William Daws v Emmetts Sa Pty Ltd

[2024] FWC 3525

[2024] FWC 3525

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

William Daws
v

Emmetts Sa Pty Ltd

(U2024/13215)

COMMISSIONER PLATT ADELAIDE, 18 DECEMBER 2024

Application for an unfair dismissal remedy – procedural issues – application to vary directions – variation declined

1. On 5 November 2024, Mr William Daws (the Applicant) lodged an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Emmetts Sa Pty Ltd (the Respondent).

1. On 28 November 2024, the matter was allocated to my Chambers.  I understand that the correct name of the Respondent is Pringles Ag-Plus Pty Ltd. No application to vary the Respondent’s name has been made to date.

1. The Respondent in this matter was initially represented by the Motor Traders Association (MTA). The Applicant is represented by Mr Andrew Wright of WK Lawyers. Permission has not yet been granted.

1. On 29 November 2024, my Chambers corresponded with the parties and the representatives and sought their views on participation in a Member Assisted Conciliation. Parties were advised of my intention to list the matter for Hearing in the week commencing 6 January 2025.

1. On 2 December 2024, Directions were issued for the conduct of an in-person Hearing in Adelaide on 7 January 2025 with the Applicants material due by no later than 12 December 2024 and the Respondents material due by no later than 19 December 2024.

1. By 29 November 2024, both parties agreed to participate in a Member Assisted Conciliation which was initially scheduled before Deputy President Anderson on 9 December 2024. On 5 December 2024, Deputy President Anderson advised there was a conflict of interest and as a result, the matter was referred to Deputy President Masson to conduct the Member Assisted Conciliation on 12 December 2024. The parties were advised that the conciliation opportunity did not detract from the obligation to comply with the Directions.

1. On 3 December 2024 Mr Wright on behalf of the Applicant, emailed Chambers noting that the Applicant would be required to drive six hours to attend the Hearing and requested attendance by teleconference.  I then sought advice from the parties as to the conduct of the Hearing in Port Lincoln (which appears to be significantly closer to most of the witness’s location) or Adelaide.

1. At 11:56am on 4 December 2024, the MTA on behalf of the Respondent sought that the Hearing be adjourned until 15 January 2025 due to the availability of the Applicant’s representative, issues with some of the Respondents witness availability and that the Respondent was considering briefing Counsel. As I was not able to conduct a Hearing between 10 January 2025 and 28 January 2025, the request was declined.

1. At 3:57pm on 4 December 2024, the Respondent’s representative advised “The Respondent will be in a position to follow the directions as set by Commissioner Platt, however, please note that Elyse Otto, Emmetts People and Performance Business Partner, will not be able to attend due to previously arranged leave. If required Elyse Otto will be able to submit a statement in line with the Commissioner's directions.” I did not take issue with this position.

1. The Member Assisted Conciliation was conducted on 12 December 2024 before Deputy President Masson.

1. The Applicant filed their material on 12 December 2024. I infer from this that the Member Assisted Conciliation did not result in the resolution of the matter.

1. On 12 December 2024, Mr Will Snow of Snow Legal filed a Form F53 to act on behalf of the Respondent.

1. On 16 December 2024, the Respondent’s representative sought the Directions be varied so as to defer the Respondent’s obligation to file statements, submissions and documents until 24 January 2025, the Applicant’s reply material would be delayed until 8 February 2025 and that the Hearing be for two days’ duration on a date after 17 February 2025.

1. The grounds for the application to vary the Directions appear to focus on the number of pages of material filed by the Applicant, the need to call 6 witnesses, the inability of the Respondent to prepare 6 witness statements and the inability to call witnesses on 7 January 2025 due to the grain harvest and the customary taking of leave in the Christmas/New Year break.

1. The Application was refused on 17 December 2024 on the basis that - the Respondent has been on notice of the requirement to file its material since 2 December 2024 (and the proposed Hearing dates since 29 November 2024), the Respondent’s (then) representative agreed to the Directions on 4 December 2024, the Directions were structured so as to avoid the need for the parties to prepare statements over the Christmas/New Year break, the Applicant had already filed his material and thus the Respondent would be advantaged by the additional month to prepare its material, the Applicant is seeking reinstatement which supports the prompt conduct of a Hearing, and my obligations under s.577 of the Act.

1. Whilst I did not advise the parties, I am able to schedule an additional day on 8 January 2025 and subject to the matters in dispute, Ms Otto may be able to give her evidence by teleconference. My offer to hear the matter in Port Lincoln remains open (subject to Court room availability).

COMMISSIONER

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