Sundesh Sharma v CR Cox and Associates Pty Ltd T/A CR Cox

[2015] FWC 2943

[2015] FWC 2943

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sundesh Sharma
v
CR Cox & Associates Pty Ltd T/A CR Cox
(U2014/12918)

COMMISSIONER WILLIAMS PERTH, 29 APRIL 2015

Termination of employment - s.399A application.

[1] This decision concerns an application for an unfair dismissal remedy made by Mr Sundesh Sharma (Mr Sharma or the applicant). The respondent is CR Cox and Associates Pty Ltd T/A CR Cox (the respondent).

Background

[2] Mr Sharma’s unfair dismissal remedy application was made on 30 September 2014. An original conciliation conference was held but the matter was not able to be resolved. Consequently the application was referred to the Commission for determination.

[3] In December 2014 directions were issued by the Commission requiring the parties to file materials for a hearing.

[4] By email on 4 January 2015 the applicant advised that his residential address had changed and any future communications should be through email only. This was confirmed to him in a reply email the following day.

[5] The parties provided their respective materials in accordance with the directions.

[6] On 20 January 2015 the Commission notified the parties by email of a notice of listing advising that the application would be heard on 9 March 2015.

[7] The parties were advised by email that the Commission proposed to conduct a second conciliation conference and the parties provided their available dates.

[8] The Commission issued a further notice of listing advising that a second conciliation conference would be convened by the Commission on 3 February 2015. The parties attended the conference on the nominated date however the matter was not resolved.

[9] On the date of the hearing on 9 March 2015 the respondent attended with three witnesses however there was no appearance by the applicant or anyone on his behalf.

[10] My associate rang the applicant immediately and spoke to him. He advised he was not aware of the listed date for hearing and he was not able to attend the hearing because he was currently in Geraldton.

[11] The Commission wrote to the applicant directing him to provide a written explanation for his non-attendance at the hearing.

[12] In response by email the applicant advised he was sorry for not attending the hearing but he was not in receipt of the email advising of the notice of listing.

[13] Subsequently the respondent filed an application under s.399A of the Fair Work Act 2009 on the basis that the applicant unreasonably failed to attend the hearing. This section is set out below.

“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.”

[14] The first element necessary for a section 399A application to succeed has been satisfied. The applicant has failed to attend a hearing held by the Commission.

[15] The remaining element to be considered is whether the applicant unreasonably failed to attend that hearing.

[16] The applicant has provided written submissions in response to the s.399A application made by the respondent.

[17] The applicant submits that he is in doubt as to how the matter was listed for 9 March 2015 when the outcome of the second conciliation conference which was held before this date was not known. The applicant says he made some assumptions about when the Commission would fix dates for the next hearing after the second conciliation conference and was also certain that he would receive an SMS notification in advance of any hearing in case an email was missed.

[18] The applicant repeats that he was not aware of the hearing for 9 March 2015 and advises that he has had complaints from some friends regarding not having replied to their emails. The applicant requests that he be able to continue with his application.

Consideration

[19] The reason the applicant did not attend the hearing, I accept, was that he was not aware that it was listed for 9 March 2015. I am satisfied though that the notice of listing was sent to the applicant’s correct email address in January 2015 and so he was properly notified of the date of the hearing. There are a number of possible explanations for this apparent contradiction ranging from a computer failure of some form at the applicant’s end to perhaps the applicant deleting the relevant email in error or possibly just overlooking it. Whatever caused the applicant to be unaware of the date of the hearing was however the applicant’s responsibility.

[20] The applicant’s failure to attend the hearing in this case was inconsistent with the fact that he has otherwise actively prosecuted his application and regularly interacted with the Commission to that end. Considering all of the circumstances because the applicant’s non attendance was not intentional it cannot be said that the applicant has unreasonably failed to attend the hearing.

[21] The Commission appreciates that regrettably the respondent has been put to unnecessary cost by the applicant in this instance and given the limited costs regime under the legislation there are constraints that may prevent the respondent recovering those spent costs.

[22] The s.399A application will be dismissed and an order to that effect will now be issued.

[23] The parties will be contacted in due course and advised of a further notice of listing for a hearing of the substantive application.

COMMISSIONER

Final written submissions:

Applicant, 2 April 2015

Respondent, 16 April 2015

Printed by authority of the Commonwealth Government Printer

<Price code A, PR566584>