Simon Joyce v Port Macquarie Golf Club

[2019] FWC 7513

[2019] FWC 7513

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Simon Joyce
v
Port Macquarie Golf Club
(U2019/10184)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 31 OCTOBER 2019

Application for an unfair dismissal remedy – s 399A application made by employer – unfair dismissal application dismissed.

[1] This decision concerns an application made by Port Macquarie Golf Club Ltd (Respondent) pursuant to s 399A of the Fair Work Act 2009 (Cth) (Act) to dismiss the application for unfair dismissal remedy made by its former employee, Mr Simon Joyce, pursuant to s 394 of the Act (Application).

Background

[2] Mr Joyce lodged his Application in the Fair Work Commission (Commission) on 11 September 2019.

[3] Mr Joyce failed to participate in a conciliation conference on 15 October 2019. The matter was then assigned to my chambers.

[4] The matter was listed for a directions hearing, by telephone, on 29 October 2019. There was no appearance by or on behalf of Mr Joyce at that directions hearing.

[5] An email in the following terms was sent to Mr Joyce after the directions hearing on 29 October 2019:

“Dear Mr Joyce

This matter was listed for directions by telephone before Deputy President Saunders at 2pm this afternoon pursuant to a Notice of Listing sent to the parties on 23 October 2019 at 3.48pm.

There was no appearance by or on behalf of you, the applicant, at the directions hearing. The respondent participated in the directions hearing.

This matter is now listed for a further directions hearing (by telephone) on Thursday, 31 October 2019 at 9.15am. It is necessary for both parties to participate in this directions hearing. If you do not participate in the directions hearing (by telephone) on Thursday, 31 October 2019 at 9.15am, your unfair dismissal application may be dismissed without further prior notice to you.”

[6] There was no appearance by or on behalf of Mr Joyce at the directions hearing on 31 October 2019. My Associate attempted, without success, to contact Mr Joyce at the commencement of the directions hearing on 31 October 2019.

Application for dismissal

[7] During the directions hearing on 31 October 2019, the Respondent made an application pursuant to s 399A of the Act for the Application to be dismissed on the basis that Mr Joyce had failed to attend the conciliation on 15 October 2019, the directions hearing on 29 October 2019, and the directions hearing on 31 October 2019.

[8] 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.

(2) The FWC may exercise its powers under subsection (1) on application by the employer.”

[9] 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. 1

[10] In light of the history of the proceedings outlined above, I am satisfied that:

• Mr Joyce has unreasonably failed to attend a conference conducted by the Commission (on 15 October 2019) in relation to the Application;

• Mr Joyce has unreasonably failed to attend two hearings held by the Commission (on 29 and 31 October 2019) in relation to his Application; and

• there has been an application by the employer in accordance with s.399A(2).

[11] In the circumstances, I exercise my discretion pursuant to s 399A(1)(a) of the Act to dismiss Mr Joyce’s unfair dismissal Application.

DEPUTY PRESIDENT

Appearances:

Mr Constable, Secretary, appeared for the Port Macquarie Golf Club Limited

Hearing details:

2019.

Newcastle:

31 October.

Printed by authority of the Commonwealth Government Printer

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 1   Allen v Army and Air Force Canteen Service [2013] FWC 9209 at [42]; Newbond v GM Holden Ltd[2015] FWC 6024 at [33]