Mr Giuseppe Carpinteri v Marchese Excavations and Bin Hire Pty Ltd T/A Marchese Excavations & Bin Hire

[2022] FWC 343

[2022] FWC 343

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Giuseppe Carpinteri
v

Marchese Excavations And Bin Hire Pty Ltd T/A Marchese Excavations & Bin Hire

(U2021/10721)

COMMISSIONER O'NEILL MELBOURNE, 21 FEBRUARY 2022

Application for an unfair dismissal remedy

1. Mr Giuseppe Carpinteri lodged an unfair dismissal application on 24 November 2021.

1. The application was originally listed for conciliation by a Commission staff conciliator on 27 January 2022. The conciliation was not able to take place as the Applicant’s representative advised that the Applicant was uncontactable.

1. On 31 January 2022, the staff conciliator emailed the parties and sought confirmation as to whether Mr Carpinteri wished to proceed with his application. The Applicant’s representative replied on 2 February 2022 advising that he hadn’t been able to contact the Applicant. The file was then allocated to me.

1. On 4 February 2022, a Notice of Listing and Directions were issued for a Mention on 9 February 2022.  The Directions also required Mr Carpinteri to send the Commission and the Respondent a copy of his submissions, witness statements and any other documentary evidence he relies on to support his application by 4:00pm Friday, 18 February 2022.

1. On 8 February 2022, my associate sent an email to the parties reminding them of the Mention. The Applicant’s representative replied that they would not be attending and that they would file a Form F54 Notice of a representative ceasing to act, in due course.

1. On 9 February 2022, multiple unsuccessful attempts were made to contact the Applicant by telephone at the commencement of the Mention. There was no option to leave a voice message.

1. During the Mention, the Respondent made an oral application to have the matter dismissed under section 399A of the Fair Work Act 2009 (the Act).

1. On 9 February 2022, Mr Carpinteri was informed of the Respondent’s application and was advised that his unfair dismissal application may be dismissed without further notice should he fail to respond by Wednesday, 16 February 2022. To date, the Applicant has not responded to the multiple attempts to communicate with him.

1. Whilst the s.399A application was not made in an approved form, pursuant to s.586 of the Act, I waive the irregularity regarding the form in which the application was made. In addition, as the Applicant has not filed any material to oppose the application to dismiss, I have determined the application on the papers.

1. I am satisfied that Mr Carpinteri has unreasonably failed to comply with the Directions of the Commission by failing to attend the Mention on 9 February and by failing to file material in support of his application by 4:00pm Friday, 18 February 2022.

1. Further, the Applicant has taken no steps to demonstrate that he wishes to pursue his unfair dismissal application against the Respondent.

1. In the circumstances, I exercise my discretion pursuant to s.399A(1)(a) of the Act to dismiss Mr Carpinteri’s unfair dismissal application. An order to this effect will be issued with this Decision.

COMMISSIONER

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