Jason Gaudiosi v Altus Traffic Pty Ltd T/A Altus Traffic

[2021] FWC 6628

[2021] FWC 6628

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 – Unfair dismissal

Jason Gaudiosi
v
Altus Traffic Pty Ltd T/A Altus Traffic

(U2021/9264)

DEPUTY PRESIDENT LAKE BRISBANE, 21 DECEMBER 2021

Application for an unfair dismissal remedy – Application for dismissal of application pursuant to s.399A – Application dismissed.

[1] On 19 October 2021, Jason Gaudiosi (theApplicant) lodged an application with the Fair Work Commission (theCommission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Altus Traffic Pty Ltd T/A Altus Traffic(theRespondent). The Respondent has subsequently made an application for the matter to be dismissed pursuant to s.399A of the Act.

Legislation

[2] 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.”

Procedural background

[3] This matter was listed for a staff conciliation on 18 November 2021 by telephone to see if the matter could be resolved between the parties. On that occasion, the Applicant was called by the conciliator multiple times. She left voice messages. The Applicant’s representative – who did attend – attempted to text the Applicant. No response was received by either the conciliator or the Applicant’s representative. The Respondent was ready and able to attend but was notified that the conciliation could not take place as the Applicant could not be reached.

[4] On 24 November 2021, the Commission wrote to the Applicant seeking confirmation that they would be available for a further attempt at conciliation. The email required that the Applicant respond by 4pm AEST on 26 November 2021. No response was received.

[5] On 30 November 2021, a Commission employee attempted to call the Applicant in the morning to discuss whether he wanted to continue with his application. The Applicant could not be contacted and a voicemail was left requesting that he make contact by the end of the day. No response was received.

[6] On 2 December 2021, an email was sent to the Applicant asking if he continued to press his Application.

[7] On 9 December 2021, the Commission received an email stating that, “I, Jason Gaudiosi, would like for you to continue with my unfair dismissal case. Please move forward with my case.” Curiously, that email was sent from an email address which used someone else’s name, though it copied the Applicant’s email into the correspondence.

[8] The matter was allocated to my Chambers on 9 December 2021 for determination of the merits of the application. A notice of listing and directions were sent from my Chambers later that day setting out dates by which the parties were to provide material in respect of the application and listing the matter for, inter alia, a Mention/Directions and Conference before me on 15 December 2021 at 12:30pm.

[9] At 8:26am on 15 December 2021, my Chambers received an email from the Applicant’s representative stating that, “The Applicant has failed to respond to our communications attempts. As such, we will not be appearing on his behalf today.”

[10] At 9:13am that day, my Chambers confirmed receipt of that email and noted that the Applicant would be contacted directly for the conference later that afternoon.

[11] Between 12:25pm and 12:45pm, my Chambers attempted to call the Applicant on the prescribed number four three. Multiple messages were also left asking the Applicant to return the call as a matter of urgency. No contact was made. Meanwhile, the Respondent was contacted and ready to attend.

[12] At 12:45pm that afternoon, my Chambers wrote to the Applicant –copying the Respondent – in the following terms:

“Dear Mr Gaudiosi

I refer to the above matter which was scheduled for a Mention/Directions Hearing at 12.30pm this afternoon.

Three attempts were made to contact you on the mobile telephone number provided on your application, and you could not be contacted. The Respondent was contacted and ready to attend.

 I note that the attached notice of listing was sent on 9 December 2021 to you at [email protected]. That email was also sent to your legal representatives, though I note they no longer act for you.

The Deputy President directs you to provide reasons for failing to attend this afternoon’s Mention/Directions Hearing by 4pm (AEST) on 16 December 2021.

If nothing is received from you by this time, the Deputy President may dismiss your application pursuant to s.587 of the Fair Work Act 2009  (Cth)on the basis that it has no reasonable prospects of success because you have failed to prosecute your application.

It is also noted that following your failure to attend this afternoon, it is open to the Respondent to make an application under s.399A of the Fair Work Act 2009 to have your unfair dismissal application dismissed on the basis that you unreasonably failed to attend a conference or hearing in the Commission. Such an application can be made using a Form F1 application.”

[13] No response was received.

[14] At 4:57pm on 16 December 2021, the Respondent filed a Form F1 seeking that the Applicant’s application be dismissed. Shortly thereafter, my Chambers emailed both parties stating that:

“Dear Ms Agnew

I confirm receipt of that Application (with attachments).  

Mr Gaudiosi, you have until midday tomorrow, 17 December 2021 to respond to the Respondent’s application which seeks that your application be dismissed.”

[15] No response having been received by 12:52pm the following day, my Associate again tried to call the Applicant. He did not answer and a message was left asking that he return the call as a matter of urgency. No response was received.

Respondent’s submissions

[16] The Respondent submits that, based on the number of attempts the Commission and the Respondent have made to resolve this matter, it is the view of the Respondent that the Applicant does not wish to participate and has failed to comply with the directions of the Commission.

Consideration

[17] The Applicant has failed to attend a conference in respect of his application matter. He has been provided with ample opportunity to provide an explanation for his absence but has not done so. The non-attendance and subsequent lack of response to Chambers attempts at communication by the Applicant has prompted the Respondent to make an application for the matter to be dismissed pursuant to s.399A of the Act.

[18] The process undertaken has been accordance with that which was set out by the Full Bench decision in Iain Kenneth Lockyear v Graeme Cox. 1 The application was lodged by the Respondent, as a Form F1, and a copy was served on the Applicant. The Applicant was provided with an opportunity to respond to the application and advised that a failure to do so may result in his application being dismissed.

[19] I am therefore satisfied that it is appropriate for the Applicant’s application to be dismissed. Accordingly, I order that the application be dismissed.

DEPUTY PRESIDENT

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 1   [2021] FWCFB 875 [57].