Mario Marino v Weston Transport

[2021] FWC 4968

[2021] FWC 4968

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mario Marino
v
Weston Transport
(U2021/4841)

COMMISSIONER BISSETT MELBOURNE, 13 AUGUST 2021

Application for an unfair dismissal remedy.

[1] On 3 June 2021 Mr Mario Marino made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Marino alleged he was unfairly dismissed by Weston Transport (the Respondent) on 14 May 2021.

[2] The application did not provide an email address for the Respondent. On 4 June 2021 the Commission contacted the Respondent by telephone to attempt to obtain an email address for service of the application. The Respondent contact, Mr Paul Weston, advised the Commission that Weston Transport was not the employer, would not be supplying an email address and would not be responding the application.

[3] On 15 June Mr Marino was contacted by the Commission via telephone. He confirmed that Weston Transport was the correct employer entity. Later that day Mr Weston was contacted via telephone. During the call Mr Weston confirmed that Weston Transport paid Mr Marino’s wages and that he would be in touch with the Applicant before terminating the call.

[4] On 15 June 2021 correspondence was issued by the Commission serving the application on the Respondent by Express Post and listing the matter for conciliation before a Commission staff conciliator on 30 June 2021.

[5] On 23 June 2021 Mr Weston contacted the Commission via telephone. During this call, he stated that Mr Marino was a contractor and should have lodged his application against an entity other than Weston Transport.

[6] On 25 June 2021 Mr Marino was contacted by the Commission to confirm his contact details for the listed conciliation. During this call, Mr Marino stated that he wished for his application to be brought against “Mr Kevin Pete of Holcim”. Mr Marino stated that it was Holcim who dismissed him and that he had worn a Holcim uniform.

[7] Later that Mr Weston of the Respondent contacted the Commission and said that he wanted no further communication from Commission unless a court order was produced. He advised the correct employer was Holcim that the Respondent would not participate in conciliation and reiterated that he would no longer respond to the Commission regarding this matter. The conciliation was therefore cancelled and the file referred to my chambers for further allocation.

[8] Due to extensive notes on the file detailing the various telephone conversations between the Commission and the Applicant, and the apparent confusion regarding the correct employer entity, a telephone mention with the Applicant was convened before me on 30 June 2021. During the mention Mr Marino confirmed the correct employer entity was Weston Transport. With no email address for the Respondent on the file despite several requests, correspondence was sent to the Respondent by Express Post on 1 July 2021. This correspondence resupplied the Form F2 and provided a Form F3 Employer Response to be returned by post (or email, if the Respondent elected to provide an email address). The correspondence informed the Respondent of the Commission’s view that Weston Transport was at all times the correct employer entity. It also warned that if the Respondent did not comply, a decision may be issued in relation to the application for unfair dismissal in the absence of any submissions from the Respondent. No response was received from the Respondent.

[9] On 22 July 2021, my chambers issued Directions to the parties (again sent to the Respondent by Express Post) which required the Applicant to file his submissions and evidence with the Commission and serve these on the Respondent in relation to the merits of his application by 4.00pm 9 August 2021. The Respondent was provided with a filing date of 23 August 2021 and the application listed for a hearing before me on 30 August 2021.

[10] Mr Marino failed to file any material by the date specified in the Directions. As such, on 10 August 2021 my chambers emailed Mr Marino extending the time for him to file his material to 4.00 pm on Tuesday 11 August 2021. The correspondence warned that a failure to provide this material may lead to his application being dismissed without further notice.

[11] Mr Marino has not replied to the correspondence from my chambers and has not complied with the directions issued.

[12] Section 587(1) of the FW Act provides that:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[13] Due to his non-compliance with the Directions of the Commission, Mr Marino has failed to prosecute his application and has, in this respect, disengaged with his application.

[14] Section 587 of the FW Act provides the Commission with a broad power to dismiss an application made to the Commission. The power may be exercised on application on the Commission’s own initiative. That power is also not limited to the circumstances in s.587(1). This much is evident from the opening words “[w]ithout limiting when the FWC may dismiss an application….” Which makes it abundantly clear that the Commission may dismiss an application in other relevant circumstances.

[15] In this case Mr Marino has been given adequate opportunity to file his material with the Commission. He has ceased to respond to Commission correspondence in circumstances where he was aware the Commission could determine the application even if the Respondent did not provide submissions. In these circumstances I am satisfied that I should dismiss the application of Mr Marino for a failure to prosecute his application. The application is therefore dismissed pursuant to s.587(1) of the FW Act. An order 1 to this effect will be issued with this decision.

COMMISSIONER

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