Lucas D'Aspromonte v Carmaz Management Pty Ltd T/A Caroline Springs Mazda

[2019] FWC 3439

[2019] FWC 3439

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lucas D’Aspromonte
v
Carmaz Management Pty Ltd T/A Caroline Springs Mazda
(U2019/3350)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 17 MAY 2019

Application for an unfair dismissal remedy – application dismissed pursuant to s.399A of the Act.

[1] This matter was listed for non-compliance hearing before me on 17 May 2019. At the conclusion of the hearing, I dismissed the application as I was persuaded that I should exercise my discretion under s.399A. My written reasons for my decision are provided below.

[2] On 25 March 2019 Mr Lucas D’Aspromonte (the Applicant) made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr D’Aspromonte said that his employment had been terminated by Carmaz Management Pty Ltd T/A Caroline Springs Mazda (the Respondent).

[3] On 26 April 2019, directions were issued to the parties requiring Mr D’Aspromonte to file materials in support of his application in the Commission by no later than noon on Monday 6 May 2019. No such materials were received.

[4] On 9 May 2019, the Respondent filed in the Commission an application pursuant to s.399A of the Act that the matter be dismissed due to Mr D’Aspromonte’s failure to comply with a direction of the Commission.

[5] The matter proceeded to a non-compliance hearing before Deputy President Masson on 10 May 2019. The Deputy President granted Mr D’Aspromonte an extension to 14 May 2019 to file his materials, noting that if Mr D’Aspromonte failed to comply with this direction the matter would progress to a further non-compliance hearing in which the Respondent’s s.399A application would be dealt with.

[6] Mr D’Aspromonte did not file any materials in accordance with this direction. On 14 May 2019 Mr D’Aspromonte was contacted by the Commission regarding his overdue submissions. Mr D’Aspromonte advised the Commission that he had not completed his submissions and was advised that he would need to request an extension to file materials in writing.

[7] No such request for an extension was received. The matter proceeded to a non-compliance hearing before me on Friday 17 May 2019.

[8] Mr D’Aspromonte was unable to be contacted for this hearing. Several voicemail messages were left for Mr D’Aspromonte advising that the non-compliance hearing was due to commence and requesting an urgent call back. Mr D’Aspromonte did not return any of these calls.

[9] The hearing proceeded in the absence of the Applicant and the Respondent pressed their s.399A application.

[10] 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.

[11] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr D’Aspromonte has failed to respond to numerous attempts made by the Commission to contact him and has provided no explanation to the Commission for his failure to comply with the directions of the Commission. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr D’Aspromonte’s application. An order 1 giving effect to this decision will be issued today.

COMMISSIONER

Appearances:

S. Blood for the Respondent.

Hearing details:

2019

17 May (telephone hearing)

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