Mr Simon Carey v Rainbow Beach Hotel

[2016] FWC 1847

[2016] FWC 1847

FAIR WORK COMMISSION

DECISION

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

Mr Simon Carey
v
Rainbow Beach Hotel
(U2015/9850)

COMMISSIONER BOOTH BRISBANE, 6 APRIL 2016

Termination of employment - s.399A Application to dismiss made by Employer.

[1] On 31 July 2015, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal was lodged by Mr Simon Carey (the Applicant). The Applicant’s employment had been terminated by Rainbow Beach Hotel (the Respondent) on 26 July 2015.

[2] Directions by telephone was listed for 11 February 2015 whereby both the Applicant and Respondent appeared. Consequently, it was decided at the Directions that a further Directions by telephone would be convened and a date was agreed upon by the parties. A notice of listing was sent to the parties by email on 17 February 2016 and by post on 18 February 2016.

[3] The Further Directions by telephone was convened on 24 February 2016, while the Respondent was waiting on the phone a number of attempts were made to telephone the Applicant as well attempts by email. The Applicant failed to appear.

[4] In the absence of the Applicant, correspondence was posted and emailed to the Applicant on 4 March 2016 requesting that he provide the Fair Work Commission (the Commission) with an explanation as to his failure to attend the Further Directions by telephone. He was advised that a response as to whether he intended to proceed with his application was required by 18 March 2016. He was advised that failure to comply with this direction may result in the Employer applying to have the application dismissed.

[5] The Applicant did not file any response with the Commission.

[6] On 23 March 2016, the Respondent filed an objection to the application and sought the dismissal of the Applicant’s application under s.399A. The Respondent based their objection on grounds which include:

• failure to attend the Further Directions by telephone; and



• failure to respond to the Commission’s letter dated 4 March 2016.

[7] The Applicant was sent a copy of the Respondent’s objection and was requested to provide a response by 30 March 2016.

[8] The Applicant did not file any material with the Commission.

[9] 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.

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] Taking into account the provisions of s.399A and specifically s.399A(2), I am satisfied that the Respondent’s correspondence filed on 23 March 2016 is an application to have the matter dismissed for the Applicant’s failure to meet the provisions of ss.399A(1)(a) and (b).

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

[12] As the Applicant did not file any material in opposition to the application to dismiss and has failed to attend a hearing, I have decided to determine the application on the papers.

[13] After considering all the material, I have decided to dismiss the Applicant’s application for remedy from unfair dismissal pursuant to s.399A(1)(a) and (b) of the Act. An order giving effect to this decision will be issued today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR578296>