Mr Damon Henry v Casinos Austria International T/A Pullman Reef Hotel Casino

[2018] FWC 1321

[2018] FWC 1321

FAIR WORK COMMISSION

DECISION

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

Mr Damon Henry
v
Casinos Austria International T/A Pullman Reef Hotel Casino
(U2017/9775)

COMMISSIONER SIMPSON BRISBANE, 8 MARCH 2018

Application for an unfair dismissal remedy.

[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (the Act) by Mr Damon Henry who alleges that the termination of his employment with Casinos Austria International T/A Pullman Reef Hotel Casino (‘the Reef Hotel Casino’) was unfair. The application was lodged in Brisbane on 8 September 2017.

[2] The matter was listed for Conciliation, by Telephone before a Fair Work Commission Conciliator at 11:15am on Monday 23 October 2017. The representative for the Reef Hotel Casino named in the application, Mr Andrew Costello, advised he would be unavailable on this date and the Conciliation was relisted for 3 November 2017.

[3] The Reef Hotel Casino submitted a Form F3 – Employer Response to Unfair Dismissal Application on 31 October 2017, attaching the letter of termination sent to Mr Henry and The Reef Hotel Casino’s Drug and Alcohol Policy of November 2017.

[4] The Conciliation did not proceed on 3 November 2017, due to the unavailability of Mr Henry. The Conciliator made a file note indicating that she had spoken with Mr Henry’s wife, who advised that Mr Henry’s brother died the previous day and that Mr Henry was out of the country, and therefore would be unable to respond until the following week.

[5] The matter was then relisted for Conciliation on 29 November 2017 at 11.15am.

[6] On 24 November, the Commission attempted to contact Mr Henry by telephone and left a voicemail requesting he return the call to confirm his number for the Conciliation. A formal letter was also emailed that day to Mr Henry for the same purpose.

[7] Again, the Conciliation on 29 November 2017 did not proceed due to the unavailability of Mr Henry. The Conciliator’s file note noted that the Reef Hotel Casino’s representatives attended but were not amenable to attending a further conference. The matter was subsequently referred to me for arbitration.

[8] The matter was listed for a telephone mention and directions on 20 December 2017 at 1.00pm. Again, Mr Henry did not attend despite several attempts to reach him on the contact numbers provided, and a voicemail requesting his urgent response was left on his mobile phone.

[9] In light of this, I directed my Associate to write to Mr Henry, copied to the Reef Hotel Casino’s representative Mr David D’Arcy, to request an explanation be provided by 5 January 2017 and to advise that if no response were received, the Commission may dismiss the application under s.587 of the Act, for want of prosecution.

[10] No response or explanation from Mr Henry has been received by the Commission as at 5 March 2018.

Consideration

[11] In the circumstances it is appropriate for me to consider whether to exercise my discretion to dismiss the application for want of prosecution.

[12] The Full Bench of Fair Work Commission in Sayer v Melsteel Pty Ltd 1considered that in a case where an Applicant has failed to attend at a Hearing to prosecute the matter it would be open to the Fair Work Commission to consider exercising the power of the Tribunal under section 587(1). Sayer further considers that it would not be inconsistent with s. 587(1) to dismiss the application without examining the merits.

[13] At the three occasions upon which this matter was listed, Mr Henry did not attend nor offer any reason for his non-attendance. The only explanation given was from his wife, following his non-attendance at the first Conciliation listed, who suggested he would be available to respond the following week. However, no response was forthcoming and the subsequent listings, respectively almost four and seven weeks later, were also ignored, as was the correspondence sent on 20 December – some three and a half months after the application was made. It is clear that Mr Henry has been given a reasonable opportunity by the Commission to make himself available to prosecute his claim.

[14] I do not consider Mr Henry was still unavailable or incapacitated due to the reasons suggested by his wife, at the later listings in November and December, or to such an extent he was unable to respond at all by 5 January 2018.

[15] I adopt the approach of the Full Bench in Sayer in this matter. The history of this matter as outlined above make it clear, in my view, that this matter should be dismissed pursuant to s.587 for the reasons discussed above. Accordingly the matter is dismissed.

COMMISSIONER

<PR600880>

 1   [2011] FWAFB 7498.

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