Harrison Curtis v Jesmond Corporation Pty Ltd ATF Jesmond Unit Trust T/A Hotel Jesmond

[2017] FWC 5975

[2017] FWC 5975

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Harrison Curtis
v
Jesmond Corporation Pty Ltd ATF Jesmond Unit Trust T/A Hotel Jesmond
(U2017/10722)

COMMISSIONER SAUNDERS NEWCASTLE, 14 NOVEMBER 2017

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 14 November 2017 to dismiss Mr Harrison Curtis’ application for unfair dismissal (Application) against Jesmond Corporation Pty Ltd AFT Jesmond Unit Trust T/A Hotel Jesmond (Hotel Jesmond).

[2] At a hearing earlier today Hotel Jesmond made an application pursuant to s.399A of the Fair Work Act 2009 (Cth) (Act) to dismiss the Application.

Background

[3] Mr Curtis lodged his Application in the Fair Work Commission (Commission) on 5 October 2017. Hotel Jesmond lodged its response to the Application on 24 October 2017.

[4] On 27 October 2017, a conciliation conference was conducted by the Commission and was unsuccessful in resolving the matter.

[5] The matter was allocated to my chambers on 9 November 2017.

[6] The matter was listed for a directions hearing, by telephone, at 10:00am on 10 November 2017. On 9 November 2017, a Notice of Listing was sent to the email address nominated by Mr Curtis in the Application.

[7] At the directions hearing on 10 November 2017 there was no appearance by or on behalf of Mr Curtis. Shortly after 10:00am on 10 November 2017 my Associate attempted to contact Mr Curtis on the mobile number listed in the Application. No contact was made, however a voicemail message was left requesting Mr Curtis to call my chambers urgently. In light of Mr Curtis’ failure to attend the directions hearing on 10 November 2017, it did not proceed on that day.

[8] At 10:16am on 10 November 2017, my Associate sent an email in the following terms to Mr Curtis (copied to Hotel Jesmond):

“Dear Mr Curtis,

This matter was listed for directions by telephone before Commissioner Saunders at 10am this morning. There was no appearance by or on behalf of you.

The Commissioner has decided to list this matter again by telephone at 1pm on Tuesday, 14 November 2017. It is important that both parties participate in that directions hearing by telephone. A Notice of Listing will be emailed to you shortly with instructions on how to dial in to that directions hearing by telephone. In the event that you do not participate in the hearing by telephone at 1pm on Tuesday, 14 November 2017, your unfair dismissal application may be dismissed without further notice to you.”

[9] The matter was listed again for directions, by telephone, at 1:00pm on 14 November 2017. At 10:19am on 10 November 2017, a Notice of Listing was sent to Mr Curtis’ nominated email address for the directions hearing on 14 November 2017.

[10] My chambers did not receive any communication from, or on behalf of, Mr Curtis in response to the voicemail left for him on 10 November 2017 or the email sent to him on the same day.

[11] At the directions hearing commencing at 1:00pm on 14 November 2017 there was no appearance by or on behalf of Mr Curtis. My Associate attempted to contact Mr Curtis on his mobile number shortly after 1:00pm. No contact was made, however a voicemail message was left requesting Mr Curtis to call my chambers urgently. The directions hearing commenced at approximately 1:07pm on 14 November 2017 in the absence of the applicant. The respondent was represented at the directions hearing by Mr Ryan of the Australian Hotels Association and Mr Ferguson, Licensee and part owner of Hotel Jesmond.

Application for dismissal

[12] During the directions hearing on 14 November 2017 Hotel Jesmond made an application pursuant to s.399A of the Act for the Application to be dismissed on the basis that Mr Curtis had failed to attend the directions hearings on 10 and 14 November 2017 in relation to the Application.

[13] 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; 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 powers under subsection (1) on application by the employer.”

[14] 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

[15] During the directions hearing on 14 November 2017 I exercised my discretion pursuant to s.399A(1)(a) of the Act to dismiss Mr Curtis’ 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 Curtis to attend the directions hearings scheduled for 10 November 2017 and the directions hearing which took place on 14 November 2017 without providing any explanation for such failure, Mr Curtis had unreasonably failed to attend a hearing held by the Commission (on 14 November 2017) in relation to his Application.

Subsequent contact by Mr Curtis

[16] At 1:17pm on 14 November 2017, my chambers received a call from Mr Curtis returning the voicemail left by my Associate. Mr Curtis explained that he had missed my Associate’s call shortly after 1:00pm because he was putting his new born child to sleep. He did not explain why he had not appeared at the directions hearing commencing at 1pm on 14 November 2017. Mr Curtis informed my Associate that he would send an email to chambers in relation to his reasons for not attending the directions hearings. No email had been received from Mr Curtis at the time this decision was published at approximately 4:30pm on 14 November 2017.

[17] In any event, Mr Curtis did not make contact with my chambers until after I had made my ex tempore decision to dismiss the Application during the directions hearing on 14 November 2017.

Conclusion

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

COMMISSIONER

Appearances:

No appearance for the applicant.

Mr P Ryan of Australian Hotels Association for the respondent.

Hearing details:

2017.

Newcastle (by telephone):

November 14.

 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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