Ambrose Davidson v Casuarina All Sports Club Inc

[2017] FWC 5656

[2017] FWC 5656

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ambrose Davidson
v
Casuarina All Sports Club Inc.
(U2017/8860)

COMMISSIONER WILSON MELBOURNE, 3 NOVEMBER 2017

Application for relief from unfair dismissal - s.399A application for non-compliance with an order - application granted.

[1] On 16 August 2017, Mr Ambrose Davidson made an application for unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). Mr Davidson’s employment had been terminated by Casuarina All Sports Club Inc. (‘Casuarina’) on either 25 July 2017 as stated in the application, or 27 July 2017 as stated in the employer response.

[2] The matter was listed for an initial conciliation on 12 September 2017, however the conciliation did not proceed as Mr Davidson and the Respondent were unable to be contacted. The Conciliator called Mr Davidson on three separate occasions on the number provided in his application, leaving three separate voice mail messages for him to call back, however no contact was made by Mr Davidson. Mr Reid was also contacted on behalf of the Respondent on the number provided to which an Optus message answered advising the number had been disconnected.

[3] On Wednesday, 20 September 2017 Mr Reid contacted the Commission and requested a further conciliation take place. However, given no contact could be made with the Mr Davidson, the matter was allocated to Commissioner Wilson who issued Directions on 22 September 2017, and listed the matter for hearing in Darwin on 18 October 2017.

[4] Mr Davidson was directed to file an outline of submissions and any evidence he wished to rely on by close of business on 12 October 2017.

[5] On 18 October 2017, the day of the hearing, the Commission called Mr Davidson five times to confirm his attendance for the hearing. All five times Mr Davidson did not answer the phone and a voice message stated that the ‘call cannot be completed please hand up and try again”. As such no voice mail message could be left.

[6] On the same day, the Commission also contacted the Respondent to confirm attendance, however there was no answer. A voice mail message was left for the Respondent requesting urgent contact be made with the Commission as soon as possible.

[7] Later the same day, Mr Reid contacted the Commission and advised that he misunderstood the notice of listing and did not realise he was required to attend. Mr Reid was informed that Mr Davidson also did not attend and that Commission had not been able to make contact with him at this time.

[8] Shortly after, the Respondent, Casuarina made an application to have the application dismissed under s.399A of the Act due to Mr Davidson’s failure to comply with the Directions of the Commission. This was received by the Commission and forwarded to Mr Davidson on 19 October 2017.

[9] The Respondent’s application to dismiss the matter was also sent to the Applicant via
registered post. The registered post tracker confirmation shows that Mr Davidson received this correspondence at 1:32 PM ACST on Friday, 20 October 2017.

[10] Mr Davidson was given until close of business Monday, 30 October 2017 to file materials in response to the Respondent’s application to dismiss the matter.

[11] No submissions were received from Mr Davidson.

[12] Section 399A of the Act provides as follows:

“399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

....

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application”.

[13] I am satisfied that Casuarina’s objection filed on 18 October 2017 is an application to have the matter dismissed for Mr Davidson’s failure to comply with a direction of the Commission.

[14] On 19 October 2017, Mr Davidson was sent correspondence by email and registered post informing him of the Respondents s.399A application. Mr Davidson was directed to file submissions providing reasons, evidence or other documentary material as to why the Commission should not dismiss the Application for Unfair Dismissal remedy pursuant to s.399A of the Act by close of business, on 30 October 2017. The correspondence stated that if Mr Davidson failed to comply with this direction, his application would be dismissed.

[15] As Mr Davidson did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[16] In the absence of advice from Mr Davidson to the contrary, I find this failure to be unreasonable. Accordingly, there are no grounds upon which I would be persuaded to not exercise my discretion to dismiss Mr Davidson’s application. His application for unfair dismissal remedy will be dismissed, and an Order will be issued in conjunction with this decision to that effect.

COMMISSIONER

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