Fair Work Act 2009_

s.394 - Application for unfair dismissal remedy

Application for relief from unfair dismissal - application dismissed pursuant to section 399A of the Act.

[1] On 10 November 2015, Mr Michael DiAngelo made an application for unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). Mr DiAngelo's employment had been terminated by Auto Classic on 23 October 2015.

[2] The matter was listed for conciliation on 23 December 2015 however it could not take place as Mr DiAngelo refused to participate. Consequently, directions were issued by Her Honour Senior Deputy President Drake on 19 January 2016, and the matter was listed for hearing in Perth on 23 March 2016.

[3] Mr DiAngelo was directed to file an outline of submissions and any evidence he wished to rely on by 5 PM on 23 February 2016.

[4] Mr DiAngelo did not comply with this direction. My chambers made telephone contact with Ms Alley DiAngelo, the Applicant's mother, on 26 February 2016, noting the non-compliance with Directions. The Notice of Listing and 19 January 2016 Directions were resent to the Applicant.

[5] Further written correspondence was sent by my chambers to the Applicant on 8 March 2016, seeking the urgent filing of material and/or an indication as to when submissions would be filed.

[6] No correspondence was received from Mr DiAngelo in response to these requests.

[7] On 11 March 2016, the Respondent then filed an application to dismiss Mr DiAngelo's unfair dismissal application pursuant to s.399A of the Act. On 15 March 2016 a letter was sent by my Associate to Mr DiAngelo informing him of the Respondent's section 399A application. Mr DiAngelo was directed to file submissions and other documentary material in respect of Auto Classic's application by close of business on 25 March 2016. Mr DiAngelo was advised that if he failed to comply with this direction, his application may be dismissed.

[8] Mr DiAngelo did not file any material with the Commission. Ms DiAngelo contacted the Commission by telephone to advise that her son no longer wished to pursue his unfair dismissal application. A Notice of Discontinuance was emailed to the Applicant for this purpose, however a completed discontinuance has not been received by the Commission since.

[9] 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 power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[10] I am satisfied that Auto Classic's objection filed on 11 March 2016 is an application to have the matter dismissed for Mr DiAngelo's failure to comply with a direction of the Commission.

[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 Mr DiAngelo did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[13] Mr DiAngelo has provided no explanation for his failure to comply with the directions of the Commission. I find this failure to be unreasonable.

[14] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to the many attempts by the Commission progress his application. Indeed it appears, from the advice from the Applicant's mother and representative in these proceedings on 15 March 2016, that Mr DiAngelo does not intend to pursue his application for unfair dismissal remedy. In those circumstances, I will exercise my discretion and dismiss Mr DiAngelo's application. An order giving effect to this decision will be issued in conjunction with this decision.

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