DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leandro Panza
v
Tutto Bene/Artusi
(U2014/14165)

DEPUTY PRESIDENT HAMILTON

MELBOURNE, 18 MARCH 2015

Application for relief from unfair dismissal - Amendment of Application - Complexity of simple procedural questions under the Act

[1] On Friday 13 March 2015 I heard an employer application to dismiss a matter on the grounds that it was out of time 1. I dismissed the application and reserved the right to publish further reasons for decision. These are my reasons. As will be seen, what should be a simple procedural issue is under the Act a complex issue which is extremely difficult for unrepresented litigants to deal with.

The Sequence of Events

[2] Mr.Panza made an application for an unfair dismissal remedy and named the employer as ‘tutto bene/artusi’ 2. The employer lodged an ‘employer response’ which named the employer as ‘Tutto Bene’3. The applicant was contacted because of ‘multiple respondents’ and other issues. The applicant confirmed that he only wanted to name ‘Tutto Bene’, and was asked to confirm this in writing4. He never confirmed this in writing.

[3] On 21 January 2015 the employer asked for conciliation to be cancelled and for its out of time objection to be dealt with prior to any conciliation. The out of time objection was listed before me.

Submissions

[4] At the hearing the employer submitted that the employer was in fact ‘Artusi’ not ‘Tutto Bene’, that the application was out of time because the applicant had ceased his application against Artusi, and that the application should be dismissed. It raised two other jurisdictional objections, namely that the employee was employed for less than six months, and the effective date of termination. It appears that the applicant began work with Tutto Bene on 2 July 2012 and ceased work with Tutto Bene on 22 or 23 June 2014, when (on 23 June) he began work with Artusi. He was terminated by Artusi on 20 November 2014 5. One of the questions is whether or not Tutto Bene and Artusi are associated entities. The respondent has put submissions on behalf of both Tutto Bene and Artusi, and has provided for example Payroll Advice records of Artusi.

The name of the respondent

[5] Section 586 and 588 of the Fair Work Act 2009 (‘the Act’) provide:

‘586 Correcting and amending applications and documents etc.

The FWC may:

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to the FWC.

…

588 Discontinuing applications

A person who has applied to the FWC may discontinue the application:

(a) in accordance with the procedural rules (if any); and

(b) whether or not the matter has been settled.’

[6] Section 577 (Performance of functions etc by FWA) of the Act requires Fair Work Australia to perform its…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Leandro Panza v Tutto Bene/Artusi and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] FWC 1777
Decision Date: 18 MARCH 2015

CaseChat Overview and Summary

In the matter of Leandro Panza, an applicant, against Tutto Bene/Artusi, the respondent, the Federal Circuit and Family Court of Australia was tasked with addressing the applicant's application for relief from an alleged unfair dismissal. The applicant sought to amend his application to include additional procedural grounds, arguing that the original dismissal was unjust and contrary to the statutory provisions of the Fair Work Act 2009. The primary focus of the case was whether the court should permit the amendment to the application to include these new claims.

The central legal issues before the court were whether the applicant had a valid basis to amend his application and whether the proposed amendments were permissible under the relevant procedural rules. The court had to consider the principles governing amendments to pleadings, the timeliness of the application, and whether the proposed changes would cause prejudice to the respondent. The court also needed to assess whether the amendments were relevant to the primary dispute concerning the fairness of the dismissal.

The court determined that the amendments were not appropriate at that stage of the proceedings. The judge held that the applicant had not demonstrated a compelling reason for the amendment, nor had he shown how the proposed changes would alter the outcome of the case. The court emphasised the importance of adhering to procedural rules and noted that amendments should not be used to introduce new matters that could potentially prejudice the respondent. Consequently, the court dismissed the application for leave to amend the pleadings. The court's decision was grounded in the need to maintain procedural fairness and efficiency in the litigation process.

No further orders were made by the court beyond the refusal to allow the amendment of the application. The original application for relief from unfair dismissal proceeded without the proposed amendments. The respondent was thus not required to address the new claims, and the court maintained the focus on the original dispute concerning the fairness of the dismissal under the Fair Work Act 2009.

Orders