Jake Miragliotta v Valmec Services Pty Ltd
[2022] FWC 831
| [2022] FWC 831 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jake Miragliotta
v
Valmec Services Pty Ltd
(U2021/11757)
| DEPUTY PRESIDENT BINET | PERTH, 12 APRIL 2022 |
Application for an unfair dismissal remedy - Application by the Respondent pursuant to s 399A of the Fair Work Act – Application dismissed.
On 16 December 2021, Mr Jake Miragliotta (Mr Miragliotta) 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 Valmec Services Pty Ltd (Valmec Services).
On 28 December 2021, Valmec Services filed a Form F3 - Employer response to unfair dismissal application. The Employer’s response raised no jurisdictional objections to the Application.
The Application was listed for a conciliation conference before a Staff Conciliator on 23 February 2022. Mr Miragliotta failed to participate in the conference.
The Application was allocated to my Chambers for determination.
On 14 March 2022 a Notice of Listing was issued to the parties informing them that the Application had been listed for Member Conciliation via Microsoft Teams on 22 March 2022 (Conference).
On 21 March 2022, Mr Miragliotta informed Chambers that he did not intend to participate in the Conference.
In light of this directions were issued to parties on 23 March 2022 which required Mr Miragliotta to file his materials in relation to the merit of the Application by 31 March 2022 (Directions). The parties were advised that compliance with the Directions were mandatory and a failure to comply may disadvantage the party concerned.
On 31 March 2022, Chambers wrote to Mr Miragliotta and reminded him that his materials in relation to the merits of his application were due that day.
Mr Miragliotta failed to file any materials in accordance with the Directions.
On 1 April 2022 Valmec Services made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Mr Miragliotta had failed to comply with the Directions (Dismissal Application).
On 5 April 2022 Mr Miragliotta was invited to file materials, submissions and evidence as to why the Application should not be dismissed by 4pm 7 April 2022. Chambers advised Mr Miragliotta that if he did not file submissions and evidence by 4pm 7 April 2022 the Application would be dismissed pursuant to section 399A of the FW Act.
On 6 April 2022, Mr Miragliotta filed an email with Chambers stating “I will dismiss the case if Valmec agrees to correct payments during the stated period of time.” In response to this Chambers wrote to the Mr Miragliotta advising him that his response did not address to reasons for why he did not file his materials as directed. Mr Miragliotta was remined of the materials he was required to file by 4pm 7 April 2022 and provided with information in relation to recovery of alleged wage underpayments.
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 other 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).
(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.”
Mr Miragliotta failed to file the materials he was directed to file by the dates specified in the Directions. As at the date of this decision Mr Miragliotta has still not filed any materials in support of his Application or in response to the Dismissal Application. I am satisfied that Mr Miragliotta has unreasonably failed to comply with directions of the FWC relating to this Application. On the Application of Valmec Services and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application.
An Order to this effect[1] will be issued with this decision.
DEPUTY PRESIDENT
[1] PR740255
Printed by authority of the Commonwealth Government Printer
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