Mr Graham Fowler v Perks Hotels Pty Ltd T/A New Whyalla Hotel Caffe Primo

[2013] FWC 8863

[2013] FWC 8863

The attached document replaces the document previously issued with the above code on 13 November 2013.

Paragraph numbering has been fixed.

Tara O’Connor

Associate to Commissioner Hampton

Dated 14 November 2013

[2013] FWC 8863

FAIR WORK COMMISSION

DECISION

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

Mr Graham Fowler
v
Perks Hotels Pty Ltd T/A New Whyalla Hotel - Caffe Primo
(U2013/12667)

COMMISSIONER HAMPTON ADELAIDE, 13 NOVEMBER 2013

Application for relief from unfair dismissal.

[1] On 19 August 2013, Mr Graham Fowler made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). Mr Fowler’s employment with Perks Hotels Pty Ltd T/A New Whyalla Hotel - Caffe Primo (the respondent) had concluded on 8 August 2013.

[2] The matter was listed for conciliation with a Fair Work Commission conciliator on 8 October 2013, however that process could not be conducted due to the non-participation of Mr Fowler. Consequently the matter was allocated to me for arbitration.

[3] A telephone directions conference was conducted by the Commission on 22 October 2013 and all parties were given appropriate notice. Neither Mr Fowler nor any representative on his behalf attended the conference or otherwise communicated a position to the Commission. The Australian Hotels Association SA Branch, on behalf of the respondent, subsequently filed and served an application pursuant to s.399A of the Act seeking the dismissal of the unfair dismissal application.

[4] On 31 October 2013, Mr Fowler was sent correspondence by the Commission confirming the respondent’s s.399A application and directing him to file submissions and/or any other documentary material in respect of the respondent’s application by close of business on 11 November 2013. Mr Fowler was expressly advised that if he failed to comply with these directions by that time, his unfair dismissal application would be dismissed without further notice or hearing.

[5] The applicant has not filed any material with the Commission or otherwise communicated any position.

[6] 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.

[7] Mr Fowler has been provided with a reasonable opportunity to advance his unfair dismissal application and has been given notice of the s.399A application and the intention of the Commission to deal with that matter in the absence of compliance with the directions issued on 31 October 2013. This is reasonable in the circumstances and has afforded procedural fairness to Mr Fowler.

[8] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. A hearing is not required in the present circumstances. Accordingly, as Mr Fowler did not file any material in opposition to the s.399A application to dismiss, I will determine the application on the papers.

[9] The s.399A application was made by the respondent employer. I am satisfied that Mr Fowler has unreasonably failed to attend a conference (the directions conference) conducted by the Commission. This satisfies the requirements of s.399A(1)(a) of the Act and I am satisfied that I should exercise my discretion in these circumstances to dismiss the unfair dismissal application.

[10] Accordingly, Mr Fowler’s unfair dismissal application is dismissed and I so order.

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