Aldo Depasquale v Drake Australia Pty Ltd
[2023] FWC 2342
•13 SEPTEMBER 2023
| [2023] FWC 2342 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Aldo Depasquale
v
Drake Australia Pty Ltd
(U2023/5243)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 13 SEPTEMBER 2023 |
Application for an unfair dismissal remedy – application dismissed pursuant to s.399A of Fair Work Act 2009.
On 13 June 2023, Mr Aldo Depasquale (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment with Drake Australia Pty Ltd (the Respondent) was unfair. The Respondent raised two jurisdictional objections, those being that the Applicant was not dismissed and in the alternative that he had not met the minimum employment period (MEP).
The matter was listed for conciliation before a staff member of the Commission on 14 July 2023. On 14 July 2023, the Applicant made an adjournment request, which was granted. The matter was then re-listed for a staff conciliation on 25 July 2023. On 25 July 2023, the Applicant made another adjournment request, which was refused by the Commission. Following the refusal of his adjournment request, the Applicant failed to attend the staff conciliation on 25 July 2023.
The matter was then allocated to my Chambers on 31 July 2023 following which, directions were issued to the parties by my Chambers on 1 August 2023 setting down a timetable for the filing of material by both parties. The directions issued to the parties on 1 August 2023 relevantly included the following;
“……………
SUBMISSIONS AND WITNESS STATEMENTS
[3] The submissions must include all relevant facts, dates and incidents to support all claims made.
[4] The witness statements are required to outline the evidence of each witness that the party intends to call at the Determination Conference/Hearing and are to be provided in the form of a signed statement. All documents referred to in the statements are required to be attached as an annexure to that statement and numbered accordingly.
[5] Please note that witness statements are designed to take the place of evidence-in-chief.
……………………….
NON-COMPLIANCE WITH THESE DIRECTIONS
[8] The Deputy President will not accept material that is filed after the expiry of a timeframe unless an extension has been sought and only if granted by the Deputy President prior to the expiry of that timeframe.
[9] Requests for an extension of time must be made to Chambers in writing in a timely manner and specify substantial grounds. Parties must not assume an extension will be granted.
……………….”
The Respondent filed its materials in relation to its jurisdictional objections in accordance with directions of the Commission. The Applicant then failed to file his material on or by close of business 5 September 2023 as required by the directions. Correspondence was then sent by my Chambers to the Applicant on the morning of 6 September 2023 noting that he had failed to file his material as required by the directions and that unless this material was filed by close of business on 6 September 2023 a non-compliance hearing would be listed to which he would be required to attend. The Applicant did not respond to the email sent to him on 6 September 2023 or file any material.
The matter was then listed for an on-line non-compliance hearing at 9.00am on 8 September 2023. Prior to commencement of the hearing my Associate called the Applicant. The Applicant answered and my Associate sought confirmation from him as to whether he had access to the Teams link for the non-compliance hearing scheduled to commence at 9.00am. The Applicant indicated that he did not have the link and my Associate then advised the Applicant that she would add him to the hearing by telephone instead. My Associate then attempted to add the Applicant to the non-compliance hearing by telephone, however the Applicant did not answer the calls made by my Associate or attend the non-compliance hearing. The non-compliance hearing proceeded and was attended by Mr Parncutt, General Counsel for the Respondent. Mr Parncutt made an oral application at the non-compliance hearing that the Applicant’s unfair dismissal application be dismissed pursuant to s.399A(1) of the Act.
Correspondence was sent by my Chambers on 8 September 2023 to the Applicant following the non-compliance hearing advising him that the Respondent had made an application pursuant to s 399A(2) of the Act that his application for an unfair dismissal remedy be dismissed pursuant to s 399A(1) of the Act. Further, the Applicant was advised that separately to the s 399A application, I was also considering the dismissal of his application pursuant to s 587 of the Act. The Applicant was invited to provide submissions by close of business on Tuesday, 12 September 2023 as to why his application should not be dismissed. The Applicant was also advised that should he seek to be heard in relation to the s 399A application or the potential dismissal of his application under s 587 he should advise my Chambers. Otherwise, the matter would be dealt with on the papers. No submissions were filed by the Applicant in response to the correspondence sent to him on 8 September 2023.
Consideration
Turning now to whether the application should be dismissed, s 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.
…
(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.”
Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act. As the Applicant did not file any material in opposition to the application to dismiss his application for an unfair dismissal remedy by the close of business on Tuesday, 12 September 2023, I will determine the application on the papers.
The Applicant has demonstrated a pattern of non-compliance with directions of the Commission. He has done so by failing to attend a number of conferences/hearings listed by the Commission to which he was required to attend, those being the conciliation conference on 25 July 2023, the mention/conference listed for 8 August 2023 and the non-compliance hearing listed for 8 September 2023. Furthermore, he failed to file his materials by 5 September 2023 as required by the above-referred directions. No extension of time has been sought by the Applicant beyond the adjournment requests made in respect of the initial staff conciliation conference. Nor has he provided an explanation for his persistent non-compliance despite being afforded an opportunity to do so.
In the circumstances I have decided to grant the Respondent’s application under s.399A(1), and the Applicants’ unfair dismissal remedy application is dismissed. An Order giving effect to this decision will be issued with this decision.
DEPUTY PRESIDENT
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