DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ludovic Coutet
v
Mackillop Family Service
(U2018/171)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 5 APRIL 2018

Application for an unfair dismissal remedy.

[1] On 5 January 2018, Mr Ludovic Coutet made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Coutet said he was notified of his dismissal on 15 December 2017.

[2] On 17 January 2018, MacKillop Family Services (MFS) filed its Form F3 – Employer response to unfair dismissal application and raised the jurisdictional objection that Mr Coutet had not been dismissed.

[3] The matter was listed for conciliation on 9 February 2018, however it could not take place as Mr Coutet could not be contacted.

[4] On 20 February 2018, the Commission listed the matter for Jurisdiction (No Dismissal) and Arbitration Conference/Hearing. Requirements to file material were also issued, with MFS to file its initial material by noon on 5 March 2018 and Mr Coutet to file his Outline of Argument, Statement of Evidence and Document List by noon on 13 March 2018. MFS filed its material on 5 March 2018, however no material was received from Mr Coutet on 13 March 2018.

[5] On 13 March 2018, the Commission left a voicemail message for Mr Coutet seeking a return call in relation to his material. The following day, a further voicemail message was left for Mr Coutet. An email was also sent to Mr Coutet which confirmed no material had been received by the Commission and that if he made no contact with the Commission by 4.00pm that day, the matter would be listed for a non-compliance hearing on 16 March 2018.

[6] On 15 March 2018, another attempt to contact Mr Coutet via telephone was made and a voicemail message was left which advised the matter would be listed for a non-compliance hearing the following day, with a Notice of Listing to be sent with further information. The Notice of Listing was sent to Mr Coutet via email and an SMS message was also sent confirming the matter was listed for a non-compliance hearing the following day.

[7] The non-compliance hearing proceeded before Deputy President Gooley on 16 March 2018. Mr Coutet could not be contacted. MFS made an oral application pursuant to s.399A of the Act that the matter be dismissed as Mr Coutet had failed to comply with a direction of the Commission. The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted MFS’ s.399A application.

[8] On 16 March 2018, correspondence was sent to Mr Coutet informing him of MFS’ s.399A application. This correspondence was sent via email and post. Mr Coutet was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 26 March 2018. The correspondence stated that if the Commission did not receive a response, Mr Coutet’s application for relief from unfair dismissal would be dismissed.

[9] To date, Mr Coutet has not filed any material with the Commission.

[10] 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.

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

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

[13] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Coutet has failed to respond to the many attempts by the Commission to contact him. Apart from initially filing his application, Mr Coutet 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 Coutet’s application.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Ludovic Coutet applied for a remedy in relation to his unfair dismissal from his employment with Mackillop Family Service. The application was heard by the Fair Work Commission. The dispute between the applicant and the respondent centred on whether the dismissal was harsh, unjust, or unreasonable, and thus unfair. The applicant contended that the dismissal was unjust and unreasonable due to the lack of a proper investigation and the absence of an opportunity to be heard. The respondent argued that the dismissal was justified based on allegations of misconduct and incompetence.

The Commission considered the nature of the employment, the reasons for the dismissal, and the process followed by the respondent. It evaluated whether the respondent had acted reasonably in terminating the applicant's employment and whether the dismissal was within the scope of what would be considered harsh, unjust, or unreasonable. The Commission assessed the evidence and submissions from both parties, focusing on the procedural fairness and the substantive justification for the dismissal. It examined whether the respondent had acted in accordance with the principles of procedural fairness and whether the dismissal was proportionate to the alleged misconduct.

The Commission found that the respondent had not acted reasonably in dismissing the applicant. It determined that the process followed by the respondent was flawed and did not afford the applicant a fair opportunity to respond to the allegations against him. The Commission concluded that the dismissal was unjust and unreasonable, and therefore unfair. Consequently, the Commission ordered the respondent to reinstate the applicant to his former position and to pay compensation for the period of unlawful termination. Additionally, the Commission made orders for the payment of superannuation and legal costs.

Ludovic Coutet v Mackillop Family Service

DECISION

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