David Szymansky v The Trustee for Di Giandomenico Family Trust

[2020] FWC 2321

[2020] FWC 2321

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Szymansky
v
The Trustee for Di Giandomenico Family Trust
(U2020/1113)

COMMISSIONER BISSETT MELBOURNE, 5 MAY 2020

Application for an unfair dismissal remedy – application dismissed under s.587 at the Commissioner’s initiative.

[1] On 31 January 2020 Mr David Szymansky made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant s.394 of the Fair Work Act 2009 (FW Act). Mr Szymansky said that his employment had been terminated by The Trustee for Di Giandomenico Family Trust (Respondent) on 24 January 2020.

[2] The matter was listed for conciliation by telephone on 5 and 10 March 2020 however conciliation could not take place due to the Respondent’s failure to attend. The application was therefore listed for arbitration.

[3] On 13 March 2020 Directions were issued by the Commission which required Mr Szymansky to file and serve his submissions, witness evidence and any relevant documentation with respect to his application by no later than noon on 6 April 2020. No submissions were received from Mr Szymansky by the due date.

[4] On 16 March 2020 Mr Szymansky’s representative, Unfair Dismissal Experts Pty Ltd, filed a Form F54 – Notice of Representative Ceasing to Act.

[5] On 6 April 2020 the Commission telephoned Mr Szymansky regarding his failure to file submissions. Mr Szymansky answered the call. He apologised and said he was not aware submissions were due. Mr Szymansky was advised that if he intends to pursue his application he will need to file submissions or make a request for an extension of time to file his submissions. Mr Szymansky was also advised that if he does not do this his application may be dismissed as a result of non-compliance. Mr Szymansky advised that he “will get onto it tonight and send an email”.

[6] On 7 April 2020 the Commission sent correspondence to Mr Szymansky’s nominated email address regarding his failure to file submissions by the required date. The correspondence required Mr Szymansky to advise the Commission when he intended to file submissions. This was also followed by a telephone call to Mr Szymansky. Mr Szymansky said that he would write to the Commission requesting an extension of time when he gets home. The Commission warned Mr Szymansky that if a request was not received by 12.00 pm the following day his application may progress to a Non-compliance hearing. Mr Szymansky said he understood.

[7] At 11.04 pm on 8 April 2020, the Commission attempted to contact Mr Szymansky on his nominated telephone number however the call went unanswered. A voicemail message was left advising Mr Szymansky that his matter was at risk of being listed for Non-compliance hearing if submissions were not received by 12 noon that day.

[8] As no submissions had been filed, the matter was listed for Non-compliance hearing before Commissioner Lee 9 April 2020. Both Mr Szymansky and the Respondent did not attend.

[9] On 9 April 2020 the Commission sent email correspondence to Mr Szymansky’s nominated email address regarding his failure to comply with Directions and his non-attendance at the Non-compliance hearing that day. Mr Szymansky was advised that the Commission was considering dismissing his application under s.587 of the FW Act for failure to comply with the Directions issued and his failure to participate in the Non-compliance hearing. The correspondence directed Mr Szymansky to provide submissions with reasons as to why the Commission should not dismiss his application by 4.00 pm on 16 April 2020. Mr Szymanski did not file any submissions by the due date.

[10] To date, Mr Szymanski has not filed any submissions with the Commission. In light of Mr Szymansky’s failure to respond, I am satisfied that he does not intend to pursue his s.394 application.

[11] Under s.587 of the FW Act the Commission may dismiss an application where there are grounds to do so.

[12] Section 587 of the FW Act states that:

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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[13] Section 587(3) of the FW Act allows the Commission to dismiss an application on the Commission’s own initiative. Section 587(1) of the FW Act does not operate to limit the grounds on which the Commission may dismiss a matter.

[14] Mr Szymansky has been provided with opportunities to respond to directions of the Commission. He has failed to do so on each of these occasions.

[15] After considering all of the circumstances I have decided that the application should be dismissed pursuant to s.587 of the FW Act because of a failure of Mr Szymansky to comply with the directions of the Commission.

[16] The application for unfair dismissal remedy is therefore dismissed. An order 1 to this effect will be issued shortly.

COMMISSIONER

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