Ardex is entitled to have this matter heard and determined.

The substantive application

[18] Ardex has filed material in support of its opposition to Mr Kaddour’s application and Mr Kaddour has not filed any material. While Mr Kaddour sought an extension of time to lodge his material, that extension was not granted and the directions were not varied. A party should not assume that because they have made an application for an extension of time to lodge material that they are absolved of their obligation to file material as required by the directions.

[19] Apart from his application in which he stated that he was “totally innocent of any alleged wrong doing”, Mr Kaddour has placed no material before the Commission to enable a finding that he was unfairly dismissed.

[20] However, while Mr Kaddour had previously been advised of the refusal to grant his request for an adjournment no reasons had been provided for that decision. I therefore do not propose to dismiss Mr Kaddour’s application.

[21] Mr Kaddour denies any wrong doing. Given there are contested facts in this matter, the Commission is required to conduct a hearing.

[22] This application will be set down hearing at 10:00am on 13 May 2014. In the event that Mr Kaddour does not attend the hearing his application will be determined in his absence.

DEPUTY PRESIDENT

 1   S8287.

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