David Holm v EIG Cash & Carry (Newcastle) Pty Ltd

[2018] FWC 1049

[2018] FWC 1049

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

David Holm

v

EIG Cash & Carry (Newcastle) Pty Ltd

(U2017/13263)

COMMISSIONER SAUNDERS NEWCASTLE, 16 FEBRUARY 2018

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

1. This decision sets out the reasons for my decision delivered ex tempore and recorded in transcript on 16 February 2018 to dismiss Mr David Holm’s application for unfair dismissal (Application) against EIG Cash & Carry (Newcastle) Pty Ltd (EIG Cash & Carry).

1. At a hearing on 16 February 2018, EIG Cash & Carry made an application pursuant to s.399A of the Fair Work Act 2009 (Cth) (Act) to dismiss the Application.

Background

1. Mr Holm lodged his Application in the Fair Work Commission (Commission) on 14 December 2017. EIG Cash & Carry lodged its response to the Application on 28 December 2017.

1. On 1 February 2018, a conciliation conference was conducted by the Commission. At the conciliation conference on 1 February 2018, there was no appearance by or on behalf of Mr Holm.

1. The matter was allocated to my chambers on 7 February 2018.

1. The matter was listed for a directions hearing, by telephone, at 9:30am on 15 February 2018. On 12 February 2018, a Notice of Listing was sent to the email address nominated by Mr Holm in the Application for the directions hearing on 15 February 2018.

1. At the directions hearing on 15 February 2018, there was no appearance by or on behalf of Mr Holm. Shortly after 09:30am on 15 February 2018, my Associate attempted to contact Mr Holm on the mobile number listed in the Application. No contact was made, however a voicemail message was left requesting Mr Holm to urgently phone my chambers.

1. In light of Mr Holm’s failure to dial into the directions hearing on 15 February 2018, it did not proceed on that day.

2. At 11:11am on 15 February 2018, my Associate sent an email to Mr Holm (copied to EIG Cash & Carry) informing him that the matter was listed for a directions hearing (by telephone) at 2:00pm on 16 February 2018 and his Application may be dismissed without further notice to him if he did not participate in that directions hearing.

1. At 11:15am on 15 February 2018, a Notice of Listing was sent to Mr Holm’s nominated email address for the directions hearing, by telephone, at 2:00pm on 16 February 2018.

1. My chambers did not receive any communication from, or on behalf of, Mr Holm in response to the voicemail left for him on 15 February 2018 or the email sent to him on the same day.

1. At the directions hearing commencing at 2:00pm on 16 February 2018, there was no appearance by or on behalf of Mr Holm. The directions hearing commenced on 16 February 2018 in the absence of the applicant. Mr Laws participated in the directions hearing on behalf of the respondent. Mr Holm did not participate in the directions hearing.

Application for dismissal

1. During the directions hearing on 16 February 2018, EIG Cash & Carry made an application pursuant to s.399A of the Act for the Application to be dismissed on the basis that Mr Holm had failed to attend the directions hearings on 15 and 16 February 2018 in relation to the Application.

1. 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;

(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.”

1. 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]

1. During the directions hearing on 15 February 2018, I exercised my discretion pursuant to s.399A(1)(a) of the Act to dismiss Mr Holm’s Application. I did so on the basis that dismissal of the Application was, in my view, appropriate in the circumstances to which I have referred and because I was satisfied that:

(a)there had been an application by the employer in accordance with s.399A(2); and

(b)in light of the history of the proceedings outlined above and the failure of Mr Holm to attend the directions hearings scheduled for 15 February 2018 and the directions hearing which took place on 16 February 2018 without providing any explanation for such failure, Mr Holm had unreasonably failed to attend a hearing held by the Commission (on 16 February 2018) in relation to his Application.

Conclusion

1. For the reasons set out above, the unfair dismissal application lodged by Mr Holm has been dismissed pursuant to s.399A(1)(a) of the Act.

COMMISSIONER

Appearances:

No appearance for the applicant.
Mr J Law for the respondent.

Hearing details:

2018.
Newcastle (by telephone)
February 16.

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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]

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