Max Cannavo v Wilmore Nominees Pty Ltd T/A GA Perry

[2020] FWC 3307

[2020] FWC 3307

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Max Cannavo
v
Wilmore Nominees Pty Ltd T/A GA Perry
(U2020/2148)

DEPUTY PRESIDENT BINET PERTH, 29 JUNE 2020

Application for an unfair dismissal remedy - failure to comply with Directions – application to dismiss pursuant to s.399A – application dismissed

[1] On 25 February 2020, Mr Max Cannavo (Mr Cannavo) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (Commission) alleging he was unfairly dismissed by Wilmore Nominees T/A GA Perry (Wilmore Nominees).

[2] On 20 March 2020, Wilmore Nominees informed the Commission that they wished for the Application to be allocated directly to a Member of the Commission and they did not wish to participate in conciliation with a Staff Conciliator.

[3] As such, the Application was then allocated to my Chambers for determination.

[4] On 31 March 2020, the parties were directed to provide their availability to participate in a conciliation conference before me.  On 1 April 2020, Wilmore Nominees requested the matter be adjourned until May pending the outcome of a Police investigation related to Mr Cannavo’s dismissal. Mr Cannavo did not respond to this correspondence.

[5] On 28 April 2020, the parties were again directed to provide their availability to participate in a conciliation conference before myself.  Mr Cannavo failed to respond to this email.

[6] On 15 May 2020, the parties were issued with Directions which required Mr Cannavo to file and serve on Wilmore Nominees by Friday, 22 May 2020 submissions and evidence in relation to the merits of his application (Directions). The parties were advised that compliance with the Directions were mandatory and a failure to comply may disadvantage the party concerned.

[7] Mr Cannavo failed to file any materials in accordance with the Directions.

[8] On 28 May 2020, Wilmore Nominees filed with Chambers and served on Mr Cannavo an application for the matter to be dismissed pursuant to section 399A of the FW Act. Wilmore Nominees submitted that the Application should be dismissed pursuant to section 399A on the grounds that Mr Cannavo unreasonably failed to comply with a direction of the Commission when he failed to file his materials in accordance with the Directions (Dismissal Application).

[9] On 4 June 2020, Mr Cannavo was invited to file submissions and supporting evidence as to why the Application should not be dismissed by 4pm on Monday 8 June 2020.

[10] On 8 June 2020 Mr Cannavo sent a short email to Chambers stating that his email had been ‘hacked’ and provided this as the reason his failure to respond to earlier correspondence or comply with Directions. Mr Cannavo also noted that he would like to progress his application.

[11] On 10 June 2020, Chambers directed that Mr. Cannavo provide evidence of the computer difficulties he experienced and to file the materials as set out in the Directions sent to Parties on 15 May 2020, by no later than 15 June 2020. As at the date of this Decision Mr Cannavo has not filed any materials.

[12] Section 399A of the FW Act provides:

“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.

Note 1: for other power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: the FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.”

[13] Mr Cannavo failed to file the materials he was directed to file by the dates specified in the Directions or at all. Mr Cannavo failed to seek an extension to file his materials or provide evidence of the reasons for failing to do so. As at the date of this decision Mr Cannavo has still not filed any materials in support of his Application or any evidence in opposition to the Dismissal Application. I am satisfied that Mr Cannavo has unreasonably failed to comply with Directions of the Commission relating to this Application.

[14] On application of Wilmore Nominees and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application. An order to this effect [PR720453] will be issued with this decision.

DEPUTY PRESIDENT

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