Mr John Keohane v Coral Princess Cruises

[2015] FWC 4443

[2015] FWC 4443

FAIR WORK COMMISSION

DECISION

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

Mr John Keohane
v
Coral Princess Cruises
(U2015/7274)

VICE PRESIDENT CATANZARITI SYDNEY, 16 JULY 2015

Application for relief from unfair dismissal – application dismissed.

[1] On 1 May 2015, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal (the Application) was lodged by Mr John Keohane (the Applicant). The Applicant’s employment had been terminated by Coral Princess Cruises (the Respondent) on 13 April 2015.

[2] The matter was listed for a telephone conference before me at 4.30pm (ACST) on 15 June 2015. I contacted the Applicant to confirm timing and contact details on the morning of the conference. The Applicant replied and requested that the matter be moved to a different day as he was unavailable. The Applicant also provided a telephone number that he alleged was his mobile phone number in Thailand.

[3] I wrote to the Applicant on the morning of 16 June 2015 and suggested 17 June 2015 at 8.30am (ACST) as a suitable time to reschedule the conference. The Applicant replied and confirmed that it was a suitable time for him.

[4] On 16 June 2015 I dialled the number provided by the Applicant to ensure it was correct and found that the number was invalid and did not connect. I wrote to the Applicant confirming that the number was correct, including the country code. The Applicant replied and advised that the number was correct but would not work until the following day as he was still in Laos and would arrive back in Thailand in 15 hours.

[5] On 17 June 2015, I called the number again at the scheduled time of 8.30am (ACST) and it still did not connect. I emailed the Applicant advising of this and once again confirming that it was the correct number, noting that Thai mobile numbers usually start with 8 or 9 and the number he had provided did not. The Applicant replied saying that the number was correct and then suggested we try the number with an 8 or 9 at the front instead. All three versions of the number were dialled several times, however none of them connected.

[6] The Applicant was emailed in the afternoon of 17 June 2015 and directed to provide an explanation as to why the numbers provided by him were not able to be utilised for the conference and to provide an accurate number to enable me to contact him. The Applicant was advised that if he failed to comply with the direction in 7 days, consideration would be given to dismissing his application. No reply was received to this email.

[7] On 25 June 2015, I wrote to the Applicant noting his non-reply to the 17 June 2015 email and stated that in the absence of satisfactory comments from him within the next 7 days, I would proceed to dismiss his application without any further notice. No reply was received to this email.

[8] To date, no reply has been received to the 17 June 2015 or 25 June 2015 email that I issued to the Applicant. The Applicant did not file any further material with the Commission.

[9] Section 399A of the Act provides as follows:

(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.

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

[11] Having regard to s. 399A(1)(a) of the Act, I am satisfied that the Applicant has unreasonably failed to attend a conference conducted by the Commission.

[12] As the Applicant failed to attend two conferences scheduled by the Commission and failed to explain his absence despite two directions in writing to do so, I have decided to dismiss the Application for remedy from unfair dismissal pursuant to s.399A(1)(a) of the Act. I order accordingly.

ORDER

1. The Application lodged by the Applicant under s.394 of the Fair Work Act 2009 on 1 May 2015 is dismissed pursuant to s.399A (b) of the Fair Work Act 2009.

VICE PRESIDENT

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