Jon Cocciolone v Air Exchange A/Sia Pty Ltd
[2023] FWC 1726
•14 JULY 2023
| [2023] FWC 1726 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jon Cocciolone
v
Air Exchange A/Sia Pty Ltd
(U2023/4899)
| COMMISSIONER PERICA | MELBOURNE, 14 JULY 2023 |
Application for an unfair dismissal remedy
Mr Jon Cocciolone (the Applicant) was employed by Air Exchange A/Sia Pty Ltd (the Respondent) from 8 August 2022 until his dismissal on 19 April 2023. The Applicant filed an application for an unfair dismissal remedy s 394 of the Fair Work Act 2009 (the Act) alleging he was unfairly dismissed by the Respondent.
The application was made by the Applicant on 4 June 2023, 25 days beyond the standard time limit prescribed by s 394(2)(a).
Procedural history
On 14 June 2023, I issued directions for procedural steps up to the hearing of the application for the Applicant’s extension of time application including:
“The Applicant is directed to provide to the Commission and to the Respondent, by 5:00pm on Wednesday, 28 June 2023, any witness statements, any other documentary evidence, and submissions on which they seek to rely in relation to their extension of time application, addressing each of the following matters:
· The reason(s) for the delay;
· Whether the Applicant first became aware of the dismissal after it had taken effect;
· Any action taken to dispute the dismissal;
· If there is any prejudice to the employer (including prejudice caused by the delay);
· The merits of the application; and
· Fairness as between the Applicant and any other persons in a similar position.”
On 15 June 2023, my Chambers received an e-mail from the solicitors for the Respondent stating it wished to make a jurisdictional objection on the basis that:
“The Applicant has less than 12 months continuous service and [the Respondent] is a small business employer with less than 15 employees.”
On the same day, my Chambers notified the parties of a mention and directions hearing on 20 June 2023 to program the jurisdictional objection raised by the Respondent.
On 16 June, the Respondent filed its Form F3 in which it made the anticipated jurisdictional objection.
On 20 June 2023, a mention and directions hearing was held. The Respondent and its legal representative attended. The Applicant did not. My Chambers made three attempts to contact the Applicant during the conference; twice by telephone with voice messages and once by e-mail.
On 28 June 2023, the Applicant contacted my Chambers by e-mail. He explained he did not attend the hearing on 20 June 2023 for medical reasons. He also indicated that he wished to pursue his application.
Following receipt of this e-mail, my Chambers wrote to the Applicant requesting that he provide proof of the medical reasons for non-attendance at the mention and directions hearing by 4:00 PM on 7 July 2023.
By direction [4] of the directions issued on 14 June 2023, the Applicant was required to file and serve his material in support of his extension of time application by 5:00 PM on 28 June 2023. No material was received.
On 3 July 2023, I issued further directions which set out the procedural history of this matter including the compliance failures of the Applicant. Those directions included the following paragraph:
[9] Compliance with directions and attendance at hearing dates are mandatory. The Applicant is directed to consider the Commission’s power to dismiss applications on the following bases:
· Section 399A allows the Commission, on application by the employer, to dismiss an application where the applicant has unreasonably failed to attend a listing conducted by the Commission or failed to comply with a direction of the Commission.
· Section 587 allows the Commission, on its own initiative, to dismiss an application if it has no reasonable prospects of success. Failure to file material and prosecute your case affect your prospects of success.
Those directions also amended the directions I issued on 14 June as follows:
[10] Given the failure of the Applicant to comply with the Directions to file his supporting material, it is necessary to amend the Directions made on 14 June 2023. They are amended as follows:
· Direction [5] that the Respondent file and serve its response material by Wednesday, 5 July 2023 is vacated.
· The listing for 10:00 AM on Monday, 10 July 2023 at paragraph [3] will remain a Mention/Directions hearing.
· By 5:00 PM on Friday, 7 July 2023, the Applicant will provide medical evidence to the Commission as to his incapacity to comply with the Directions previously made in this matter.
[11] Should the Applicant fail to attend on Monday, 10 July 2023, the listing will instead be a non-compliance hearing as to why the matter should not be dismissed on the basis of the Applicant’s failure to attend the two listings and comply with the directions issued on 14 June 2023.
[12] The Applicant is directed to contact my Chambers immediately should he not be able to comply with any of these Directions.
The Applicant failed to comply with the direction to provide medical evidence to the Commission as to his incapacity by 5:00 PM on 7 July 2023.
At 10:00 AM on 10 July 2023, a mentions and directions hearing was held. The Respondent and its solicitor attended. The Applicant did not. My Chambers attempted to contact the Applicant by telephone prior to the commencement of the hearing and left a voice message.
Relevant Legislation
Section 587 of the Act provides:
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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.
Consideration
In the decision for Haylie Brennan (Weingott) v Carlton and United Breweries Pty Ltd [2022] FWC 990, Deputy President Young found:
In determining whether to dismiss a matter on its own initiative, the Commission is not limited to the matters specified in section 587(1)(a) to (c). The opening words ‘[w]ithout limiting when the FWC may dismiss a matter’ clearly confers a broader discretion.
It follows I have power under s 587 to dismiss this application on my own initiative.
The Applicant has failed to comply with the following procedural directions:
· He did not attend the mention and directions hearing on 20 June 2023.
· He did not comply with the direction made on 14 June 2023, that he file material in support of his extension of time application by 28 June 2023.
· He did not comply with the direction made on 3 July 2023, that he provide medical evidence to the Commission as to his incapacity to comply with directions previously made by 7 July.
· He did not attend the mention and directions hearing on 11 July 2023.
Procedural directions of the Commission are mandatory. It is vital to the expedient case management of matters before it that procedural directions of the Commission are followed. The Applicant’s repeated and unexplained failure to attend mention and directions hearings and follow procedural directions provide grounds to dismiss the matter for want of prosecution.
In these circumstances, I have decided to dismiss the application for want of prosecution pursuant to s 587(3)(a). This application is therefore dismissed.
COMMISSIONER
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