Daniel Catt v Australian Concert and Entertainment Security
[2024] FWC 2897
•18 OCTOBER 2024
| [2024] FWC 2897 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Daniel Catt
v
Australian Concert and Entertainment Security
(U2024/7687)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 18 OCTOBER 2024 |
Application for an unfair dismissal remedy - application dismissed under s399A
On 9 July 2024, Mr Daniel Catt made an application (the application) to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Australian Concert and Entertainment Security Pty Ltd (ACES)
On 23 July 2024, ACES filed a Form F3 – Employer response to unfair dismissal application. ACES objected to the application on the grounds that Mr Catt was not protected from unfair dismissal as he had not completed a period of employment with ACES of at least the minimum employment period.
The matter was listed for a Directions hearing by Video using Microsoft Teams on 29 August 2024.
After hearing from the parties, my Chambers issued directions for the filing and serving of materials and listed the matter for hearing in relation to the jurisdictional objection raised by ACES at 10:00am on 18 October 2024 in person, in Sydney (the Directions).
ACES filed evidence and submissions in accordance with the Directions on 11 September 2024.
Mr Catt was required to file evidence and submissions in accordance with the Directions on 26 September 2024 but did not do so. On 29 September 2024, Mr Catt filed a Form F3 – Employer response to unfair dismissal application which purported to respond to the material filed by ACES. However, this response did not specifically address the jurisdictional issues raised by ACES. Mr Catt did not file any evidence and submissions in relation to the matter.
On 8 October 2024, my Chambers created a Digital Court Book for the hearing and sent this to the parties under cover of an email which confirmed that the hearing would take place at 10:00am on 18 October 2024 in person, in Sydney.
At 9:58pm on 18 October 2024, the day of the hearing, my Associate telephoned Mr Catt as he was not in attendance at the Commission. During this conversation, Mr Catt asked if he could apply for an adjournment but did not advance any reasons in support of such an application or explain why he had not attended the hearing.
At 10:09am on 18 October 2024, before the hearing commenced, my Chambers sent the following email to Mr Catt and copied in ACES:
Dear Mr Catt,
I refer to the above matter which is listed for hearing today 18 October 2024 at 10:00am.
I note that you have not appeared at the hearing and that I have just spoken to you by telephone.
The hearing will proceed today and a decision will be made in your absence. This decision will be published and be publicly available.
However, if you wish to discontinue your application, you may do so by responding to this email no later than 10:20am today, 18 October 2024.
Kind Regards,
[redacted]
At 10:10am my Associate telephoned Mr Catt to inquire if he was able to travel to the Commission. Mr Catt said that he could not. My Associate advised Mr Catt to read the email sent at 10:09am which gave him the opportunity to either discontinue the application or let the matter proceed. Mr Catt advised my Associate that he wanted the matter to go ahead.
The hearing commenced at 10:15am on 18 October 2024. I granted permission to ACES to be legally represented pursuant to s. 596(2) of the FW Act. ACES was represented by Mr McLean of Counsel. I informed ACES that Mr Catt would not be attending the hearing. Mr McLean made an application on behalf of ACES that the application be dismissed pursuant s.399A of the FW Act. At the hearing, after considering submissions made by ACES in support of the application, I made an order dismissing Mr Catt’s application under s.399A of the FW Act. I now provide my reasons for that decision.
Section 399A of the FW Act provides as follows:
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.
Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).
(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.
I am satisfied that the Commission has taken reasonable and appropriate steps to inform Mr Catt of the hearing date, contact Mr Catt on the date of the hearing and inform Mr Catt of the consequences of failing to attend the hearing. Mr Catt has not provided an explanation in relation to why he did not attend the hearing.
In addition, I note that there is no material before me from Mr Catt that addresses the jurisdictional issues raised by ACES.
In the circumstances, I am satisfied that Mr Catt has unreasonably failed to attend a hearing held by the Commission, in relation to the application.
I have therefore decided to dismiss the application pursuant to s. Section 399A(1) of the FW Act.
DEPUTY PRESIDENT
Appearances:
No Appearance for the Applicant
Mr J. McLean
Hearing details:
2024
18 October
In person, Sydney
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