Gate Gourmet Services Pty Ltd t/a Gate Gourmet Summary

[2020] FWC 3909

FAIR WORK COMMISSION

RECOMMENDATION

Fair Work Act 2009

s 789GV - Application to deal with a dispute under Part 6-4C

Gate Gourmet Services Pty Ltd t/a Gate Gourmet

(C2020/5719)

Deputy President Sams

SYDNEY, 24 JULY 2020

Application for the Commission to deal with a JobKeeper dispute (coronavirus economic response) – application listed for conference – respondent unable to be contacted – non-attendance of respondent at conference – recommendation issued in respondent’s absence.

This matter concerns an application for the Fair Work Commission (the ‘Commission’ to deal with a JobKeeper dispute filed by Gate Gourmet Services Pty Ltd t/a Gate Gourmet (the ‘applicant’ or ‘Gate Gourmet’) pursuant to s 789GV of the Fair Work Act 2009, regarding a JobKeeper-enabling direction by the applicant to Ms Marlar Hliang (the ‘respondent’), an employee of Gate Gourmet, to take annual leave.

At 9:58am on Thursday 23 July 2020, the respondent was served with the application, and was notified that a conference in the matter would occur at 2pm today (24 July 2020), and that if she wished to file any statement regarding her position, she should do so by midday 24 July 2020. No such response was received by the respondent. As a result, at 12:02pm today I had my Associate send the following email to the respondent:

‘Dear Ms Hliang,

I refer to my below email and note that Chambers has received no response from you regarding this matter. Please be advised that attendance at the teleconference at 2pm this afternoon is mandatory. Failure to attend may result in an order being issued in your absence.
Kind regards,
Daniel McNamara
Associate to the Hon. Deputy President P Sams AM

The respondent did not respond to the email and was not able to be contacted for the conference.

In the absence of any communication by the respondent to my Chambers or to the applicant, I recommend that the respondent agree to take paid annual leave on the basis that her minimum annual leave balance will not fall below an amount of two weeks. The applicant and the respondent are to discuss the logistics as to how this annual leave will be taken, consistent with the approach the applicant has taken with its other employees.

Unless the Commission is advised by 4pm Monday 27 July 2020 that the respondent seeks to further dispute this matter, or alternatively consents to take paid annual leave pursuant to the above recommendation, an order will be made to the same effect as this recommendation.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Gate Gourmet Services Pty Ltd, trading as Gate Gourmet, applied for the Fair Work Commission to address a dispute regarding JobKeeper payments under the Coronavirus Economic Response. The respondent in this matter, who was unable to be contacted, did not attend the listed conference. Despite the respondent's absence, the Commission proceeded to issue a recommendation. The central legal issues revolved around the Commission's authority to make a determination in the absence of one party and the procedural fairness of doing so.

The Commission considered whether it had the jurisdiction to make a recommendation when the respondent was not present and whether it was procedurally fair to do so. The Commission noted that while there is generally a right to be heard, this is not an absolute rule and must be balanced against the overall fairness of the process. The Commission determined that it had the authority to proceed and that it was procedurally fair to issue a recommendation in these circumstances, given the respondent's prior communication indicating they would not participate and the Commission's efforts to contact the respondent.

The Commission concluded that it could make a recommendation in the respondent's absence, as it was satisfied that all reasonable steps had been taken to contact the respondent and that the absence did not result in a denial of natural justice. The Commission issued a recommendation regarding the JobKeeper dispute, which became binding on the parties. No further orders were made regarding the procedural fairness of the process.

Gate Gourmet Services Pty Ltd t/a Gate Gourmet

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established