Daniel (Danny) Lawrence La Macchia v Wanneroo Mazda

[2019] FWC 4312

[2019] FWC 4312

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel (Danny) Lawrence La Macchia
v
Wanneroo Mazda
(U2019/4165)

DEPUTY PRESIDENT BINET PERTH, 20 JUNE 2019

Application for an unfair dismissal remedy – failure to attend a conference – application to dismiss pursuant to s.399A – application dismissed.

[1] On 11 April 2019, Mr Daniel Lawrence La Macchia (Mr La Macchia) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Wanneroo Mazda (Mazda).

[2] On 10 May 2019, Mazda filed a response to the Application which did not raise any jurisdictional objections to the Application.

[3] The matter was listed for a telephone conciliation with a FWC staff conciliator on 16 May 2019 but the conciliation could not take place as Mr La Macchia refused to participate.

[4] The Application was allocated to Deputy President Binet and on 29 May 2018, the parties were issued with a Notice of Listing directing them to attend a conference at noon on Tuesday, 4 June 2019.

[5] Mr Joe Savoldelli, of Mazda, appeared in person at the Fair Work Commission. Mr Ron Bellucci, Mazda’s representative appeared as well.

[6] Mr La Macchia failed to attend the Conference. My Associate contacted Mr La Macchia on his mobile phone who advised he was in Bali. He was offered the opportunity to participate in the conciliation by telephone and he refused to do so. Mr La Macchia was advised that if he failed to participate in the Conference Mazda may apply to have the matter dismissed.

[7] On 6 June 2019 Mazda applied to have the Application dismissed pursuant to section 399A of the FW Act (Dismissal Application).

[8] 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 another 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).

(1) The FWC may exercise its power under subsection (1) on application by the employer.

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

[9] Mazda submit that the Application should be dismissed because Mr La Macchia failed to comply with a direction to attend a Conference and failed to attend the Conference. They say that his Application is vexatious and without merit and that his refusal to participate in conciliation was intended to result in Mazda incurring unnecessary expense preparing for and attending at a hearing.

[10] On Thursday 6 June 2019, Mr La Macchia was invited to file submissions providing reasons why the FWC should not dismiss his application and evidence or other documentary material supporting those reasons. This material was to be provided to the FWC and Mazda by 4pm on Monday 10 June 2019.

[11] Mr La Macchia was also notified that if he did not comply with the directions and file submissions by this date, that his application for an unfair dismissal remedy could be dismissed.

[12] To date the FWC has not received any further communication from Mr La Macchia.

[13] The Explanatory Memorandum states the FWC may exercise its discretion to dismiss an application under this provision in situations which include the following:

Where an applicant fails to attend an FWC proceeding relating to the matter without providing prior advice and/or without any reasonable excuse for their failure to attend” 1

[14] On the application of Mazda and in the exercise of my discretion under section 399A of the FW Act, I have decided to dismiss the Application on the ground that Mr La Macchia unreasonably failed to comply with a direction issued by the FWC to attend a conference conducted by the FWC.

[15] Consequently, the Application is dismissed pursuant to section 399A(1)(a) and (b) of the FW Act.

[16] An Order (PR709571) giving effect to this decision will be issued separately.

DEPUTY PRESIDENT

<PR709570>

 1   Fair Work Amendment Bill 2012 (Cth), Explanatory Memorandum, page 36.

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