Mr Michael Spagnolo v Palin Investments Pty Ltd T/A Morley Ale House
[2012] FWA 6375
•1 AUGUST 2012
[2012] FWA 6375 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Michael Spagnolo
v
Palin Investments Pty Ltd T/A Morley Ale House
(U2012/5908)
COMMISSIONER CLOGHAN | PERTH, 1 AUGUST 2012 |
Unfair dismissal.
[1] On 12 March 2012, Mr Michael Spagnolo (“the Applicant”) made application to Fair Work Australia (FWA) alleging unfair dismissal from his employment with Palin Investments Pty Ltd T/A Morley Ale House (“the Employer”).
[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (“the FW Act”).
[3] Conciliation did not take place and the application was referred to me for arbitration on 11 April 2012.
[4] Procedural directions were issued on 12 April 2012 for a hearing on 12 June 2012.
[5] The hearing on 12 June 2012 was adjourned. Further procedural directions were issued on 13 June 2012 for a hearing on 19 July 2012.
[6] At the hearing on 19 July 2012, the Applicant failed to attend and the Employer requested that the application be dismissed for want of prosecution. In view of the circumstances leading up to the hearing date and the Applicant’s conduct, I agreed with the Employer’s request. These are my written reasons for dismissing Mr Spagnolo’s application.
RELEVANT BACKGROUND
[7] Mr Spagnolo’s employment was terminated by written notice on 27 February 2012. The signatories to the letter terminating Mr Spagnolo’s employment were Mr Peter Hearne, Director and Mr Albert Spagnolo who is both a Director and the Applicant’s father.
[8] For the purpose of these Reasons For Decision, it is notable that in the Employer’s shareholding, Mr Michael Spagnolo has a 10% shareholding and his father (Mr Albert Spagnolo) and mother (Mrs Jan Spagnolo) together have a 30% shareholding.
[9] Mr Peter Hearne and Mr Albert Spagnolo are the only directors of the Employer.
[10] Neither party complied with the procedural directions issued on 12 April 2012.
[11] On 11 June 2012, one day before the initial hearing, Mr Michael Spagnolo advised that his father, Mr Albert Spagnolo would be appearing as a witness on his behalf and that his mother, Mrs Jan Spagnolo was also available, by telephone, to be a witness.
[12] At the hearing on 12 June 2012, the Applicant represented himself and the Employer was represented by Mr Hearne.
[13] The hearing on 12 June 2012 went into conference and subsequently was adjourned.
[14] On 13 June 2012, I issued further procedural directions for a hearing on 19 July 2012.
[15] Following the issuance of the procedural directions, the Applicant, on the same day advised, “I was wandering (sic) if we could push everything back a month as I will not be in the country over the next 3 weeks” -- no mention of this arrangement was made on the previous day when I stated, in the hearing, that the application would be set down in approximately one month for hearing and determination.
[16] My Associate responded on the same day advising that all applications for adjournment are required, in the first instance, to be communicated to the Employer to enable the Employer to respond to any request.
[17] On 20 June 2012, the Employer, to the extent that it was able, complied with the procedural directions.
[18] On 17 July 2012, the Applicant emailed my Associate to advise that due to the fact that he was away, he had been unable to “seek advice, reconciliation nor comply with the rest (sic) of the procedural directions”.
[19] Further, the Applicant’s email of 17 July 2012 states:
“I have been in contact regarding legal advice and will still send in procedural directions. I am then to presume that a hearing is still scheduled for thursday 19th. I dont want to waste the commissioners time nor the offices of fair work. Nor any other parties time. It seems unreasonable to go ahead with the hearing on the above reasons. (as well as the fact that my son is unwell).”
[20] On the same day, 17 July 2012, my Associate emailed Mr Spagnolo as follows:
“The Commissioner advises that this matter will proceed on 19 July 2012 at 9:00 am and suggests that the Applicant prepares himself to proceed with his case that he was unfairly dismissed.”
[21] On 18 July 2012, the Applicant provided the following as “procedural directions”.
“On 27th Feb, 2012 I (Michael Spagnolo) was taken out of the pub off site and verbally terminated by Albert Spagnolo (50% director) after a meeting he had with Peter Hearne (50% director). I then had to request a termination letter. Which I did receive later that day with some conditions and alterations made to it and signed by the above two Directors. There were no reasons given for my termination.
The termination was harsh, unjust and unreasonable:
No reason was given for my termination.
There was no evidence to support a termination.
No warnings were issued, therefore no chance to either put my side forward or rectify any issues.”
[22] At 8:18 am on the date of the hearing (19 July 2012) which commenced at 9:00 am, Mr Michael Spagnolo telephoned my Associate to advise that he would not be attending the hearing as his son was sick and he had not been able to arrange a representative.
CONSIDERATION
[23] Part 3-2 of the FW Act deals with unfair dismissals.
[24] Some of the objects of the provisions in Part 3-2 of the FW Act, are to establish procedures concerning unfair dismissals that are:
● quick, flexible and informal; and
● address the needs of employers and employees (s.381 of the FW Act).
[25] The purpose of procedural directions are to ensure that a hearing into an application alleging unfair dismissal is conducted fairly, efficiently and effectively seeking a remedy for alleged unfair dismissal.
[26] While this application is somewhat unusual, the plain facts are that:
● the Applicant did not comply with procedural directions for the first hearing scheduled for 12 June 2012;
● the Applicant considered and provided approximately 10 typed lines one day before the second scheduled hearing setting out his case. Approximately 50% of the content of the purported “procedural directions” are assertions and not statements of fact; and
● the Applicant failed to appear at the second scheduled hearing into his application.
[27] At the time of the second scheduled hearing, it was approximately five (5) months after Mr Spagnolo’s dismissal. Such a time is relatively long and certainly does not satisfy the objective of expediency and the Employer’s desire for certainty.
[28] The manner in which the Applicant has conducted his application was neither prompt nor efficient. Further, and importantly, the Employer was unaware of the facts which Mr Spagnolo relied upon in alleging unfair dismissal. In contrast, the Employer set out in its response and documentary material why Mr Spagnolo was dismissed (and such reasons, prima facie, did not disclose any inherent unfairness).
[29] While FWA attempts to be accommodating regarding the scheduling of hearings, the Applicant’s requests became more opaque and implausible and appeared to consider the Tribunal attendance as voluntary.
[30] Where an applicant seeks the Tribunal to impose a remedy for alleged unfair dismissal by the employer, he or she should use due diligence in pursuing the claim; it is inequitable, unfair and contrary to the objects of the FW Act to let such a matter drift and activate only at their convenience. The Applicant was place on notice, by email correspondence from my Associate on 17 July 2012, that the burden of proof in establishing unfair dismissal rests on the Applicant.
[31] Having considered all the circumstances above, the Applicant’s lack of attendance on 19 July 2012 and the Employer’s request for the matter to be dismissed, I dismissed the application for want of prosecution. These are the reasons for my Order PR526563.
COMMISSIONER
Appearances:
No appearance by the Applicant.
Mr P Hearne, for the Employer.
Hearing details:
2012:
Perth,
19 July
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