Mattiajon Moretti v Allens Hoists Pty Ltd
[2022] FWC 2185
•18 AUGUST 2022
| [2022] FWC 2185 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mattiajon Moretti
v
Allens Hoists Pty Ltd
(U2022/5113)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 18 AUGUST 2022 |
Application for an unfair dismissal remedy – Application dismissed pursuant to s.399A of the Fair Work Act 2009.
On 5 May 2022, Mr Mattiajon Moretti made an application to the Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Respondent to this application is Allens Hoists Pty Ltd (the Respondent).
In his Form F2 – Unfair Dismissal Application (Form F2), Mr Moretti provided a mobile number and an email address, both of which have been used by the Commission throughout the conduct of this matter. On no occasion has an email sent from the Commission to Mr Moretti received a response that it was “undeliverable”.
Mr Moretti was initially represented by Mr Stephen Gaffney of Unfair Dismissal Experts Pty Ltd (UDE). On 1 June 2022, Mr Gaffney sent an email to the Commission querying whether it was possible for the listed telephone conciliation to be rescheduled to another time. On 2 June 2022, the Commission sent correspondence to Mr Gaffney and Mr Moretti advising that Mr Gaffney’s request for an adjournment was refused and confirming the telephone conciliation will proceed, as listed, at 9.15am on 3 June 2022. At 9:22am on 3 June 2022, Mr Gaffney sent an email to the Commission advising that UDE had ceased to act for Mr Moretti and attaching a Form F54 - Notice that lawyer or paid agent has ceased to act for a person. The telephone conciliation did not proceed on 3 June 2022 because Mr Moretti was not prepared to go ahead at that time, having been unaware that UDE were intending to cease to act for him, and had in fact ceased to act for him.
On 20 June 2022, the Commission sent an email to Mr Moretti’s nominated email address seeking advice as to whether he consented to a second conciliation. Mr Moretti sent an email in reply on 23 June 2022 confirming that he did.
On 24 June 2022, a Notice of Listing was sent to the parties scheduling a second telephone conciliation before a Commission staff member for 14 July 2022 at 9.15am. On 11 July 2022, three days prior to the second conciliation, Mr Moretti telephoned the Commission querying why UDE had ceased representing him and whether the Commission would arrange a representative for him. Mr Moretti was advised to speak to UDE for clarification as to why they ceased to act for him
The telephone conciliation did not proceed on 14 July 2022 because Mr Moretti was not contactable at the appointed time. The matter was then allocated to me.
On 21 June 2022, an email was sent from my Chambers to the parties at 10.48am scheduling a mention to take place by telephone at 4.00pm on 22 July 2022. Mr Moretti’s nominated email address was used. It was also communicated in the email that a Notice of Listing confirming the details of the mention would be issued, together with Directions setting out when the parties were required to file their material for the further conduct of the unfair dismissal application. The Notice of Listing and accompanying Directions were subsequently sent to Mr Moretti’s nominated email address and a further email was sent from my Chambers to the parties at 12.18pm, attaching the Directions dated 21 July 2022.
The mention took place before me at 4.00pm on 22 July 2022. Mr Moretti could not be contacted, despite three attempts to call him on the mobile telephone number listed in his Form F2 and the leaving of two voice messages. I confirmed with the Respondent that it had received the Directions and advised that compliance with them was required.
In accordance with the Directions, Mr Moretti was required to file and serve his material by no later than 3.00pm on 9 August 2022. When no material had been received from Mr Moretti by that time, an email was sent by my Chambers to Mr Moretti’s nominated email address at 3.48pm on 9 August 2022. It outlined that because he had not complied with the Directions, the matter was listed for a non-compliance hearing by telephone on 10 August 2022 at 3.00pm. A Notice of Listing was subsequently sent to the parties via email, and they were requested to provide their telephone numbers in advance to ensure they could be contacted for the non-compliance hearing. Further, a text message was sent to Mr Moretti’s nominated mobile phone number advising him that the Commission had sent him email correspondence in relation to his unfair dismissal and that a non-compliance hearing had been scheduled for 3.00pm on 10 August 2022.
The non-compliance hearing took place before me on 10 August 2022 at 3.00pm. Mr Moretti could not be contacted, despite three attempts to call him on the mobile telephone number listed in his Form F2 and the leaving of two voice messages. At the non-compliance hearing, the Respondent made an oral application pursuant to s.399A of the Act for the matter to be dismissed due to Mr Moretti’s failure to attend the Mention on 22 July 2022, his failure to comply with the Directions of the Commission requiring him to file material and his non-attendance at the non-compliance hearing on 10 August 2022. I waived compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s oral application.
Immediately following the non-compliance hearing, correspondence was sent to Mr Moretti’s nominated email address advising him of the Respondent’s s.399A application. Mr Moretti was directed to file submissions explaining why he had failed to attend the second telephone conciliation on 14 July 2022, the mention on 22 July 2022 and the non-compliance hearing on 10 August 2022 and further, why he had not complied with the Directions made on 21 July 2022 requiring him to serve his material by 3.00pm on 9 August 2022. It was outlined that a response was required by no later than 9.00am on 18 August 2022 and if the Commission did not receive a response, the s.399A application would be determined based on the material currently before the Commission. Mr Moretti was cautioned that in the absence of a response, his unfair dismissal application would likely be dismissed without further notice.
As at 9.00am on 18 August 2022, Mr Moretti has not filed any material with the Commission in response.
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.
Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.
As Mr Moretti did not file any material in opposition to the application to dismiss, I will determine the s.399A application on the papers.
The power to dismiss an application if the non-compliance was unreasonable is discretionary. As mentioned above, the Commission has at all times used the phone number and email address provided by Mr Moretti in its attempts to contact him. Mr Moretti has been wholly unresponsive since the file has been allocated to me and since filing his unfair dismissal application, has had numerous opportunities to engage with the Commission’s processes and prosecute his case. He has not taken these up. Mr Moretti has failed to actively prosecute his case and has provided no explanation to the Commission for either his continued failure to comply with the Directions requiring him to file material or his failure to attend the second telephone conciliation on 14 July 2022, the mention on 22 July 2022 and the non-compliance hearing on 10 August 2022.
In the circumstances of this matter, I am satisfied that Mr Moretti has acted unreasonably and that I should exercise my discretion under s.399A to dismiss his unfair dismissal application. This ends Mr Moretti’s unfair dismissal application.
An Order to this effect will be issued with this Decision.
DEPUTY PRESIDENT
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