John Quinn v Virginia Tavern

[2017] FWC 3233

[2017] FWC 3233

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

John Quinn
v
Virginia Tavern
(U2017/1814)

COMMISSIONER WILSON MELBOURNE, 15 JUNE 2017

Application for an unfair dismissal remedy - failure to comply with direction of FWC - s.399A application to dismiss - s.399A application refused - no unreasonable failure.

[1] On 20 February 2017, John Quinn made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). Mr Quinn’s application discloses his employment had been terminated by Virginia Tavern on 8 February 2017, however the Respondent maintains that Mr Quinn resigned from his employment on that date.

[2] On 2 June 2017, I refused an application from the Respondent, made pursuant to s.399A of the Act, to dismiss the Applicant’s application for reason of his non-compliance with a direction of the Commission. In doing so, I was not satisfied that there had been an unreasonable failure by Mr Quinn to comply with a direction. After an invitation from the Respondent to do so, I indicated to the parties that I would commit reasons for my decision to writing. The following are my reasons for decision.

[3] By way of background, directions were issued on 1 May 2017 and the matter listed for hearing following an unsuccessful conciliation of the matter on 27 March 2017.

[4] Mr Quinn was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon on Friday, 12 May 2017. Mr Quinn did not file his submissions within the specified time frame.

[5] On 5 May 2017, submissions provided by the Respondent for permission to be represented by a paid agent were put to Mr Quinn, by email, for his views. My Associate received a telephone call from Mr Quinn on that date; the file note of which records;

“…I confirmed email was an appropriate means of addressing the matters outlined in Chambers' email today, and indeed for all future correspondence with the Commission. He confirmed receipt of the NOL and Directions.”

[6] On 12 May 2017, Mr Quinn left a voicemail message with my Chambers, inquiring as to whether an email had been received from him.

[7] On Sunday, 14 May 2017, the Respondent, through its representative, Mr Matarazzo, filed an application pursuant to s.399A of the Act to have Mr Quinn’s application for unfair dismissal remedy dismissed for non-compliance with the directions of the Commission.

[8] The Applicant was contacted by my Associate on 18 May 2017, by telephone, returning a missed call from Mr Quinn. The file note of that conversation records the following;

“…He said he had sent chambers an email on 7 May (a Sunday). I confirmed it hadn't been received, and confirmed chambers' email address. I asked him to resend that email and it would be raised with Wilson C, he said he would do so right away.”

[9] The file records two further voicemail messages left with my Chambers on that day from Mr Quinn, inquiring as to whether the aforementioned emails had been received. No such email was received.

[10] Later on 18 May, my Chambers issued written correspondence to Mr Quinn, raising the s.399A application which had been made by the Respondent, and seeking reasons why his application should not be dismissed on those grounds by close of business on 25 May 2017. That letter was sent by email and post. Further, the hearing date and directions on the Respondent to file written material were set aside.

[11] My Associate received another telephone call from Mr Quinn, this time accompanied by Paul Holden, a support person, on 24 May 2017. The file note of the conversation is as follows;

“Lengthy conversation with Mr Quinn and Mr Holden. I went through each item of correspondence on the file with Mr Quinn to confirm whether they had been received by him. He advised the 1 May Directions and 18 May s.399A correspondence had not been received. I resent those documents to him but he was unable to confirm their receipt - he cited difficulties with computers. He provided the email address of Mr Holden, … and confirmed that correspondence could be sent to both emails in future. I said I would provide copies of the 1/5 and 18/5 correspondence to Mr Holden, stressing their response to the 18/5 letter was required by close of business tomorrow. I also asked Mr Quinn to attempt to provide the 7/7 email he says he sent objecting to the Respondent's s.596 application, but which hasn't been received by Chambers.”

[12] Copies of the Directions and letter of 18 May were then forwarded to Mr Quinn and Mr Holden.

[13] Prior to the close of business deadline, on 25 May 2017 the Applicant sent two emails to the Commission, from Mr Holden’s email account, which were in the following terms;

“Att luke martin

In response to the defendant having a paid agent.

I do object to this as i do not have a paid agent.

I do not have the resources to be able to do so.

I feel that i wil be placed at a great disadvantage by not having a professional paid agent.

Att luke martin

Complaint (unfair dismissal)

I had 4 weeks leave starting 8 jan 2017

That was approved leave.

I returned 5 feb 2017.

I was informed by a fellow worker i will be sacked, i at the time ignored this comment.

I went to work at 8am 8 feb 2017.

Damien came into the kitchen and said,

We need to have a serious talk.

We went outside he told me he has to let me go due to wastage.

I said i have to get my knives i was followed into the kitchen.

I asked damian what wastage i dont understand.

I got no response.

I had worked for damian for 5 years in that time i had not been given any warnings of any kind.i am at a loss to understand why this has happened.

Please contact me if more infomation is needed.

Thank you john quinn.”

“Atten luke martin

I apologize for any misunderstanding with reguards with some of the emails

I am not computer savvy. As it seems you have not recieved all i have sent and i have not recieved all that have been sent to me.

Thanking you john Quinn”

[14] Both of the foregoing emails were forwarded by my Chambers to the Respondent’s representative on 29 May.

[15] Further, on 29 May, and courtesy of the Respondent, my Chambers was provided with an email sent from Mr Holden’s email account to the Respondent directly, which briefly outlined the circumstances of his dismissal.

[16] Section 399A of the Act provides as follows:

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.

[17] The explanation put forth by the Applicant for his non-compliance with the directions of 1 May is that he did not receive the relevant documents which were emailed to him, and that his computer difficulties may have played some part in the inadvertence. I am satisfied with the explanation provided by Mr Quinn in this regard. The history of the matter indicates a level of engagement by the Applicant with the conduct of the matter, albeit one characterized by some difficulty in corresponding by email effectively. Being satisfied with the explanation, it follows that I could not be satisfied, for the purposes of s.399A(1) of the Act, that there was any unreasonable failure on the part of the Applicant.

[18] The matter will now be programmed for Jurisdiction and Arbitration hearing.

COMMISSIONER

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