Mr Ray Chandler v Helensvale Community Golf Club

[2017] FWC 2863

[2017] FWC 2863

FAIR WORK COMMISSION

DECISION

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

Mr Ray Chandler
v
Helensvale Community Golf Club
(U2017/428)

COMMISSIONER RIORDAN SYDNEY, 25 MAY 2017

Application for an unfair dismissal remedy.

[1] Mr Ray Chandler was employed by Helensvale Community Golf Club between January 2016 and 22 December 2016. I note that Mr Chandler also resigned on 26 October 2016.

[2] There was some dispute in relation to the other issues in the employment relationship, such as:

a) whether Mr Chandler was a casual employee;

b) whether Helensvale Golf Club was a small business with less than 15 employees; and

c) whether Mr Chandler’s termination was a case of genuine redundancy.

[3] The jurisdictional hearing was set down for 27 April 2017 in Brisbane by way of a Notice of Listing sent to the parties on 3 April 2017. Mr Chandler did not attend for the Hearing scheduled for 11am. My Associate attempted to call Mr Chandler on at least two occasions some 15 minutes apart, to ascertain whether he intended to attend the Fair Work Commission (FWC). Mr Chandler did not answer his phone. At no stage has Mr Chandler ever responded to the phone messages left by my Associate.

[4] On 23 May 2017, my Associate sent an email to Mr Chandler at 8.23am asking him to provide a satisfactory reason why he did not attend the Hearing on 27 April 2017. Mr Chandler responded saying that he “does not have a computer at home so checking emails is a long trip to the library. I do apologise for not attending but I will be there on the 27^th.”

[5] I note that the Notice of Listing sent to Mr Chandler on 3 April 2017 did not bounce back. I also note that Mr Chandler sent an email to Helensvale on 20 April 2017.

Relevant legislation

Section 587

Dismissing Applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note:          For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

   (a)  is frivolous or vexatious; or

   (b)  has no reasonable prospects of success.

(3) The FWC may dismiss an application:

   (a)  on its own initiative; or

   (b)  on application.

Conclusion

[6] I am satisfied that Mr Chandler was aware of the Hearing on 27 April 2017 and simply failed to attend. It is inappropriate and discourteous for a party to a Hearing to decide not to attend a Hearing without advising the FWC and/or the other party. Such actions, without a reasonable excuse, are grounds for a matter to be determined against the absent party.

[7] Also, taking into account all of the evidence and submissions that have been filed, I am of the view that Mr Chandler faced a difficult task in overcoming the jurisdictional objections raised by Helensvale.

[8] In accordance with section 587 of the Act, I have decided to dismiss Mr Chandler’s application for an unfair dismissal remedy.

[9] I so Order.

COMMISSIONER

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