Kittisak Saetow v Langham Hotel Melbourne T/A Southgate Hotel Management Pty Ltd

[2017] FWC 6559

[2017] FWC 6559

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kittisak Saetow
v
Langham Hotel Melbourne T/A Southgate Hotel Management Pty Ltd
(U2017/10299)

DEPUTY PRESIDENT CLANCY MELBOURNE, 11 DECEMBER 2017

Application for an unfair dismissal remedy.

[1] On 21 September 2017, Mr Kittisak Saetow made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Saetow said he was notified of his dismissal on 20 September 2017, with it taking effect the same day.

[2] The matter was listed for an attendance conciliation on 17 October 2017 and a Thai interpreter was booked by the Fair Work Commission on behalf of Mr Saetow. However, Mr Saetow did not attend the conciliation. An attempt to telephone Mr Saetow was made by the conciliator and an email sent, though there was no response. Mr Saetow was advised in the email if he wished for the matter to proceed to a further conciliation, email notification was requested within two working days. Mr Saetow did not respond to this correspondence.

[3] On 26 October 2017, parties were sent a Notice of Listing which advised the Conference/Hearing dates and also the Requirements to file material. Mr Saetow was required to file an Outline of Argument, Statement of Evidence and Document List by no later than noon on 20 November 2017.

[4] As no material had been filed, in the afternoon of 20 November 2017 the Commission attempted to telephone Mr Saetow, however there was an immediate notification that the telephone number was no longer in service. Consequently, an email was sent to Mr Saetow advising a written request for an extension of time to file material should be filed as soon as possible.

[5] On 21 November 2017, further email correspondence was sent to Mr Saetow requesting he urgently contact the Commission. It was noted in the absence of a response, the matter would be listed for a non-compliance hearing on 24 November 2017. The email was also sent in the form of a letter to Mr Saetow via express post, of which the tracking number indicates was successfully delivered on 22 November 2017.

[6] A further email was sent to Mr Saetow on 22 November 2017 seeking that he contact the Commission as soon as possible and that the matter would otherwise be listed for a non-compliance hearing. Later that day, in the absence of a response from Mr Saetow, a non-compliance hearing for 24 November 2017 was listed, with Mr Saetow notified via his nominated email address and post.

[7] The non-compliance hearing proceeded before Commissioner Wilson on 24 November 2017. Three attempts were made to contact Mr Saetow and a recording noting the number was not connected was received on each occasion. The Langham Hotel Melbourne made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Saetow had failed to comply with a direction of the Commission. Commissioner Wilson waived compliance with the Fair Work Commission Rules 2013 and accepted The Langham Hotel Melbourne’s oral application. Correspondence was then sent to Mr Saetow informing him of The Langham Hotel Melbourne’s s.399A application. Mr Saetow was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 1 December 2017. This correspondence was sent via email and express post, of which the tracking number indicates was successfully delivered on 28 November 2017.

[8] To date, Mr Saetow has not filed any material with the Commission

[9] 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.

[10] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[11] As Mr Saetow did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[12] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Saetow has failed to respond to the many attempts by the Commission to contact him. Besides initially filing his application, Mr Saetow has shown no willingness to prosecute his case and provided no explanation for either his failure to comply with directions or his non-attendance at the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Mr Saetow’s application.

[13] An order giving effect to this decision will be issued today

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR598510>