Mr Andrew Pappas v Cape Australia Onshore Pty Ltd T/A Cape Australia

[2015] FWC 8857

[2015] FWC 8857

FAIR WORK COMMISSION

DECISION

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

Mr Andrew Pappas
v
Cape Australia Onshore Pty Ltd T/A Cape Australia
(U2015/10838)

COMMISSIONER WILLIAMS PERTH, 22 DECEMBER 2015

Termination of employment.

Introduction

[1] Mr Andrew Pappas has made an application under section 394 of the Fair Work Act 2009 for an unfair dismissal remedy. The respondent is Cape Australia Onshore Pty Ltd.

[2] The matter was dealt with by a Fair Work Conciliator in September 2015 however the matter was not resolved.

[3] The matter was referred to myself and Directions were issued to the parties to provide witness statements and submissions. These directions were complied with.

[4] The parties were notified that a conciliation conference was listed for 10am Tuesday, 17 November 2015 at the direction of the Commission. At that time two representatives for the respondent attended, however Mr Pappas did not attend.

[5] Consequently later that day the respondent made an application under section 399A for the application to be dismissed due to Mr Pappas having failed to attend a conference conducted by the Commission.

[6] Mr Pappas by email later that day advised that he had been unable to attend the conference for medical reasons.

[7] This decision concerns the application under section 399A to dismiss Mr Pappas’s unfair dismissal remedy application.

Legislation

The relevant provision of the Act is set out below.

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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.

Consideration

[8] In compliance with directions Mr Pappas has provided a medical certificate which was addressed to the Fair Work Commission which certifies that a doctor had seen Mr Pappas on 17 November 2015 and that he was referred to hospital where he was admitted that day, and as such was unable to attend the Commission conference.

[9] At the hearing Mr Pappas in oral submissions explained the circumstances leading up to his admission to hospital on that day. Mr Pappas is under the care of a psychologist and will continue to receive treatment next year. It is sufficient for the purposes of this decision to note that earlier this year Mr Pappas partner died in circumstances that necessitated the police coronial investigation unit preparing a report for the Coroner. At the hearing Mr Pappas provided a number of supporting documents which are consistent with his explanation, which I accept to be true.

[10] Based on the information provided by Mr Pappas I am satisfied that his failure to attend the conference conducted by the Commission on 17 November 2015 was not unreasonable. Consequently I will dismiss the section 399A application.

[11] Mr Pappas should appreciate that this decision is not an indication that his unfair dismissal remedy application has any merit.

[12] What this decision means is that Mr Pappas is still able to continue with his unfair dismissal remedy application if he wishes to. Mr Pappas however may withdraw his application if he wishes.

[13] In the circumstances it is in my view appropriate for this matter to be dealt with in the first instance by a further conference and the parties will be contacted in due course as to their availability.

COMMISSIONER

Appearances:

Mr Andrew Harry Pappas on this own behalf

Attendance not required for the Respondent

Hearing details:

2015.

Perth:

December 12.

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