Anthony Codianni v Twin City Trucks Centre Pty Ltd

[2022] FWC 2126

[2022] FWC 2126

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Anthony Codianni
v

Twin City Trucks Centre Pty Ltd

(U2022/5252)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 17 AUGUST 2022

Application for an unfair dismissal remedy – s.399A application to dismiss – application dismissed.

1. This is an edited version of my decision delivered ex tempore and recorded in transcript on 5 August 2022.

1. By his application lodged in the Commission on 10 May 2022 the applicant, Mr Anthony Codianni, applied for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act) in which he alleged that his dismissal by the respondent, Twin City Trucks Centre Pty Ltd, was unfair. The circumstances of the applicant’s dismissal from his employment appear to be that at the time of his dismissal there was an operative health order made by the Victorian Health Minister, the effect of which was to prohibit certain employers, including the respondent, from allowing workers to attend for work to physically perform work unless they were vaccinated, fully vaccinated, or alternatively had a medical contraindication, the effect of which would be to permit the respondent to allow such a worker to continue working at the workplace, although not vaccinated.

1. To ready the unfair dismissal remedy application for hearing, I issued on 17 June 2022 a number of directions. One of the directions required the applicant to file in the Commission and serve on the respondent an outline of submissions, any statement(s) of evidence and any documentary material(s) on which he intends to rely in support of his application for an unfair dismissal remedy, and that he do so by 5:00pm on 8 July 2022. The time for compliance for that direction passed and the applicant did not file or serve any of the material required by the directions.

1. On or about 13 July 2022 my Associate called the applicant on the primary telephone number set out in the application. The applicant did not answer the call and the call was not redirected to any facility which would allow leaving a voicemail message. A further attempt was made by my Associate on 14 July 2022 to the same number, and again the call was not answered, and it was not possible to leave a voicemail message.

1. On 15 July 2022 at my direction, my Associate sent an email to the applicant noting that he had not complied with the directions, and indicated that he should file his material as soon as possible, but by no later than 5:00pm on 19 July 2022. The email also advised the applicant that if he no longer wished to proceed with his application, he could withdraw the application by filing a notice of discontinuance or by telling us he no longer wishes to proceed with his application by reply email or by calling my chambers. Each of the above-mentioned methods by which discontinuance can be notified are permitted by the rules of the Commission. The amended date for compliance with the directions passed without the applicant filing or serving the required materials or any materials.

1. On or about 22 July 2022 my Associate again called the applicant’s primary telephone number as appearing in the application with the same result as earlier indicated. My Associate called the secondary number which appears in the application on the same day. There was no answer, but the call was diverted to a voicemail message for a person identifying as Tanya. My Associate left a voicemail message requesting that a call be returned in connection with the unfair dismissal remedy application. No telephone call was received, and no contact has been made to my chambers by the applicant or anyone on the applicant’s behalf. The applicant has not provided any explanation for his failure to comply with the direction made on 17 June 2022 or with the direction as amended advised to him by email on 15 July 2022. I am satisfied that the applicant has failed to comply with those directions, and that he has unreasonably done so in circumstances where he has provided no explanation for his failure and has made no inquiry nor any contact with my chambers about his application or the directions. He has made no contact with the respondent.

1. On or about 25 July 2022 the respondent made an application pursuant to s 399A(2) of the Act for dismissal of the applicant’s unfair dismissal remedy application by reason of his unreasonable failure to comply with the earlier mentioned directions. The applicant was served with a copy of the application.

1. On 26 July 2022 I issued further directions in connection with the respondent’s s 399A application which relevantly required the applicant to file any material in reply to the respondent’s materials filed in support of its application by no later than 5:00pm on 4 August 2022. The applicant was also notified that that application would be dealt with in a hearing scheduled for 10:00am on 5 August 2022. The applicant did not comply with these directions and has not provided an explanation for his failure to do so. I am satisfied that those directions are directions that related to the applicant’s application and that his failure to comply with them was in the circumstances unreasonable.

1. The applicant was notified of the hearing scheduled for 5 August 2022 and was required to attend. He failed to attend the hearing. Before the commencement of the hearing my Associate endeavoured to make contact with the applicant without success. I am satisfied the applicant failed unreasonably to attend the hearing which relates to his substantive application on 5 August 2022.

1. Section 399A provides the Commission with a discretion to dismiss an unfair dismissal remedy application on application by an employer, which the respondent has activated. The discretion is enlivened if the Commission is satisfied that the applicant has unreasonably failed relevantly to comply with one or more directions or orders made by the Commission in relation to his application, and/or has failed to attend a hearing or a conference conducted by the Commission in relation to his application.

1. As the chronology which I have just outlined aptly demonstrates, the applicant has failed on three occasions to comply with directions of the Commission and failed to attend a hearing held by the Commission. He has done so in the absence of any explanation or any contact with my chambers or the respondent, and so he has unreasonably failed to comply or attend on each occasion.

1. Although the power of the Commission to dismiss under s 399A should generally be exercised with caution it seems to me plain that the applicant’s repeated failure to comply with directions unreasonably, and his unreasonable failure to attend the hearing on 5 August 2022 justify the Commission exercising its discretion in favour of the respondent.

1. There are further discretionary considerations which weigh in favour of the respondent in its application. Relevantly on the material as filed, that is the application and the employer response to the application, it appears that the applicant’s case on the merits is very weak. The respondent was prohibited by an operative health order from allowing the applicant to attend physically for work. It appears that the applicant was required as part of his role to physically attend for work, and although the applicant suggests that there may be medical reasons why he has not been vaccinated, or at least was not vaccinated at the time of his dismissal, he has not provided any certification of a medical contraindication which would relieve the employer of the obligation to prohibit the applicant from attending work. It seems in those circumstances that the respondent’s defence to the application is very strong.

1. There are no matters of which I am aware which would weigh against the exercise of my discretion in favour of the respondent. Taking all of those considerations into account I am satisfied that it is appropriate that I exercise my discretion under s 399A to dismiss the application. I order pursuant to s 399A(1) that the application made by Mr Anthony Codianni in U2022/5252 be dismissed.

1. An order dismissing the application was issued on 5 August 2022 in PR744546.

DEPUTY PRESIDENT

Appearances:

No appearance for the applicant
Mr R Martin on behalf of the respondent

Hearing details:

2022
Melbourne (via video)
5 August

Printed by authority of the Commonwealth Government Printer

<PR744677>