Sezer Tekbas v Garankuwa FM Pty Ltd T/A Fineseat Australasia

[2014] FWC 6256

[2014] FWC 6256

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sezer Tekbas
v
Garankuwa FM Pty Ltd T/A Fineseat Australasia
(U2014/1811)

JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT SYDNEY, 11 SEPTEMBER 2014

Application for relief from unfair dismissal - extempore decision.

The following decision (now edited) was given in transcript at the conclusion of the proceedings on 4 September 2014:

[1] This is an application under s.394 of the Fair Work Act2009 (the Act) for an unfair dismissal remedy by Mr Sezer Tekbas (the applicant) against his employer Garankuwa FM Pty Ltd trading as Fineseat Australasia (the employer).

[2] The matter was listed for arbitration before me at 10.00AM on 4 September 2014. The parties were duly notified of the hearing date and directions were issued in relation to the filing of submissions and evidence.

[3] The applicant lodged two submissions with the Commission by way of two short emails. The applicant did not lodge any evidence. The applicant confirmed by way of email that he would not be putting forward any other submissions in relation to the unfair dismissal application.

[4] The employer has filed written submissions and two witness statements from its sole director, Mr Pierre Burger.

[5] The employer contended in its submissions that the applicant was not unfairly dismissed as the termination was one of genuine redundancy under ss.385 and 389 of the Act. It was also submitted by the employer that the termination of the applicant’s employment was not unfair and that the applicant had not provided any evidence or material to show that it was. It was said that the employment was terminated on the basis of genuine redundancy due to a downturn and restructuring of the employer’s business, and that the applicant was duly notified about the reasons for termination and was paid relevant entitlements including to notice, annual leave, long service leave and redundancy.

[6] When the matter came on for hearing before me, Mr Burger attended the hearing and the employer was represented by legal counsel. The applicant did not attend the hearing. The Commission received an email on the morning of the hearing at 9.45AM from the applicant, which stated as follows:

“Hi- I am unable to attend this morning due to illness. Sorry for the late advice- I phoned the 1800 number and left a message at 9;00am this morning and just remembered I had an e-mail from you- please accept my apologies- thanks.

Sezer”

[7] My associate contacted the applicant by telephone on the morning of the hearing at his home and was advised that he was too ill to attend the proceedings and that he wasn’t able to advise us any earlier about his inability to attend. The applicant indicated that he wasn’t well enough to continue the discussion with my associate.

[8] In these circumstances I asked the employer’s representative how the Commission should proceed. Counsel for the employer suggested that there were various options for the Commission. The employer submitted that the preferable course was for the application to be dismissed.

[9] In determining this matter, I have had regard to the general circumstances of the matter, the submissions and evidence filed by the parties and the failure of the applicant to attend the hearing of the proceedings.

[10] It is noted that no medical evidence has been provided as to the applicant’s inability to attend the proceedings. I also note that the applicant has not complied with directions or orders in relation to the production of documents and the filing of relevant evidence in the proceedings.

[11] I have read the material which has been filed by way of submissions and evidence. On the basis of that material I am not persuaded that the unfair dismissal application that has been made is well-founded.

[12] On the basis of the material filed, including the statements provided by the director of the employer and the written submissions of the employer, I am satisfied that the termination of the applicant’s employment was a case of genuine redundancy within the meaning of s.389 of the Act. Even if I was wrong on that matter, there is no material before the Commission that would lead me to the conclusion that, having regard to the various factors in s.387 of the Act, the dismissal was harsh, unjust or unreasonable.

[13] I am also not persuaded that there is a satisfactory explanation for the applicant’s failure to attend the proceedings on 4 September 2014. I note that the failure to attend the proceedings means that the applicant has foregone the opportunity to present further material or evidence to the Commission in support of his application.

[14] For these reasons and in all the circumstances of the matter I have decided to dismiss the application and order accordingly.

SENIOR DEPUTY PRESIDENT

Appearances:

The applicant did not appear.

B Cross, of counsel, appeared on behalf of the employer.

Hearing details:

2014:

Sydney.

September 4.

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