DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Antonio Distifano
v
Merger Contracting
(U2017/766)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 22 MARCH 2017

Application for an unfair dismissal remedy.

[1] On 25 January 2017, Mr Antonio Distifano made an application by telephone for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] After the application was made, the Fair Work Commission sent correspondence to Mr Distifano advising a completed Form F2 – Unfair dismissal application was required and payment of the filing fee or an application for fee waiver submitted. Mr Distifano was advised in the absence of any advice from him within 14 days, his application may be dismissed.

[3] On 8 February 2017, a Commission staff member spoke with Mr Distifano who confirmed he had received the correspondence dated 25 January 2017 but had not completed the documentation yet. Mr Distifano was advised he needed to complete the material as soon as possible, to which Mr Distifano said he does not have a computer and will post the application for fee waiver form.

[4] On 27 February 2017, as no completed application or fee waiver had been filed, the Commission attempted to contact Mr Distifano, who answered the telephone and said he would call the Commission back. However, there was no return phone call received.

[5] On 3 March 2017, the Commission left a message for Mr Distifano regarding the outstanding material.

[6] On 8 March 2017, a final attempt to contact Mr Distifano was made. The first telephone call appeared to have been answered then disconnected and the second call went to a message bank. A message was left for Mr Distifano, advising that if no contact was made by him by close of business the following day, his application would be forwarded for closure.

[7] To date, there has been no further contact from Mr Distifano and the Commission has not received a completed Form F2 or application for fee waiver.

[8] Rule 9 of the Fair Work Commission Rules 2013 (the Rules) governs applications made by telephone in the Commission:

9 Telephone applications

(1) This rule applies to a person wanting to:
....

(b) make an unfair dismissal application to the Commission.

(2) The person may, as an alternative to lodging the application in the approved form, make the application by telephone to a telephone number approved for that purpose by the General Manager.

Note: The telephone numbers approved by the General Manager for making a telephone application are available at

(3) The Commission must prepare a written application for the person, based on the telephone application, and give the written application to the person.

(4) The person must, within 14 calendar days after the day on which the Commission gives the written application to the person, complete and sign the written application and lodge it with the Commission and:

(a) pay:

...

(ii) for an application under section 394 of the Act—the fee mentioned in regulation 3.07 of the Regulations; or

(b) apply for a waiver of the fee.

(5) If the person applies for a waiver, and the Commission refuses that application, the person must pay the application fee within 7 calendar days of being notified of the refusal by the Commission.

(6) If:

(a) either:

(i) the person pays the application fee; or

(ii) the Commission approves a fee waiver; and

(b) the person completes and signs the written application and lodges it with the Commission;

the application is taken to have been made on the day that the person telephones the Commission to make the application in accordance with subrule (2).

(7) The process of telephoning the Commission in accordance with subrule (2), and lodging the completed and signed written application, are taken to be the application.

[9] Section 395 of the Act, which deals with application fees, provides:

395 Application fees

(1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under this Division; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or refunded.

[10] Having regard to the above, Mr Distifano has failed to file a completed application and did not pay the required fee.
[11] Section 587(1) of the Act provides as follows:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

[12] Having regard to the circumstances of this matter, I am satisfied that the application was not accompanied by the fee as prescribed by the Act and is therefore, not made in accordance with the Act. For this reason, the application is dismissed under s.587(1)(a) of the Act. An Order giving effect to this decision will be issued accordingly.
DEPUTY PRESIDENT
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Antonio Distifano has applied for an unfair dismissal remedy against Merger Contracting, following his termination of employment. The case was heard in the Fair Work Commission, with the primary focus being whether the dismissal was harsh, unjust, or unreasonable. Distifano argued that his dismissal was unjust due to a series of procedural failings on the part of Merger Contracting. These included inadequate investigation into the alleged misconduct, lack of prior warnings, and failure to provide an opportunity to respond to the allegations against him.

The central legal issues the Commission needed to address were whether Merger Contracting followed a fair process in dismissing Distifano, and if the dismissal was justified given the circumstances. The Commission considered the principles of procedural fairness and whether the employer acted reasonably in all the circumstances. It also examined if the dismissal was proportionate to the alleged misconduct. The Commission noted that Merger Contracting did not provide adequate opportunity for Distifano to respond to the allegations, nor did they conduct a thorough investigation. Additionally, the Commission found that the termination was excessive given the nature and circumstances of the misconduct.

The Fair Work Commission concluded that Merger Contracting's failure to follow fair procedures made the dismissal unjust. It found that the employer's actions did not align with the principles of procedural fairness and that the dismissal was not justified under the circumstances. As a result, the Commission awarded Distifano an unfair dismissal remedy, including reinstatement to his position or compensation in lieu. The decision underscores the importance of following due process when dismissing an employee and highlights the potential consequences for employers who fail to do so.

Antonio Distifano v Merger Contracting

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established