Benjamin Hedges v Leisure Pools Newcastle Pty Ltd

[2019] FWC 849

[2019] FWC 849

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Benjamin Hedges
v
Leisure Pools Newcastle Pty Ltd
(U2018/10257)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 11 FEBRUARY 2019

Application for an unfair dismissal remedy – s.399A application made by employer – unfair dismissal application dismissed.

[1] This decision concerns an application made by Leisure Pools Pty Ltd (Respondent) pursuant to s.399A of the Fair Work Act 2009 (Cth) (Act) to dismiss the application for unfair dismissal remedy made by its former employee, Mr Benjamin Hedges, pursuant to s.394 of the Act (Application).

Background

[2] Mr Hedges lodged his Application in the Fair Work Commission (Commission) on 5 October 2018.

[3] The Respondent opposed the Application on a number of grounds, including that Mr Hedges had not been employed for the minimum employment period (Jurisdictional Objection).

[4] The matter was listed for a directions hearing, by telephone, on 6 December 2018. Mr Hedges participated in that directions hearing. A Notice of Listing, including directions, was sent to the parties on 10 December 2018 (Directions).

[5] The Notice of Listing informed the parties that the Jurisdictional Objection was listed for hearing in the Commission at Newcastle on 11 February 2019. The Directions (as amended) required the Respondent to file material in relation to the Jurisdictional Objection by 21 January 2019 and Mr Hedges to file material in relation to the Jurisdictional Objection by 4 February 2019. The Directions also included the following relevant information:

“Note:

•  The applicant and respondent must comply with these requirements.

•  Any request for an adjournment of the Hearing or an extension of time to file material must be made prior to the hearing/compliance date and be in writing and based on substantial grounds.

Preparing for a Hearing

What happens at a Hearing?

This matter has been set down for formal proceedings before a member of Fair Work Commission. Hearings generally involve giving sworn evidence, an opportunity to challenge or cross-examine the other party’s evidence, and making submissions.

At the hearing each party will have an opportunity to present their case, and after hearing the evidence the Fair Work Commission Member will decide the matter either in favour of the applicant (employee) or in favour of the respondent (employer).

Attached to this notice from Fair Work Commission are some directions that you must comply with. These directions include a requirement that you file with Fair Work Commission and serve on the other party or their representative an Outline of Submissions and Witness Statements for any witnesses you intend to call (including yourself) at the hearing. You and all your witnesses must attend the hearing and be prepared to give evidence. If you or a witness does not attend the conference/hearing, the application may still proceed and a decision may be made against you…”

[6] The Respondent filed material in accordance with the Directions. That material was provided by the Commission to Mr Hedges.

[7] Mr Hedges did not file any material in accordance with the Directions. As a result, on 5 February 2019, my Associate sent an email to Mr Hedges in the following terms:

“Dear Mr Hedges,

I refer to the attached directions in this matter amended by Deputy President Saunders on 8 January 2019.

You were directed to file and serve material in opposition to the Respondent’s jurisdictional objection as well as submissions seeking permission to be represented by a lawyer/paid agent in this matter by no later than 4.00pm on Monday, 4 February 2019. We note that we have not received any material in accordance with this direction.

As a matter of urgency, you are directed to file and serve an outline of submissions, witness statements and other documentary material you intend to rely on in opposition to the Respondent’s jurisdictional objection as well as submissions seeking permission to be represented by a lawyer/paid agent in this matter by no later than 4:00pm Wednesday, 6 February 2019. If you fail to comply with this direction, the Deputy President may dismiss your unfair dismissal application without further notice to you.”

[8] Mr Hedges did not file any material or respond in any way to the 5 February 2019 email.

[9] At the hearing on 11 February 2019, Mr Beyer, a director of the Respondent, appeared for the Respondent. There was no appearance by or on behalf of Mr Hedges.

[10] Shortly after 10am on 11 February 2019, my Associate telephoned Mr Hedges. Mr Hedges informed my Associate that he was in Canberra working and had forgotten about the hearing.

Application for dismissal

[11] During the hearing on 11 February 2019, the Respondent made an application pursuant to s.399A of the Act for the Application to be dismissed on the basis that Mr Hedges had failed to comply with the Directions and failed to attend the hearing on 11 February 2019.

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

“(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 powers under subsection (1) on application by the employer.”

[13] The discretion of the Commission to dismiss an application under s.399A(1) of the Act is to be exercised by reference to an objective evaluation of the applicant’s conduct and whether such conduct was unreasonable in the circumstances. 1

[14] In light of the history of the proceedings outlined above and the failure of Mr Hedges to comply with the Directions and attend the hearing on 11 February 2019, I am satisfied that:

● Mr Hedges has unreasonably failed to comply with a direction of the Commission relating to the Application;

● Mr Hedges has unreasonably failed to attend a hearing held by the Commission in relation to his Application; and

● there has been an application by the employer in accordance with s.399A(2).

[15] In my view, these failures by Mr Hedges are unreasonable because Mr Hedges was informed, in writing, of the Directions and the hearing date, he was reminded of the Directions and hearing date in my Associate’s email of 5 February 2019 (which attached a copy of the Notice of Listing and Directions), he was given a further opportunity on 5 February 2019 to file material, and he did not seek a variation of the Directions or an adjournment of the hearing at any time. I do not accept the fact that Mr Hedges was working in Canberra on 11 February 2019 and had apparently forgotten about the hearing to be a satisfactory explanation for his conduct. Had Mr Hedges made an adjournment application prior to 11 February 2019 on the basis that he had to work in Canberra on 11 February 2019, it is likely that the hearing would have been put back to a later date. However, Mr Hedges did not make any such application. Indeed, Mr Hedges did not respond in any way to the email sent to him on 5 February 2019. In contrast, Mr Beyer, a director of the Respondent, took time out of his working day on 11 February 2019 to attend the hearing in the Commission at Newcastle.

[16] In the circumstances, I exercise my discretion pursuant to s.399A(1)(a) of the Act to dismiss Mr Hedges’s unfair dismissal Application.

DEPUTY PRESIDENT

Appearances:

Mr J Beyer, a director of the Respondent, for the Respondent

Hearing details:

2019.

Newcastle:

11 February.

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 1   Allen v Army and Air Force Canteen Service [2013] FWC 9209 at [42]; Newbond v GM Holden Ltd[2015] FWC 6024 at [33]