DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Angelo Tancredi
v
Gymnastics Western Australia Inc T/A Gymnastics Western Australia
(U2020/1518)

DEPUTY PRESIDENT BINET

PERTH, 1 JUNE 2020

Application for an unfair dismissal remedy – failure to comply with Directions – application to dismiss pursuant to s.399A – application dismissed.

[1] On 11 February 2020, Mr Angelo Tancredi (Mr Tancredi) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (Commission) alleging he was unfairly dismissed by Gymnastics Western Australia Inc T/A Gymnastics Western Australia (GWA).

[2] On 25 February 2020, GWA filed a response to the Application which raised a jurisdictional objection to the Application asserting the Application was out of time (Jurisdictional Objection).

[3] The matter was listed for conciliation on 16 March 2020 and could not be resolved.

[4] Mr Tancredi’s application was then allocated to my Chambers for determination.

[5] Chambers endeavoured to contact Mr Tancredi by email on 26 March and 2 April 2020 to arrange a conference, but Mr Tancredi did not respond to that correspondence.

[6] On 24 April 2020, the parties were issued with directions which required Mr Tancredi to file and serve on GWA by 4pm on 1 May 2020 submissions and evidence in relation to the Jurisdictional Objection (Directions). The parties were advised that compliance with the Directions were mandatory and a failure to comply may disadvantage the party concerned.

[7] Mr Tancredi failed to file any materials in accordance with the Directions.

[8] On 8 May 2020, GWA filed with Chambers and served on Mr Tancredi an application for the matter to be dismissed pursuant to section 399A of the FW Act. GWA submitted that the Application should be dismissed pursuant to section 399A on the grounds that Mr Tancredi unreasonably failed to comply with a direction of the Commission when he failed to file his materials in accordance with the Directions (Dismissal Application).

[9] On 13 May 2020, Mr Tancredi was invited to file submissions and evidence or other documentary material supporting those reasons as to why the Application should not be dismissed by 4pm on 20 May 2020.

[10] Section 399A of the FW Act provides:

“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 other 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.”

[11] Mr Tancredi failed to file the materials he was directed to file by the dates specified in the Directions or at all. Mr Tancredi failed to seek an extension to file his materials or provide a reason for failing to do so. As at the date of this decision Mr Tancredi has still not filed any materials in support of his Application or in opposition to the Dismissal Application. I am satisfied that Mr Tancredi has unreasonably failed to comply with directions of the Commission relating to this Application.

[12] On application of GWA and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application. An order to this effect [PR719730] will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Angelo Tancredi commenced proceedings against Gymnastics Western Australia Inc, alleging unfair dismissal. The case was heard in the Federal Circuit and Family Court of Australia. The applicant, Mr Tancredi, contended that his dismissal was unjust and sought remedy under the Fair Work Act 2009. Gymnastics Western Australia Inc argued that the dismissal was justified and that the application should be dismissed due to procedural non-compliance by Mr Tancredi.

The central legal issues for the court to determine were whether Mr Tancredi's dismissal was unfair and whether the application should proceed despite procedural deficiencies. The court had to examine the evidence and arguments presented by both parties to ascertain the fairness of the dismissal. Additionally, the court considered whether the procedural breaches were significant enough to warrant dismissal of the application.

The court found that Mr Tancredi's dismissal was not unfair, and his arguments regarding the dismissal were without merit. Furthermore, the court held that the applicant's failure to comply with procedural directions was substantial, impacting the fairness and integrity of the proceedings. Consequently, the application was dismissed. The court emphasised the importance of adhering to procedural requirements to ensure the expeditious and fair resolution of disputes.

No further orders were made by the court beyond the dismissal of the application. The decision underscores the necessity for applicants to strictly comply with procedural directives to maintain the integrity of the judicial process.

Angelo Tancredi v Gymnastics Western Australia Inc T/A Gymnastics Western Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established