Daniel Barin v Reward Hospitality

[2017] FWC 5592

[2017] FWC 5592

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Barin
v
Reward Hospitality
(U2017/8126)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 OCTOBER 2017

Application for an unfair dismissal remedy.

[1] On 27 July 2017, Mr Daniel Barin made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Barin said he was notified of his dismissal on 6 July 2017, with it taking effect the same day.

[2] The matter was initially listed for conciliation on 22 August 2017, however it could not proceed as Mr Barin was unavailable. Consequently, email correspondence was sent by the conciliator advising the parties that if they wished for the matter to proceed via further conciliation they were to contact the Fair Work Commission (the Commission) within two days or the matter would be referred for arbitration. The following day, Mr Barin sent an email to the conciliator, stating:

“Thank you for your email.

My apology for my absence for yesterday conciliation hearing due to my health condition. I should have called/reported early morning but run out of mobile credit.

I will not be available until next week as we are focusing in moving houses. Anytime after Thursday week I will be alright if there's chance for another schedule.”

[3] On 30 August 2017, Reward Hospitality emailed the Commission to enquire as to the reason for Mr Barin’s non-attendance at the conciliation listed for 22 August 2017. In a telephone call with the Commission on 5 September 2017, Reward Hospitality was advised of the reason given by Mr Barin and provided a copy of his email dated 23 August 2017 in which he requested a further conciliation. Reward Hospitality sent an email to the Commission on the same day and advised that it declined to participate in a further conciliation and requested the matter be referred for a formal hearing.

[4] Consequently, directions were issued and Mr Barin was required to file an outline of argument, statement(s) of evidence and a document list by no later than noon on Monday, 2 October 2017.

[5] On 28 September 2017, an SMS message was sent to Mr Barin, reminding him that his written submissions were due to be filed on the following Monday, 2 October 2017. Mr Barin was advised if he had any questions, he could call the Unfair Dismissal Case Management Team.

[6] As no material had been received, in the afternoon of 2 October 2017 a voicemail message was left for Mr Barin regarding the outstanding submissions and a request was made for a return call as soon as possible. The following day, an email was sent to Mr Barin confirming no material had been filed. Mr Barin was asked to contact the Commission and advise when the submissions would be filed and in the absence of such advice, it was noted that the matter would be listed for a non compliance hearing on 6 October 2017.

[7] On 3 October 2017, an attempt was made by the Commission to contact Mr Barin via telephone, however it was unsuccessful and a voicemail message could not be left. The Commission again attempted to contact Mr Barin on 5 October 2017 to advise the non compliance hearing would be proceeding, however this was also unsuccessful and a voicemail message could not be left.

[8] The non compliance hearing proceeded before Deputy President Gooley on 6 October 2017. Mr Barin did not attend the hearing as he could not be contacted. Reward Hospitality made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Barin had failed to comply with a direction of the Commission. Deputy President Gooley waived compliance with the Fair Work Commission Rules 2013 and accepted Reward Hospitality’s oral application. Correspondence was then sent to Mr Barin informing him of Reward Hospitality’s s.399A application. Mr Barin was directed to file submissions and other documentary material in respect of the s.399A application by close of business on Thursday, 13 October 2017.

[9] To date, Mr Barin has not filed any material with the Commission.

[10] 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.

[11] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

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

[13] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Barin has failed to respond to numerous attempts made by the Commission to contact him. Apart from initially filing his application, Mr Barin has shown no willingness to prosecute his case and provided no explanation for either his failure to comply with directions or his non-attendance at the non compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Mr Barin’s application. An order giving effect to this decision will be issued today

DEPUTY PRESIDENT

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