Joseph Sorrentino v Department of Parliamentary Services

[2020] FWC 4474

[2020] FWC 4474

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joseph Sorrentino
v
Department of Parliamentary Services
(U2020/8278)

DEPUTY PRESIDENT DEAN SYDNEY, 31 AUGUST 2020

Application for an unfair dismissal remedy – application dismissed

[1] Mr Joseph Sorrentino (the Applicant) made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] The Applicant’s employment with the Department of Parliamentary Services (the Respondent) was terminated with effect from 25 May 2020. The unfair dismissal application was lodged on 16 June 2020.

[3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The application was filed one day outside the 21 day period and cannot proceed unless an extension of time is granted.

[4] On 29 June 2020, the Commission sent correspondence to the Applicant advising that the application was not made within the statutory time frame and that the Commission may extend the time period for lodging an unfair dismissal application only if satisfied that there were exceptional circumstances. The correspondence set out the matters the Commission must take into account in determining whether ‘exceptional circumstances’ existed to extend time and the Applicant was requested to provide a written statement by 2 July 2020 to address those matters requiring consideration.

[5] The Applicant provided a written response later on the same day, claiming the reason for the delay in filing was that he had carer responsibilities for his wife who was suffering from severe health issues and that his focus was on looking after her after his dismissal.

[6] The application was listed for hearing by telephone on 4 August 2020 to determine whether an extension of time should be granted to the Applicant. Directions were issued requiring the Applicant to file any additional material in support of the application for an extension of time and for the Respondent to file submission in opposition to the application.

[7] On 16 July 2020 the Applicant provided the Commission with medical certificates which certified him as a carer for his partner for the period 30 June to 12 July 2020. The Respondent filed an outline of submissions on 31 July 2020.

[8] On 4 August 2020, the Applicant did not attend the scheduled hearing. The Applicant was unable to be reached on his nominated telephone number and a voice message was left requesting a return call. Mr Bede Gahan of HWL Ebsworth Lawyers (HWL) who was in attendance on behalf of the Respondent, foreshadowed the Respondent would make an application to dismiss the unfair dismissal application for want of prosecution. The hearing did not proceed as a result of the Applicant’s non-attendance.

[9] After the hearing was vacated, the Commission wrote to the Applicant, noting that there had been numerous attempts made to contact the Applicant without success. He was directed to provide a written explanation as to his non-attendance and a reason why his application should not be dismissed in the circumstances. He was further requested to advise the Commission if he no longer wished to proceed with his application. The Applicant was also informed that his application would be dismissed without further notice if he did not respond.

[10] The Applicant did not respond to the correspondence.

[11] By email correspondence dated 7 August 2020, HWL made an application pursuant to s.399A of the Act to dismiss the application on the basis that the Applicant failed to comply with directions and failed to attend the hearing before the Commission.

[12] Section 399A of the 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 another 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.

[13] The Applicant failed to attend the hearing on 4 August 2020 and failed to comply with a direction of the Commission relating to the application. The Applicant has not provided any explanation in respect of his non-attendance at a hearing and non-compliance with the Commission’s direction.

[14] I am satisfied that his failures to attend hearing and comply with a direction of the Commission are unreasonable. Accordingly, I have decided to dismiss the application pursuant to s.399A of the Act. An order to that effect will be issued.

DEPUTY PRESIDENT

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