Ronald Lalli-Cafini v The Trustee for Samios Tyres Business Trust

[2014] FWC 2907

[2014] FWC 2907

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ronald Lalli-Cafini
v
The Trustee for Samios Tyres Business Trust
(U2013/16552)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 2 MAY 2014

Application for relief from unfair dismissal.

[1] Mr Lalli-Cafini’s application for an unfair dismissal remedy is to be heard on 7 May - 9 May 2014. A number of preliminary matters were required to be determined prior to hearing.

[2] A telephone conference was conducted on 1 May 2014 and in the course of that conference I made a number of decisions. These are my reasons for those decisions.

Permission to appear

[3] Ms Noela Quadrio sought permission to appear for the Trustee for Samios Tyres Business Trust (Samios). Ms Quadrio is a human resources consultant engaged by Samios. She submitted that it would enable the matter to be dealt with more efficiently if she was able to represent Samios as she has been involved in the matter and would be able to more efficiently examine and cross examine witnesses. She submitted that Samios is a relatively small business and did not have any in-house human resources personnel.

[4] Mr Lalli-Cafini opposed the application and submitted that Ms Quadrio was acting as Samios’ solicitor and that she is a party to the dispute as she is a witness. It was submitted that she had no knowledge of what went on in Melbourne and she is not impartial.

[5] The Fair Work Act 2009 provides that a paid agent requires permission to appear in a matter before the Fair Work Commission (the Commission). A paid agent is defined as an agent who charges or receives a fee to represent a person in a matter.

[6] In this matter I am prepared to assume that Ms Quadrio is a paid agent.

[7] While this matter does not involve complex legal issues, it does involve a significant number of witnesses.

[8] I granted permission to Ms Quadrio to appear as it would enable the matter to be dealt with more efficiently, given the number of witnesses involved. Further, I accept that it would be unfair to Samios not to permit it to be represented as it is a small business with no specialised human resources personnel. I do not consider the fact that Ms Quadrio is also a witness in the proceeding prevents her from being a representative. If Ms Quadrio had been directly employed to provide human resources services, as opposed to contracted to provide human resources services, she would not have required permission to appear and she could have been both witness and advocate.

Witnesses appearing by video link from Brisbane

[9] Samios requested that two of its witnesses be permitted to appear by video link from Brisbane. It was submitted that this is a small business and it would have a negative operational and financial impact on the business if the Director, Business Manager and Administrative Assistant were all required to be in Melbourne. The Director will be in Melbourne for the hearing.

[10] Mr Lalli-Cafini submitted that it was only fair that these witnesses be required to attend the hearing as all his witnesses will be in attendance and there is a financial strain on him. He also submitted that he needs to be able to question them.

[11] I determined that Ms Fardoulys and Ms Losbanos could give evidence by video link. Mr Lalli-Cafini will be able to cross-examine the witnesses and the demeanour of the witnesses will be able to be observed by the Commission. I accept the submission made by Samios that there will be a negative operational and financial impact on the business if witnesses are required to attend in person.

[12] I do not consider that Mr Lalli-Cafini will be prejudiced in the presentation of his case by having witnesses give evidence by video.

Confidentiality Order

[13] A notice to produce had been served on Samios for the production of CCTV footage. Ms Quadrio advised that the CCTV footage for the day requested was no longer available.

[14] Samios has filed CCTV footage which has not been served on Mr Lalli-Cafini. Samios sought an order that the CCTV footage be subject to a confidentiality order.

[15] Mr Lalli-Cafini opposed the confidentiality order and opposed Samios being able to rely upon that material as it had not been served on him.

[16] I directed Samios to serve the CCTV footage on Mr Lalli-Cafini. Mr Lalli-Cafini expressed concern that he may not receive the material until Monday, 5 May 2014. He objected to it being admitted. I advised Mr Lalli-Cafini that if he was concerned that he had insufficient time to consider the CCTV footage, he could attend the Commission and view the copy filed with the Commission.

[17] I decided to issue a confidentiality order until the end of the first day of the hearing. Whether that order should be extended will be determined at the hearing.

[18] No decision has been made as to whether the evidence that was not served on Mr Lalli-Cafini will be admitted and I will hear submissions on that at the hearing.

Notice to Produce

[19] Mr Lalli-Cafini was ordered to produce certain documents by 10:00am, 30 April 2014. Mr Lalli-Cafini advised that he did not have documents in categories 1 and 4.

[20] Mr Lalli-Cafini objected to the production of the documents in categories 2 and 3.

[21] Samios sought Mr Lalli-Cafini’s telephone records from the date of his termination. Mr Lalli-Cafini objected to the production, submitting that nothing that occurred after his termination was relevant. While that proposition is not correct, given that Mr Lalli-Cafini is not seeking reinstatement, I asked Ms Quadrio if these documents were relevant. She submitted that they were relevant to remedy but did not provide any authority for that proposition.

[22] I set aside order 2 as I do not consider that the post employment phone records are relevant.

[23] Samios also sought Mr Lalli-Cafini’s post dismissal bank records to establish if Mr Lalli-Cafini had earned any monies post dismissal. Samios submitted that Mr Lalli-Cafini had gained employment post dismissal. Mr Lalli-Cafini denied having paid employment post dismissal.

[24] I set aside order 3 because evidence of any employment will be captured by order 4.

Determinative conference or hearing

[25] As Mr Lalli-Cafini expressed a preference for a hearing the matter will proceed by way of hearing.

DEPUTY PRESIDENT

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