Mr Tarrant Mckechnie v SLM Operating Pty Ltd T/A Park House Food and Liquor

[2018] FWC 3558

[2018] FWC 3558

The attached document replaces the document previously issued with the above code on 26 June 2018.

There was an error in the paragraph numbering which has been corrected.

Associate to Deputy President Sams

27 June 2018

[2018] FWC 3558

FAIR WORK COMMISSION

DECISION

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

Mr Tarrant Mckechnie
v
SLM Operating Pty Ltd T/A Park House Food and Liquor
(U2017/12101)

DEPUTY PRESIDENT SAMS SYDNEY, 26 JUNE 2018

Application for an unfair dismissal remedy – allegations of serious misconduct – assault of patron at the hotel where the applicant worked – application lodged ‘out of time’ – respondent’s application to dismiss application pursuant to s 399A of the Act – failure to attend proceedings or comply with directions of the Commission despite express warnings – no relevant submissions in response – application dismissed.

BACKGROUND

[1] In October 2017, SLM Operating Pty Ltd t/a Park House Food and Liquor (the ‘respondent’) dismissed Mr Tarrant Mckechnie (the ‘applicant’) from his role as a Duty Manager at the Mona Vale Hotel; a position he had held since 21 June 2016. There is a dispute in respect to the date the applicant was dismissed. The applicant claims his dismissal took effect on 20 October 2017, whereas the respondent submits it took effect on 17 October 2017. On 13 November 2017, the applicant filed an unfair dismissal application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), seeking relief in the form of a written apology and having his ‘record cleared’. As is evident, on either version of the date of dismissal, his application was ‘out of time’ and would have required an extension of time to be granted by the Commission, pursuant to s 394(3) of the Act. As events unfolded, this became unnecessary.

[2] Shortly stated, the applicant was dismissed due to his involvement in an incident at the Mona Vale Hotel on 29 September 2017, in which he allegedly assaulted a patron, by grabbing him by the throat, holding him against the wall, throwing him to the ground and then punching him several times. Although the applicant was on annual leave at the time, he was socialising at the premises at the time of the incident and regularly does so when ‘off duty’. The respondent also claimed that another reason for the applicant’s dismissal was that attended work on 9 October 2017, when he was on sick leave, without notifying the respondent (during the investigation period into the incident).

[3] On 24 November 2018, the respondent filed a Form F3 – Employer’s Response. In its response, the respondent raised a jurisdictional objection to the application on the basis that it was filed outside of the 21 day time limit, pursuant to s 394(2)(a) of the Act. On 1 December 2017, the matter was listed for conciliation, before a Fair Work Commission Conciliator. Although a settlement of the matter appeared to have been reached, the applicant subsequently wrote to the Commission advising that he wished to renegotiate the terms of their agreement. As they were still in the ‘cooling off period’, (which applies to conciliations where one of the parties is unrepresented), the settlement agreement did not proceed. The applicant’s further offer was rejected by the respondent and the matter was subsequently referred to me for determination of the extension of time application.

[4] In accordance with my usual practice, I listed the matter for conference on 1 February 2018. The matter did not resolve at the conference, so it proceeded to a hearing at 10am on 27 March 2018 with directions issued. However, at 8.18am on the morning of the hearing, the applicant emailed my Chambers as follows:

‘I will not be able to attend the arranged hearing today due to illness, sorry for any inconvenience.’

My Chambers responded as follows:

‘Mr McKechnie – Deputy President Sams requires medical evidence from you certifying that you are unfit to attend the hearing today. The certificate must state that you are unfit to attend your hearing. A document which only states that you are unfit to attend work will not suffice. You must provide this evidence by no later than COB today. A failure to comply with this requirement may lead to your application being dismissed.

The hearing at 10am will proceed. Mr McKechnie, you are welcome to appear in the hearing via telephone. If you are able to appear by telephone, please let me know as soon as possible. If you do not appear, the Deputy President will hear from the respondent in respect to further programming of the matter and you will be advised accordingly.’

[5] The respondent’s representative attended the hearing at 10am that day. Mr P Ryan of the Australian Hotels Association appeared with Ms J Eastoe (also of the Australian Hotels Association) for the respondent. Mr Ryan submitted that should the applicant fail to file his material, the respondent would press an application, pursuant to ss 399A(1)(a) and (b) of the Act to dismiss his substantive application on the basis of the applicant failing to attend a hearing and failing to comply with directions of the Commission. In the alternative, the respondent sought to press its jurisdictional objection to the application. Mr Ryan led the respondent’s evidence during which I was shown CCTV footage of the incident. I then provided the applicant an opportunity to provide his response within 14 days after he had received the transcript of the proceedings of 27 March 2018.

[6] On 4 April 2018, I emailed the respondent (and copied the applicant) to advise Mr Ryan that the applicant had not provided any medical evidence explaining his absence at the hearing and also to enquire whether the respondent pressed its s 399A application. Mr Ryan advised that the respondent intended to do so, and would provide a more fulsome application by 6 April 2018.

[7] At approximately 11am on 6 April 2018, Mr Ryan filed the respondent’s s 399A application. Curiously, some four hours later, Ms Shayna Price, purportedly on behalf of Mr McKechnie, emailed my Chambers as follows:

‘On behalf of Tarrant Mckechnie please find attached his Medical Certificate regarding his absence at the hearing last Tuesday

Firstly he sends his sincere apologies for not being able to make it.

He is suffering an extreme case of depression starting a few days before the hearing/due to the upcoming hearing which has been continuing, unable to rarely get out of bed or leave the house and has only just managed to find enough strength to visit a local doctor nearby where he lives rather than his normal GP as he still can't travel far due to the fear and stress of going outside.

He sincerely hopes you take this into consideration and respectfully asks that another Hearing can be arranged which he is confident he will be able to attend.

If you have any questions please do not hesitate to contact him

Regards

Shayna Price on behalf of Tarrant Mckechnie’

[8] I will not set out the details of the medical certificate for privacy reasons. It is dated 6 April, 2018. However, I note that it failed to comply with my express instructions in several respects; it made no reference to whether the applicant was unfit to attend the hearing on 27 March 2018; nor did it even state that he was unfit to attend work. The highest the certificate went was that the applicant ‘reported’ to the doctor that he was suffering from a mental illness; he had not taken his medication; and that he ‘reports that he [is] really depressed and distressed and did not feel like going out n [sic] last 2 weeks’. The Doctor offered no prognosis. He simply recommended that he take his medication and see a psychologist for ongoing care.

[9] On 10 April 2018, the respondent reaffirmed that it sought a determination of its s 399A application. Mr Ryan pointed out that the medical certificate was filed two weeks late, and only shortly after the respondent lodged its s 399A application. Further, Mr Ryan submitted that on its face, the certificate did not provide the information required by the Commission as stated in the email of 27 March 2018. On that basis, I directed the applicant to file and serve any submissions in reply to the s 399A application by 4pm on 20 April 2017.

SUBMISSIONS

For the respondent

[10] Mr Ryan referred to my decision in Lozanoski v Hymix Australia Pty Ltd [2018] FWC 1528 at [12] where I said the ‘discretion of the Commission to dismiss an application under s 399A(1) of the Act is to be exercised by reference to an objective evaluation of the applicant's conduct and whether such conduct was unreasonable in the circumstances’; see also: Allen v Army and Air Force Canteen Service [2013] FWC 9209 at [42] and Newbond v GM Holden Ltd [2015) FWC 6024 at [33).

[11] Turning to the applicant’s conduct, Mr Ryan submitted he:

a) advised the Commission and the respondent of his non-attendance less than two hours prior to the commencement of the hearing, by no more than a one line email, without any supporting evidence;

b) failed to proffer that supporting medical evidence would be provided in due course; or that he had not had the opportunity to acquire supporting medical evidence at the time of sending that email;

c) failed to comply with the direction of the Commission to provide supporting medical evidence by close of business on 27 March 2018; that direction having been made by the Commission by email at 9:07am following the applicant’s email of 8:18am on the same date; and

d) failed to provide any medical evidence, or otherwise contact the other party or the Commission regarding the progress of his substantive application thereafter.

Given his conduct, Mr Ryan put that the applicant’s substantive application ought be dismissed, pursuant to s 399A of the Act.

For the applicant

[12] The applicant filed his response on 16 April 2018. Firstly, he submitted that he was not copied in on the s 399A application, so he was unaware it had been filed. The timing of him filing his medical certificate (4 hours after the s 399A application was filed) was unintentional. I note that the respondent’s s 399A application was emailed to the applicant to the same email address he has previously (and subsequently) used when engaging with the Commission.

[13] In respect of the medical certificate, the applicant said it clearly stated that he had another severe post traumatic depressive episode and explained why he could not attend the hearing that day and why he found it so difficult to see a medical specialist at the time and for some time afterwards. He referred to his ‘K10 assessment score’, which was ‘extremely high’. However, he gave no explanation of what a K10 assessment score is, or how it is calculated.

[14] The applicant also made several submissions in relation to his substantive application and the respondent’s jurisdictional objection. As I am not determining either of those matters at this point, I do not refer to them save for one exception; I will deal briefly with the applicant’s submissions in relation to the physical altercation. I note that the applicant has viewed the CCTV footage as I have. The footage speaks for itself.

[15] The applicant submitted that in fact it was he who was assaulted, not the patron. He had been ‘king hit’ as he was trying to get off the ground and been quite badly hurt as a result. He said if the incident is viewed from another camera angle, it shows he actually approached the patron calmly. The patron was naked at the time and screaming. He likened the situation to trying to manage someone under the influence of illicit substances who is threatening other patrons. The respondent had failed to control the escalating situation as there was no security, bar staff or managers in the vicinity. In essence, the applicant believed his response was reasonable and appropriate, even necessary.

[16] Having viewed the incident I consider that the applicant was wholly responsible for the rapid escalation of the incident. I accept the patron was being obnoxious; he had taken his pants off and was walking with his pants down and making quotation mark signals with both hands. The patron’s body language was aggressive at times. It appears to me that the applicant is using hyperbole when he says the patron was ‘screaming’ and was obviously under the influence of illicit substances. The applicant’s response was to rush at the patron, grab him by his throat with both hands (effectively strangling him) and hold him against a wall. A scuffle then ensued between the two and both landed blows. In my impression, it is the applicant who is the more aggressive participant; other patrons try to hold him back whereas the patron was mostly in a defensive position. When the patron walks away, the applicant was required to be held back repeatedly, yet he still follows him. The applicant clearly used an unreasonable amount of force against the patron when he should have just alerted security. After all, he was not even on duty at the time. That he takes no responsibility for the incident is telling.

CONSIDERATION

[17] In light of the above narrative, I have decided to dismiss this application on the grounds that the applicant failed to attend a hearing before the Commission in relation to his application (s 399A(1)(a)) and he failed to comply with the Commission’s direction of 27 March 2018 (s 399A(1)(c)). These are my reasons.

[18] The Commission’s power to dismiss an application are set out generally at s 587 of the Act and specifically in respect to unfair dismissal applications under s 399A. I set out both sections below:

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.

SECTION 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.

[19] The power to dismiss a substantive application should only be exercised cautiously; see: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at para [8]. This is so because it results in the extinguishment of a party’s application, which has been made in order to seek some form of relief, from a beneficial statutory provision. In other words, the application is dismissed before an applicant has had his/her ‘day in court’.

[20] In Viavattene v Health Care Australia [2013] FWCFB 2532, a Full Bench of the Commission said at para [39]:

‘[39] It is apparent from the decision subject to appeal that the Commissioner had regard to Sayer v Melsteel, and made her decision following an analysis of the respondent's uncontested evidence, noting that the respondent's sworn statements and submissions contained “substantial arguments in response to the Applicant's contentions”. There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended “to ensure that a ‘fair go all round’ is accorded to both the employer and employee concerned” (s.381).’ [endnotes omitted]

[21] The applicant continued to ignore the Commission’s directions and only decided to respond to directions late and then did not comply with the specific directions issued. His approach to properly prosecuting his case is dilatory and unacceptable. In my view, it is unfair and unreasonable that the respondent should be put to more time and cost in defending a matter which is not being properly prosecuted by the applicant. Having reviewed the CCTV footage of the incident which resulted in the applicant’s dismissal, I would conclude his prospects of success are remote.

[22] In the exercise of my discretion, I dismiss application U2017/12101, pursuant to s 587 and s 399A(1)(a) and (b) of the Act.

DEPUTY PRESIDENT

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