Giovanni Zuffellato v Mensroom Docklands Unit Trust T/A Barbershop

[2020] FWC 3742

[2020] FWC 3742

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Giovanni Zuffellato
v
Mensroom Docklands Unit Trust T/A Barbershop
(U2020/4617)

DEPUTY PRESIDENT MASSON MELBOURNE, 17 JULY 2020

Application for an unfair dismissal remedy Application for an unfair dismissal remedy – application dismissed pursuant to s 587.

[1] On 10 April 2020, Mr Giovanni Zuffellato (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment with Mensroom Docklands Unit Trust T/A Barbershop (the Respondent) was unfair.

[2] The matter was allocated to my Chambers on 10 June 2020 for determination. Following allocation of the matter, a mention/conference was initially listed for 15 June 2020 but was rescheduled to 22 June 2020 to accommodate the Applicant’s availability and the time difference with Italy where the Applicant now resides.

[3] Directions were sent to the parties on 15 June 2020 which advised that the matter would be listed for hearing on 18 August 2020 and also provided dates for the filing of submissions, witness statements and material by the parties. The Applicant was required to file his material on or by 4.00pm Friday 3 July 2020. In the email sent to the parties on 15 June 2020, my chambers also attached copies of the Fair Work Commission (the Commission) Unfair Dismissal Benchbook and Fact Sheets for conferences and hearings.

[4] Prior to the mention/conference held on 22 June 2020 the Applicant forwarded to my chambers on 15 June 2020 copies of payslips and advised in an email that he was seeking outstanding wages and superannuation entitlements.

[5] During the mention/directions hearing on 22 June 2020, at which the Respondent did not appear, the Applicant was advised that the nature of his complaint regarding his dismissal appeared, on the basis of material sent by him to my chambers on 15 June 2020, to be confined to that of wages and superannuation underpayment claims. It was explained to the Applicant that the Commission did not have jurisdiction to determine the underpayment claims as part of his unfair dismissal application. The Applicant was encouraged to seek independent advice regarding pursuit of his wages and superannuation underpayment claims, including by contacting the Fair Work Ombudsman (FWO).

[6] The Applicant failed to file material in accordance with the directions issued following which my chambers wrote to the Applicant on 6 July 2020. The Applicant was advised that his failure to file his material would be dealt with on the basis of non-compliance. He was also invited to file a Form F50 if he wished to discontinue the matter.

[7] The Applicant responded on 6 July 2020 stating that he had complied with the directions having already filed his materials with his email of 15 June 2020 to which I have referred above at [4]. On 7 July 2020 further correspondence was sent by my chambers to the Applicant which relevantly stated as follows;

“……………..

The Deputy President notes that the attached material was previously provided however as pointed out by the Deputy President during the Mention/Conference conducted on 15 June 2020, the material filed goes to a claimed underpayment of wages and not to whether the termination of your employment was unfair. As also explained during the conference, the Deputy President does not have the jurisdiction to deal with the underpayment of wages and superannuation claims you have raised. The material filed fails to comply with the directions previously issued in that they do not contain an outline of submissions or any witness evidence that addresses the statutory requirements of the Fair Work Act 2009 (the Act).

……………..”

[8] In the correspondence sent to the Applicant on 7 July 2020 additional Commission material was attached to assist the Applicant’s preparation of an outline of submissions and witness statement. An extension of time was also granted to the Applicant up to 4.00 pm Thursday 9 July 2020 within which to file his material. The Applicant responded on the 7 July advising that he has no other proof other than his termination letter.

[9] On 13 July 2020 further correspondence was sent to the Applicant by my chambers advising that as he had failed to comply with the revised directions his unfair dismissal application was at risk of being dismissed pursuant to s. 587 of the Act. He was invited to file submissions on or by 4.00pm on Thursday 16 July 2020 as to why his application should not be dismissed. No response was received from the Applicant.

[10] Turning now to whether the application should be dismissed the relevant section 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.

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.”

[11] The words, “without limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[12] In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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