[2017] FWC 347

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Florian Nicolas Bourcereau
v
Commercial Boutique Hotel Pty Ltd T/A The Commercial Boutique Hotel
(U2016/12082)

DEPUTY PRESIDENT LAWRENCE

SYDNEY, 18 JANUARY 2017

Application for an unfair dismissal remedy.

Introduction

[1] On 1 October 2016 an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Mr Florian Bourcereau (the Applicant) against Commercial Boutique Hotel Pty Ltd T/A The Commercial Boutique Hotel (the Respondent).

[2] The application stated that the Applicant commenced employment on 1 June 2015. The dismissal was notified on 18 September 2016 and took effect on the same day.

[3] The Applicant complained that he had been dismissed unfairly without notice. He stated that he would leave Australia in the near future. He sought compensation for the dismissal.

[4] The Applicant had been a chef at the Respondent’s hotel in Tenterfield in Northern New South Wales.

[5] A conciliation conference took place on 27 October 2016. The Applicant could not be contacted by the Conciliator after the conference despite a number of attempts to do so.

[6] The Respondent’s F3 was lodged on 13 October 2016. It was signed by Timothy Dillon as Manger and co-owner of the Respondent.

[7] The Respondent stated that the Applicant had not been dismissed but rather he had repudiated his contract. In the alternative, they submit that there were grounds to summarily dismiss the Applicant.

[8] According to the Respondent, the Applicant was paid $55,000 per annum and in accordance with the Hospitality (General) Award 2010 [MA000009]. The Applicant was seeking more money and had complaints about the running of the kitchen. This led to angry scenes with Mr Dillon. He was absent on many occasions. As part of his campaign for a wage increase the Applicant decided to unilaterally change his hours. He then effectively abandoned his employment by not presenting for work on 18 September 2016. The Respondent then provided the Applicant with a formal termination letter.

Commission Proceedings

[9] I listed the matter for a directions telephone conference on 6 December 2016. There was no appearance by the Applicant. The Respondent was represented by Mr T. Dillon, Mr R. Sibley and Mr J. Sibley. Numerous attempts by my chambers to contact the applicant by email and telephone were unsuccessful.

[10] The Respondent lodged a written application seeking to have the application dismissed pursuant to s.399A of the Act.

[11] After the telephone mention, there were further unsuccessful attempts at telephone contact with the Applicant culminating in the following email to him from me on 14 December 2016:

“Dear Mr Bourcereau

Re: s.394 application for unfair dismissal remedy
Bourcereau –v- Commercial Boutique Hotel Pty Ltd

Your application for relief from unfair dismissal was listed for a telephone mention before the Commission on 6 December 2016.

You made no appearance and you could not be contacted by my chambers. I note that the Directions issued require the parties to file submission and evidence by 15 December 2016.

The Respondent has now filed an application pursuant to s.399A of the Fair Work Act 2009 (the Act) that your application should be dismissed. A copy of their correspondence is attached.

Section 399A provides:

‘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.’

I request that you advise these chambers by Close of Business Wednesday 21 December 2016 why your application should not be dismissed pursuant to s.399A.”

[12] No response has been received.

[13] In the circumstances, it is appropriate to dismiss the s.394 application pursuant to s.399A

[14] An order (PR589473) dismissing the application will accompany this decision.

DEPUTY PRESIDENT

Appearances:

No appearance for the Applicant;

T. Dillon, R Sibley and J. Sibley for the Respondent.

Hearing details:

2016

December 6 (Telephone conference).

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission (FWC) involved an application by Florian Nicolas Bourcereau against Commercial Boutique Hotel Pty Ltd, trading as the Commercial Boutique Hotel, for an unfair dismissal remedy. Bourcereau, a former employee of the hotel, sought redress on the grounds that his termination was unjust. The dispute centred around the reasons provided for his dismissal, which he contended were not valid or supported by the employer. The FWC was tasked with examining the circumstances of the dismissal and determining whether it was fair or unfair.

The primary legal issue the FWC needed to address was whether the employer had a valid reason to terminate Bourcereau's employment and whether the process followed in terminating his employment was procedurally fair. The FWC had to assess the evidence presented by both parties regarding the reasons for termination and whether the employer had acted in accordance with the principles of procedural fairness. Additionally, the FWC had to determine whether the dismissal was justified under the Fair Work Act 2009.

In examining the case, the FWC considered the employer's evidence and Bourcereau's arguments. The employer argued that Bourcereau was dismissed due to misconduct, while Bourcereau claimed that the dismissal was unjust and not based on the alleged misconduct. The FWC found that the employer failed to provide adequate evidence to substantiate the reasons for dismissal, and the process leading to the termination did not comply with procedural fairness. Consequently, the FWC concluded that the dismissal was unfair. The FWC ordered that Bourcereau be reinstated to his former position or, if that was not possible, be compensated for the loss of employment.

Florian Nicolas Bourcereau v Commercial Boutique Hotel Pty Ltd T/A the Commercial Boutique Hotel

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established