Luigi Dicello v Gullaci Earthworks Pty Ltd

[2018] FWC 1695

[2018] FWC 1695

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Luigi Dicello

v

Gullaci Earthworks Pty Ltd

(U2018/94)

Deputy President Clancy MELBOURNE, 23 MARCH 2018

Application for an unfair dismissal remedy – Application dismissed.

1. On 3 January 2018, Mr Luigi Dicello 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 Dicello said that his employment had been terminated by Gullaci Earthworks Pty Ltd (Gullaci) on 11 December 2017.

1. On 12 February 2018, Gullaci filed their Form F3 – Employers response to unfair dismissal application in which they raised three jurisdictional objections. Gullaci stated that Mr Dicello’s application had been lodged outside of the 21 day timeframe, that Mr Dicello did not meet the minimum employment period and that Gullaci were a small business who followed the Small Business Fair Dismissal Code in its termination of Mr Dicello.

1. The matter was listed for conciliation on 13 February 2018, however the conciliation could not take place as neither Mr Dicello, nor his representative named on his Form F2 – Application for unfair dismissal remedy, Mr Marcello Mastroianni, could be contacted.

1. On 22 February 2018, directions were issued by the Commission. Mr Dicello was directed to file submissions in support of his application for an extension of time by 5 March 2018 and Gullaci were directed to file submissions outlining its objections by the same day. Gullaci filed its submissions as per the directions, however Mr Dicello did not file any material.

1. On 5 March 2018, the Commission attempted to contact Mr Mastroianni by telephone regarding Mr Dicello’s failure to file submissions. A voicemail message was left stating that Mr Dicello’s submissions were now overdue and a return call was requested as soon as possible.

1. On 6 March 2018, the Commission again attempted to telephone Mr Mastroianni regarding Mr Dicello’s failure to file submissions. A further voicemail message was left requesting that Mr Mastroianni return the Commission’s call as soon as possible. He did not return the Commission’s call. An email was subsequently sent to Mr Mastroianni and Mr Dicello stating that submissions were now overdue. This email advised that if the Commission did not receive a response by 2.00pm 7 March 2018, the matter would be listed for a non-compliance hearing on 9 March 2018. The Commission did not receive a response to the correspondence.

1. On 7 March 2018 a voicemail message was left for Mr Mastroianni advising the matter would be listed for a non-compliance hearing on 9 March 2018 and a Notice of Listing was sent to both Mr Dicello and Mr Mastroianni by email.

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1. On 9 March 2018, a non-compliance hearing proceeded before Deputy President Colman. Mr Dicello and Mr Mastroianni could not be contacted for the hearing. Gullaci was represented by Mr Brendan Charles of Sparke Helmore Lawyers. Mr Charles made an oral application pursuant to s.399A of the Act that the matter be dismissed due Mr Dicello’s failure to comply with the direction of the Commission. The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted Gullaci’s oral application.

1. Following the non-compliance hearing, correspondence was sent to Mr Mastroianni and Mr Dicello by email advising them of Gullaci’s 399A application on 13 March 2018. Mr Dicello was directed to file submissions and other documentary material in respect of the s.399A application close of business 20 March 2018. This correspondence stated that if the Commission did not receive a response, Mr Dicello’s application for relief from unfair dismissal would be dismissed.

1. To date, Mr Dicello has not filed any material with the Commission.

1. 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.

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

1. As Mr Dicello did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

1. The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Dicello has failed to respond to numerous attempts made by the Commission to contact him. Apart from initially filing his application, Mr Dicello has shown no willingness to prosecute his case and has provided no explanation to the Commission for either his failure to comply with directions or his failure to attend the non-compliance hearing.  In these circumstances, I am persuaded that I should exercise my discretion under under s.399A and dismiss Mr Dicello’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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