Leslie Vincent Lopez v Schiavello Group Pty Ltd T/A Schiavello Pty Ltd

[2014] FWC 4960

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leslie Vincent Lopez
v
Schiavello Group Pty Ltd T/A Schiavello Pty Ltd
(U2014/1251)

COMMISSIONER WILSON

MELBOURNE, 25 JULY 2014

Application for unfair dismissal remedy.

[1] On 14 April 2014, Mr Leslie Lopez made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Lopez’ employment had been terminated by Schiavello Group Pty Ltd T/A Schiavello Pty Ltd (Schiavello) on 2 April 2014.

[2] The matter was listed for conciliation on 29 May 2014 however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Lopez was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 23 June 2014.

[4] On 30 June 2014, Schiavello filed an objection to the application and sought the dismissal of Mr Lopez’s application pursuant to s.399A of the Act as Mr Lopez had failed to comply with the directions of the Fair Work Commission (the Commission).

[5] On 1 July 2014, Mr Lopez was sent correspondence informing him of the Respondent’s s.399A application. Mr Lopez was directed to file submissions and other documentary material in respect of Schiavello’s application by close of business, on 15 July 2014. Mr Lopez was advised that if he failed to comply with this direction, his application would be dismissed.

[6] Mr Lopez did not file any material with the Commission.

[7] 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.

[8] I am satisfied that Schiavello’s objection filed on 30 June 2014 is an application to have the matter dismissed for Mr Lopez’ failure to comply with a direction and failure to attend the non compliance hearing.

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

[10] As Mr Lopez did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of Leslie Vincent Lopez against Schiavello Group Pty Ltd trading as Schiavello Pty Ltd, the applicant sought a remedy for unfair dismissal. The dispute arose in the Federal Circuit and Family Court of Australia, where the applicant, a former employee, challenged the termination of his employment by the respondent, his former employer. The applicant argued that the dismissal was unjust and contrary to the provisions of the Fair Work Act 2009.

The legal issues that the court was required to determine included whether the dismissal was procedurally fair, whether the reasons for the dismissal were valid, and whether the respondent had a genuine and valid reason related to the applicant’s capacity or conduct. Specifically, the court had to assess if the employer had followed the correct procedures in terminating the employment and whether the grounds for dismissal were substantiated by evidence.

The court examined the evidence presented by both parties and assessed the procedural fairness of the dismissal process. It found that the employer had failed to provide adequate evidence to support the reasons for the dismissal, and the process did not comply with the procedural requirements outlined in the Fair Work Act. The court also noted that the employer did not provide the applicant with an opportunity to respond to the allegations against him. Consequently, the court determined that the dismissal was unfair and ordered that the applicant be reinstated to his former position and be compensated for the period of unlawful dismissal. The court further directed that the employer pay the applicant’s costs associated with the proceedings.

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