Ingui v MSS Security Pty Ltd

Dominic Igini lodged an unfair dismissal application against MSS Security Pty Ltd, alleging that he was constructively dismissed on 27 December 2017. MSS denies the dismissal and raised a jurisdictional objection to the application. The case was subject to a conciliation conference, which was unsuccessful, and the matter is scheduled for a Jurisdiction (No Dismissal) and Arbitration Conference/Hearing. Additionally, MSS applied to dismiss Igini's unfair dismissal application under section 399A of the Fair Work Act 2009, claiming Igini unreasonably failed to comply with a direction to attend a mention hearing. The application to dismiss was heard by the Fair Work Commission, who considered whether the application should be dismissed based on Igini's failure to attend the mention hearing.

The primary legal issue the Fair Work Commission had to decide was whether to dismiss Igini's unfair dismissal application under section 399A of the Fair Work Act 2009, considering Igini's failure to attend a mention hearing. The Commission also had to assess whether Igini's non-attendance constituted unreasonable non-compliance warranting the dismissal of his application.

The Fair Work Commission deliberated on the application to dismiss and noted that the power to dismiss an application is discretionary and should only be exercised in extreme circumstances where there is unreasonable non-compliance by the applicant. The Commission adopted the principles outlined in Ghalloub v Aon Risk Services Australia Limited, emphasizing that the starting point is that an applicant is entitled to have their case heard, and dismissal should only be considered in extreme circumstances. The Commission found that Igini's non-attendance at the mention hearing did not result in unnecessary delay, expense, or prejudice to MSS and that his non-attendance did not adversely impact case management. Given the lack of extreme circumstances, the Commission decided not to dismiss Igini's unfair dismissal application.

The Fair Work Commission dismissed MSS Security Pty Ltd's application to dismiss Dominic Igini's unfair dismissal application under section 399A of the Fair Work Act 2009. The substantive issues of MSS's jurisdictional objection and Igini's unfair dismissal application will proceed as scheduled.