Dylan Di Genova v Container Services Pty Ltd
[2024] FWC 571
•4 MARCH 2024
| [2024] FWC 571 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Dylan Di Genova
v
Container Services Pty Ltd
(U2023/12617)
| DEPUTY PRESIDENT BELL | MELBOURNE, 4 MARCH 2024 |
Application for an unfair dismissal remedy - s.399A and s.587 - application dismissed.
On 17 December 2023, Mr Dylan Di Genova (Applicant) made an application (the Application) to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleges he was unfairly dismissed by Container Services Pty Ltd (Respondent) on 6 December 2023. In his Form F2, Mr Di Genova provided an email address, which has been used by the Commission throughout the conduct of this matter, as has both the initial mobile number provided on the F2, and subsequent new mobile number for Mr Di Genova, once those details were communicated to Chambers.
On Tuesday 12 February 2020, I issued directions to the parties. The directions were sent to the Applicant by his nominated email address, as well as emailed to his representative, Employee Dismissals. Among other matters the directions required the Applicant’s attendance at a mention/conference scheduled for 9.30am AEDT on Monday 19 February 2024, in person at the Fair Work Commission in Melbourne. The directions email confirmed that the Applicant was required to attend the mention/conference, as did the notice of listing sent to the parties the same day. Both the email and notice of listing also required the parties to confirm their attendance and provide their respective participant details by midday AEDT Thursday 15 February 2024.
On Friday 16 February 2024, a further email was sent at 2:07pm AEDT to the Applicant by his nominated email address, noting we had not yet heard from the Applicant’s representative Employee Dismissals, and requesting ‘he personally confirm by reply email that he is attending (which is required) and whether or not he remains represented by Employee Dismissals.’ Multiple attempts were also made to contact the Applicant by the mobile number on his F2 the same afternoon – each attempt resulted in a ‘Busy’ message popping up on screen stating the person was busy and to try again later, with no ability to leave a voice message.
At 7:01pm AEDT on Friday 16 February 2024, the Applicant’s representative filed a Form F54 Notice of Representative Ceasing to Act by email to chambers, advising they had ceased to act for the Applicant. The Applicant was copied into this email. No explanation was given as to the lateness of the Notice, which ought to have been provided in circumstances where the next business day would be the first hearing of the matter before the Commission.
On 19 February 2024, the Applicant did not attend the scheduled mention hearing. No explanation was provided although, perhaps generously to the Applicant (who had been told clearly in email to attend), his failure to attend was triggered by the unhelpful and unexplained last-minute withdrawal of Employee Dismissals as his representative. While that may well have been a contributing factor, it is not an excuse.
The Respondent and its representative did attend, although the mention hearing proceeded only on a very limited basis given the absence of the Applicant.
During the mention hearing the Respondent made an oral application pursuant to s.399A of the Act, for the Applicant’s application to be dismissed, given the Applicant’s failure to attend the Mention/conference and comply with the Direction of the Commission to attend. I accepted the oral application, waiving compliance with the Fair Work Commission Rules 2013.
Following the Mention hearing the Applicant was sent an email from Chambers at 10:50am the same day advising him of the Respondent’s s.399A application, setting out s.399A and giving him an opportunity to respond. The email noted:
· That he had failed to attend attend the mention/conference on 19 February 2024, despite several attempts to contact him prior to the mention/conference via both email and on the mobile number provided to the Commission in his application.
· prior to the mention/conference, he was advised, on the Notice of Listing, in the directions email and a subsequent email, that he was required to attend the mention/conference.
· the Commission was unable to reach him on the mobile number provided on the day of the mention/conference, and had not received an explanation for his non-attendance.
The email also noted that the Commission may dismiss applications if it appears clear to the Commission that the Applicant has no intention to prosecute his or her claim pursuant to s.587 of the Act. The Applicant was directed to file with the Commission and serve on the respondent submissions, evidence or other documentary material in support, as to why the Commission should not dismiss his application. The Applicant was told “If you no longer wish to pursue your application for unfair dismissal and do not intend to address the directions above,” he should file a Notice of Discontinuance.
This material was required by no later than midday, Wednesday 21 February 2024. The email also cautioned that if the Commission did not receive a response, his case may be dismissed without further notice.
At 8:45pm that evening the Applicant emailed a response ‘Due to not working an no job my phone was cut off I was also evicted from my house sorry call me on [new mobile number provided]’. There are three points to note from this email: the first was that the Applicant’s email address was still current and was being checked; the second is a possible explanation as to why he had not previously answered telephone calls to him; and the third was that his personal circumstances warranted a grant of further time.
Given the brevity of the response, a further email was sent to the Applicant the following day. The main text of that email was as follows:
“Deputy President Bell has considered your email below and recognises the difficult personal circumstances you refer to.
You did not attend a compulsory hearing on Monday. It is not clear to the Deputy President if the reason you did not attend is because you do not want to continue with your unfair dismissal claim or because of the reasons in your email.
Can you please tell the Deputy President if you are going to keep going with your unfair dismissal claim or if you are going to stop it?
The email sent to you on Monday was about that issue but also about the fact that your matter might be dismissed because you did not come to the Fair Work Commission on Monday as you were required to do. Please read that email carefully. The Deputy President will extend the time for you to give an answer until midday, Thursday 22 February 2024 but it is important that you read it and respond.
As this is a matter that also affects the employer’s interest, they have been copied into this email. Please ensure you copy them into your response to Chambers.”
No further response has been received from the Applicant.
On 22 February 2024, after the due time for the Applicant’s response had passed, attempts were made to contact the Applicant on the new mobile number he had provided. The call went to an automated message prompting a phone number to be left which would be sent as a text to the Applicant, with no capacity to leave a voice message. Further attempts to contact the Applicant on his mobile were made on 23 February 2024 and 26 February 2024, but were unsuccessful.
On 27 February 2024, another email was sent to the parties noting I had not received a response from the Applicant to the email sent on 20 February, which required a response by midday Thursday 22 February, and also noting I had not received any material filed by Mr Di Genova regarding his unfair dismissal application, which was required to be filed pursuant to the Directions sent to the parties on 12 February by no later than 4pm AEDT Monday 26 February 2024. The email also noted multiple attempts had been made to call the Applicant on the new mobile number he had provided, without any success and no ability to leave a voice message. The parties were advised that I intended to proceed to determine the Respondent’s s.399A application to dismiss the Applicant’s unfair dismissal application, to be done on the papers without the need for a hearing.
Section 399A of the Act provides as follows:
“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.
....
(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.”
Section 593 of the Act provides that the Commission is not required to hold a hearing, except as provided by the Act. As the Applicant did not file any material in opposition to the application to dismiss, I will determine the application on the papers.
The power to dismiss an application if the non-compliance is considered to have been unreasonable is discretionary. Other than initially filing his application, the Applicant has failed to prosecute his case at all and aside from the brief email received on 19 February, has provided no explanation to the Commission for failure to attend the mention/conference on 19 February 2024, nor even indicated whether he wishes to continue with his unfair dismissal application. I also note the Applicant has not filed any material in support of his substantive application, which were due by 4pm on 26 February 2024 pursuant to the directions issued on 12 February 2024.
I am satisfied that the Applicant has acted unreasonably in failing to attend the mention hearing on 19 February 2024, because he was advised of it, and the requirement for him to attend, in advance via the contact details he has provided and has made no response to the repeated Commission attempts to contact him prior to the mention hearing. Further, I consider the Applicant has unreasonably failed to comply with my direction to respond to the s.399A application.
Having regard to the circumstances of this matter, I have determined that I should exercise my discretion under s.399A and dismiss Mr Di Genova’s unfair dismissal application.
Putting aside the Applicant’s unexplained failure to attend the mention on 19 February 2024, it is now very clear that he is not taking steps to prosecute his claim and I also dismiss the application for that reason under s.587 of the Act. Dismissal under s.587 was also communicated to the Applicant in the email from chambers on 19 February 2024.
Section 577 of the Act requires the Commission to perform its functions and exercise its powers in a manner that is fair and just, is quick, informal and avoids unnecessary technicalities, is open and transparent, and promotes harmonious and cooperative workplace relations. Section 578 of the Act requires me when exercising powers under the Act to take various matters into account.
Section 587(1) of the Act provides the Commission with power to dismiss an application in accordance with its terms. Section 587(3) empowers the Commission to dismiss an application on its own initiative. Section 587(1) is 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.”
I consider that the clause “Without limiting when FWC may dismiss an application” at the commencement of s.587(1) indicates that the power to dismiss an application is not limited to the specific matters enumerated in subsections (a) – (c). I am satisfied the power to dismiss can extend to circumstances where an applicant has failed to prosecute his or her case, including by non-compliance with directions or orders and a repeated failure to provide a proper explanation for that non-compliance.
When the power to dismiss an application for failure to prosecute is enlivened, it remains a matter of discretion as to whether the power ought be exercised. I am satisfied that the Applicant has not shown a willingness to prosecute his case. He failed to attend a hearing of the Commission despite being advised that he was required to attend, failed to comply with directions of the Commission and has not provided an explanation for his failure to comply with directions, which he was separately required to provide.
Having regard to the above matters, I am satisfied that I should also exercise my discretion to dismiss the matter under s.587 of the Act, either on the basis of a want of prosecution or no reasonable prospects of success. In doing so, I have had regard to the requirements of section 577 and 578 of the Act.
An Order[1] to this effect will be issued with this Decision.
For completeness, while the possibility of a costs application by the respondent was made at the mention hearing on 19 February 2024, in light of the personal circumstances that Mr Di Genova has found himself in (which, for present purposes, I am minded to take on face value), I would indicate my provisional view that a costs order against Mr Di Genova personally would not be appropriate. Otherwise, an application for costs is to be made within 14 days: s.402.
DEPUTY PRESIDENT
[1] PR772047
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