Veer Rughoobin v Gosnells Golf Club

[2016] FWC 3028

[2016] FWC 3028

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Veer Rughoobin
v
Gosnells Golf Club
(U2016/308)

COMMISSIONER RYAN MELBOURNE, 17 MAY 2016

Application for relief from unfair dismissal - s.399A application to dismiss.

[1] On 22 January 2016, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for remedy for unfair dismissal was lodged by Mr Veer Rughoobin (the Applicant). The Applicant’s employment had been terminated by Gosnells Gold Club (the Respondent) on 3 January 2016.

[2] The matter was listed for conciliation on 8 March 2016, however it did not proceed as the Applicant was overseas and did not answer his telephone.

[3] Consequently, directions were issued and the matter was listed for conciliation and arbitration in Perth on 14 April 2016.

[4] The Applicant was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by 28 March 2016.

[5] The Applicant failed to comply with this direction.

[6] On 1 April 2016 my Associate telephoned the Applicant to seek an explanation for the Applicant’s non-compliance. In that conversation the Applicant explained he had been overseas due to the death of family members and consequently had not received the directions and had been unaware of the matter being listed in Perth for 14 April 2016.

[7] On 4 April 2016 my Associate followed up this telephone call with an email to the Applicant asking him to advise when he would be in a position to provide his material in support of his application.

[8] The Applicant did not respond to that email.

[9] Following enquiries from the Respondent’s representative, Mr Steve Heathcote, as to the status of the application, Mr Heathcote was advised on 8 April 2016 that I intended dealing with this application by conciliation and arbitration on 14 April 2016.

[10] On 8 April 2016 my Associate contacted the Applicant by telephone who confirmed that he would be in attendance at the Fair Work Commission on 14 April 2016.

[11] The Applicant failed to attend the conciliation listed for 9:00am on 14 April 2016. When telephoned he advised that he had been unwell and could not attend. He shortly afterwards emailed my chambers advising that he had not been feeling well due to his tragic family loss and asked for another chance to meet his requirements.

[12] Mr Heathcote wrote to my chambers on 14 April suggesting that any further attempts to conciliate this matter would be pointless, given the Applicant’s non attendance at two conciliations to date, and that the matter be subject to further directions/programming. Mr Heathcote also indicating that he had instructions that, if the Applicant continued to fail to give attention to progressing his application, the Respondent will seek an order that his application be dismissed.

[13] A telephone Mention was listed for 22 April 2016. Mr Heathcote and the Applicant were in attendance by telephone. During those proceedings I explained very clearly to the Applicant that if he wanted to pursue his application, he had only one further opportunity to do so. I issued written directions following the conclusion of those proceedings which gave the Applicant to 6 May 2016 to file his required documentation.

[14] The Applicant did not comply with that direction.

[15] On 9 May 2016, the Respondent filed an application pursuant to s.399A of the Act, which was copied to the Applicant.

[16] On 9 May 2016 the Applicant was sent correspondence informing him of the Respondent’s s.399A application. The Applicant was directed to file submissions and other documentary material in respect of the Respondent’s s.399A application by close of business, 13 May 2016. The Applicant was advised that if he failed to comply with the direction, the application would be dismissed.

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

[18] 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.

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

[20] As the Applicant did not file any material in opposition to the application to dismiss, I have decided to determine the application on the papers.

[21] After considering all the material before me, I have decided to dismiss the Applicant’s application for remedy for unfair dismissal pursuant to s.399A of the Act. I am satisfied that the Applicant failed to comply with a direction of the Commission relating to the application. An order giving effect to this decision will be issued separately.

COMMISSIONER

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