Christophe Jeanne v Shopfitting & Building Services Pty Ltd T/A Shopfitting & Building Services Pty Ltd
[2018] FWC 7587
•14 DECEMBER 2018
| [2018] FWC 7587 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Christophe Jeanne
v
Shopfitting & Building Services Pty Ltd T/A Shopfitting & Building Services Pty Ltd
(U2018/10215)
| Deputy President Clancy | MELBOURNE, 14 DECEMBER 2018 |
Application for an unfair dismissal remedy.
On 3 October 2018, Mr Christophe Jeanne made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Jeanne said his employment had been terminated by Shopfitting & Building Services Pty Ltd (S&BS) on 12 September 2018.
A conciliation took place on 22 October 2018, however the matter did not resolve. Consequently, directions were issued for the filing of material. Mr Jeanne was directed to file his material by no later than noon on 26 November 2018. S&BS was directed to file its material by no later than noon on 17 December 2018.
As no material was received by noon on 26 November 2018, the Commission attempted to telephone Mr Jeanne on 28 November 2018 regarding the status of his submissions. There was no answer and it appeared the phone number had been disconnected. An email was subsequently sent to Mr Jeanne noting that if no extension request or submissions were received, the matter would be listed for a non-compliance hearing to occur via telephone on 30 November 2018.
On 29 November 2018, a Notice of Listing was sent to the parties confirming the details of the non-compliance hearing at 10.00am (AEDT) on 30 November 2018. Later the same day, Mr Jeanne wrote to the Commission and requested he be contacted on an alternate phone number for the hearing as he was overseas.
The non-compliance hearing proceeded before Commissioner Bissett on 30 November 2018. Mr Jeanne could not be contacted. S&BS made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Jeanne’s failure to comply with the direction of the Commission. The Commissioner waived compliance with the Fair Work Commission Rules 2013 and accepted S&BS’s oral application
Following the non-compliance hearing, correspondence was sent to Mr Jeanne’s nominated email address advising him of S&BS’s s.399A application. Mr Jeanne was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 7 December 2018. Shortly after the correspondence was sent to Mr Jeanne, he spoke with a member of the Commission’s staff who confirmed the non-compliance hearing proceeded in his absence and he was required to respond to the s.399A application by 7 December 2018.
On 6 December 2018, Mr Jeanne sent email correspondence to the Commission. He said:
“As per noticed, I was expecting a phone call on the 30th November 2018 at 10am, Australian time. However since I am currently residing in Mauritius I missed the call due to the change of time (-7). I send an email on the 29th November confirming my new phone number in Mauritius. When I received the call it was 3:24 am. Later that day I received another call stating I should send a written explanation of the situation.
Moreover I have my hearing in court schedule for the 14th January 2019. Since I am not in the country, and I will have to apply for a visitor visa, which are additional cost, is there any alternative you can suggest me in my case? Since I just came back to my country, there has been a lot of expenses, therefore finance wise it will be impossible for me to attend the hearing.” [direct quote]
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.
The power to dismiss an application if the non-compliance was unreasonable is discretionary. In response to the Notice of Listing which detailed the time and date of the non-compliance hearing, Mr Jeanne confirmed his telephone number. He did not request an adjournment, despite being in a different time zone. His email of 6 December 2018 confirms that he did receive a call at 3.24am, though he does not provide an explanation as to why he did not answer the call which he was on notice about receiving. Mr Jeanne also provided no explanation for his failure to comply with the Commission’s directions to file his material by no later than noon on 26 November 2018. Mr Jeanne has not exhibited a willingness to prosecute his case, despite appearing to state he wishes the hearing to proceed in some manner convenient to him. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Jeanne’s application. An Order to this effect will be issued shortly.
DEPUTY PRESIDENT
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