Jason Sorrenti v Hilti (Aust) Pty Ltd

[2020] FWC 5564

[2020] FWC 5564

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Sorrenti
v
Hilti (Aust) Pty Ltd
(U2020/12385)

COMMISSIONER WILSON MELBOURNE, 20 OCTOBER 2020

Application for an unfair dismissal remedy – s.399A application granted.

[1] On 15 September 2020, Mr Jason Sorrenti (the Applicant) made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) alleging he was unfairly dismissed by Hilti (Aust) Pty Ltd (the Respondent). The application was filed by Mr Politis, a legal practitioner.

[2] Section 394(2) of the Act requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). From the dates provided in the Form F2 application, Mr Sorrenti’s application was made outside of the statutory time limit, with it having been made 1 day after the expiry of the 21 day time period allowed for by the Act, which ended on Monday, 14 September.

[3] Consistent with the Commission’s usual practice on these matters, with the application having been made out of time, the matter was referred to me for hearing and determination of whether an additional period of time should be allowed for the making of Mr Sorrenti’s application.

[4] Directions were issued to parties on Thursday, 17 September 2020. The Directions required the Applicant to file an outline of argument, a statement of evidence and any other documentary material he intended to rely on in support of an extension of time by 4.00PM Friday, 25 September 2020. The Directions were provided to both Mr Sorrenti and Mr Politis.

[5] The Respondent filed a Form F3 Employer’s Response Form on Tuesday, 22 September 2020 raising jurisdictional objections that the application was filed out of time and that the dismissal was a case of genuine redundancy. Upon review of the Form F3, my Chambers wrote to the parties to advise the genuine redundancy objection was noted but would not be the subject of the current extension of time proceedings.

[6] No submissions were filed by the Applicant or his representative on Friday, 25 September 2020. On Monday, 28 September 2020 my Chambers wrote to Mr Sorrenti and Mr Politis advising that the application was at risk of being listed for non-compliance and directed that the Applicant file his materials that day. No response was received from either Mr Sorrenti or Mr Politis.

[7] A second non-compliance email was sent by my Chambers to Mr Sorrenti and Mr Politis on Tuesday, 29 September 2020. The email advised that if they failed to contact the Commission by 1.00PM AEST, that the application would be listed for a Non-Compliance Hearing on Friday, 2 October 2020 at 9.30AM. No response was received by 1.00PM AEST from either Mr Sorrenti or Mr Politis.

[8] My Associate called Mr Politis prior to the close of business on Tuesday, 29 September 2020 to advise that as no response had been received, the application was being listed for a Non-Compliance Hearing.

[9] After the Notice of Listing for the Non-Compliance Hearing was issued to parties, Mr Politis emailed my Chambers advising that he had family circumstances which prevented him from attending to filing in compliance with the Directions.

[10] I considered it appropriate to vacate the Non-Compliance Hearing and to issue Amended Directions to the parties following Mr Politis’ notification of the reasons for the non-compliance with the Commission’s Directions. On Wednesday, 30 September 2020 Amended Directions were issued to parties. The Amended Directions required the Applicant to file an outline of argument, a statement of evidence and any other documentary material he intended to rely on in support of an extension of time by 12.00PM Friday, 2 October 2020. The Directions were again provided to both Mr Sorrenti and Mr Politis. The parties were also put on notice that if the Applicant failed to file by the revised deadline, the Commission was disposed to receive and consider a s.399A application from the Respondent.

[11] No response or submissions were filed from Mr Sorrenti or Mr Politis by the deadline in the Amended Directions.

[12] On Monday, 5 October 2020 my Chambers wrote to parties advising that the Applicant was non-compliant with the Amended Directions and stating the Respondent may wish to make an application under s.399A of the Act.

[13] A s.399A application was filed by the Respondent on 7 October 2020. The s.399A application was served on both Mr Sorrenti and Mr Politis. My Chambers wrote to the Respondent the following day to advise that the Commission would seek the views of the Applicant prior to determining the s.399A application.

[14] On Thursday, 8 October 2020 my Chambers wrote to Mr Sorrenti and Mr Politis directing the Applicant to file with the Commission, and serve on Hilti (Aust) Pty Ltd, submissions providing reasons as to why the Commission should not dismiss Mr Sorrenti’s application, with evidence or other documentary material to support the reasons. The material was required by no later than 4:00PM on Thursday, 15 October 2020. The correspondence also stated that “if the Applicant does not provide reasons by 4:00pm on 15 October 2020, it is very likely that Mr Sorrenti’s case will be dismissed without further notice.”

[15] Mr Politis wrote to my Chambers on Friday, 9 October 2020 advising he had been unwell and that he not sighted the s.399A application and requesting seven days to file material on behalf of his client. My Chambers replied the same day forwarding the s.399A application and the lodgement email and attached a further copy of the correspondence directing a response from the Applicant by 4.00PM on Thursday, 15 October 2020. Mr Politis was advised that if either he or Mr Sorrenti wished to defend the s.399A application on the basis of Mr Politis illness, evidence of the illness was required to be submitted with the reply remaining due by 4.00PM Thursday, 15 October 2020.

[16] Mr Sorrenti called my Chambers on the date the submissions addressing Hilti’s s.399A application were due to be filed, Thursday, 15 October 2020. My Associate returned his call and advised Mr Sorrenti what he was required to file by 4PM that day. This telephone communication was followed by an email from Mr Sorrenti:

“… I am emailing to request information on what is required for this next step as I have been unable to make contact with my lawyer Mr Politis for the last 5 days. He has been handling up until this stage for me.

I will now be handling this matter myself. I believe you are asking for justification as to why the application was submitted outside of the 21 days, is this correct? My final day of employment was the 24th of August and it was my understanding that Mr Politis has was submitted the application before the 15th of September which fell within the 21 days …”

[17] My Chambers replied as follows clarifying that the Applicant was required to address the s.399A dismissal application:

“As per the attached letter which was provided to both you and Mr Politis on 8 October 2020, Hilti (Aust) Pty Ltd has made an application pursuant to s.399A of the Fair Work Act 2009 to have your unfair dismissal application dismissed due to your non-compliance with a Direction of the Fair Work Commission.

By 4.00PM today you have been Directed to file submissions providing reasons as to why the Commission should not dismiss your unfair dismissal application, with evidence or other documentary material you have to support the reasons.

If you file submissions by the due date the Commission will consider the submissions in determining the s.399A application.”

[18] Two consecutive emails were received from Mr Sorrenti firstly asking what format the submissions need to be in and then a minute later providing:

“Further more

As discussed I was unable to file material by 12noon Friday 2nd of October as I was relying on my lawyer to file on my behalf has he had been representing me in this matter. I understand he had advised you he was unwell and he advised me that he would be providing you the required documents and information. Since then I have not heard from him or been able to contact him at all. This is the reason I need an extension to provide the materials you need.

Also, can you please advise me what material was required for the 2nd October?”

[19] As no further submissions were received from Mr Sorrenti or Mr Politis prior to 4.00PM on Thursday, 15 October 2020 the parties were advised on Monday, 19 October 2020 that I would determine the s.399A application on the material presently before the Commission.

[20] I now turn to determining the s.399A application.

[21] 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.

[22] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[23] It is noted that neither Mr Sorrenti nor Mr Politis have filed a Form F54 notice advising the Commission that Mr Politis has ceased to act for the Applicant in this matter. As such, Mr Politis remains on file as a legal representative of the Applicant. While that is so, I note that the Applicant advised on 15 October 2020 that he would now be handling the matter himself and that my Chambers was specific as to the material he was required to file.

[24] As Mr Sorrenti did not file any submissions beyond the two emails to my Chambers on Thursday, 15 October 2020 as outlined above and no submissions in opposition to the application were received from Mr Politis, I will determine the application on the papers.

[25] As all correspondence from my Chambers was provided to both Mr Sorrenti and Mr Politis it was open for either of them to communicate with my Chambers in response to the non-compliance correspondence and to defend the s.399A application. Mr Politis was clearly directed to provide supporting evidence of his illness if that was relied upon as a reason for not having engaged with the Commission’s requirements.

[26] Mr Sorrenti chose not to correspond with my Chambers until the day the submissions in defence of the s.399A application were due to be filed and Mr Politis did not correspond further with the Commission after his email of 9 October 2020. There is no material presently before the Commission that would persuade me that the Applicant or his lawyer have attempted in a meaningful way to defend the s.399A application. I find these circumstances to be an unreasonable failure to comply with a direction of the Commission relating to the Applicant’s application for an unfair dismissal remedy.

[27] After considering all the material, Mr Sorrenti’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR723667>