Mr Sebastian Masone v Maestro Group Building & Development Pty Ltd

[2023] FWC 455

[2023] FWC 455

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.773 - Application to deal with an unlawful termination dispute

Mr Sebastian Masone
v

Maestro Group Building & Development Pty Ltd

(C2022/5390)

DEPUTY PRESIDENT CROSS SYDNEY, 24 FEBRUARY 2023

Application to deal with an unlawful termination dispute

1. Mr Sebastian Masone (the Applicant) was terminated from his employment with Maestro Group Building & Development Pty Ltd (the Respondent) on 28 July 2022. The Applicant filed an application to deal with an unlawful termination dispute pursuant to s.773 of the Fair Work Act 2009 (Cth) (the Act) on 30 July 2022 (the Application).

1. On 15 August 2022, the Respondent filed a response (the Response) to the Application alleging that there was no employment contract for the Applicant as the Applicant came to site for a trial and refused to complete the assigned tasks and left at his own accord after about approximately 15 minutes on site on 28 July 2022. The response further noted that the Applicant has commenced proceedings in the Local Court of New South Wales.

Relevant Facts and Directions

1. On 1 September 2022, the following correspondence was sent to the Applicant from Vice President Catanzariti’s Chambers:

Dear Mr.Masone,

C2022/5390 - Mr Sebastian Masone v Maestro Group Building & Development Pty Ltd

I am writing to you in relation to your application against Maestro Group Building & Development Pty Ltd (the respondent) and it has come to the Fair Work Commission’s attention that you may be lodging your matter against a National System Employer.

To be able to apply for an Unlawful Termination, the applicant has to have been working for an employer who is not considered to be a National System Employer. Please refer to the Fair Work Commission’s website on to find more information about Unlawful Termination.

Alternatively, you can click on the following link:

Unlawful termination | Fair Work Commission (fwc.gov.au).

If you believe Maestro Group Building & Development Pty Ltd is not a National System Employer and you wish to still continue with your claim against the respondent, please get in contact with me on my details below. Alternatively, if you believe they are in fact a National System Employer and you wish to discontinue this application, you may lodge an F50 – Notice of Discontinuance at your soonest convenience in response to this letter.

Please respond by 4:00 pm on Thursday the 8^th of September 2022.

1. On 5 September 2022, the following response from the Applicant was received by the Chambers of Vice President Catanzariti and was not copied to the Respondent:

To Vice President Catanzariti,

Regardless of the fact that the respondent may or not be a national system employer, I
am otherwise entitled to make an unlawful termination application due to the following
reasons:

1- I do not meet the minimum employment period required of either 6 months or 12
months to make a general protections dismissal application.

2- the reason for the termination was not a prohibited reason under section 772 of the
Fair Work Act 2009, which was bulling at the workplace.

For these reasons I believe that I do not qualify to make a general protections dismissal
application and instead I must make an application for unlawful termination.

Many thanks,
Sebastian Masone

1. On 14 September 2022, upon the matter being allocated to my Chambers for consideration, my Chambers issued a Notice of Listing for a Member Assisted Conciliation and Directions Hearing, for 10 October 2022.

1. On 4 October 2022, the following response from the Applicant was received by my Chambers and was not copied to the Respondent:

To DP, 04/10/2022

I am hereby requesting the matter of the 10 of October C2022/5390 Mr Sebastian Masone v
Maestro Group Building & Development Pty Ltd to be heard on the papers.

Firstly, the respondent's defence was lodged out of time as there was a 21 day limit to do so,
therefore the defence must be dismissed.

Secondly, and in any case I believe the respondent is not a National System Employer because
according to section 14 of the Fair Work Act 2009 the employer:

-is not a constitutional corporation
-is not the Commonwealth or a commonwealth authority,
-it does not employ flight crew officers, maritime or waterside workers.
-is not a body corporate.
-is not a person as defined by the above Act in section 12 as a constitutional corporation according to section 51(xx) of the Commonwealth of Australia Constitution Act, it is merely a Pty Ltd.

For these reasons I believe that I am enitled to make an unlawful termination application as the
respondent is not a National System Employer.

Also, I am entitled to make an unlawful termination application due to the following
reasons:

1- I do not meet the minimum employment period required of either 6 months or 12
months to make a general protections dismissal application.

2- the reason for the termination was not a prohibited reason under section 772 of the
Fair Work Act 2009, which was bulling at the workplace.

For these reasons I believe that I do not qualify to make a general protections dismissal
application and instead I must make an application for unlawful termination.

Many thanks,
Sebastian Masone.

1. On 7 October 2022, the Respondent filed a duplicate copy of their Response in this matter copying the Applicant.

1. On 9 October 2022, the following response from the Applicant was received by the Chambers of Vice President Catanzariti, copied to the Respondent:

In reply to the Respondent's submissions filed on Friday 07 October 2022,

I say that the respondent's submissions and evidence are not related to the jurisdictional objection raised and they do not prove that the respondent is a National System Employer.
I maintain that the respondent is not a national system employer because they do not meet the definition of a national system employer as it was explained and filed with the FWC on 04/10/2022. This material will be filed with the FWC and serve on the respondent before 14/10/2022.

Many thanks,
Sebastian Masone.

1. On 10 October 2022, as neither party attended the Member Assisted Conciliation and Directions Hearing, the following email was sent from my Chambers to the parties:

Dear Parties,

I note that neither party attended the Commission Listing in the above matter.

Chambers has received a document in this matter from the Applicant, referred to as a “reply.” In that document, the Applicant indicates that the Respondent’s “defence” was not filed within a 21 day period. I advise that this apparent lateness does not preclude consideration of that document, and consideration of such document is a matter for the Commission. I further note that in the reply, the Applicant has said “Secondly, and in any case I believe the respondent is not a National System Employer because…the employer…is not a person defined by the above Act in section 12 as a constitutional corporation…” In light of the Applicant’s acceptance that the Respondent is “a Pty Ltd” company the Applicant is required to advise Chambers as to how it says that the Respondent is not a Constitutional Corporation, when it is apparently incorporated in accordance with Commonwealth corporations law.

A response to the above query, as well as an explanation for the Applicant’s non-attendance, is required by no later than 4:00pm 13 October 2022.

The Applicant is advised that a failure to attend Commission listings, and/or comply with directions of the Commission may result in your matter being dismissed.

1. On 10 October 2022, the following email from the Applicant was received by my Chambers, copied to the Respondent:

To Chambers,

I was unable to join today's meeting as I could not get access to a pc with recording capabilities. I request the Commission to give me a call on 0478 960 702 as it's the only way that I have to join the meeting.

1. On 12 October 2022, the following correspondence from the Applicant was received by my Chambers and was not copied to the Respondent:

To Ms Samantha Marshall

As I stated in my letter on 04/10 the fact that the respondent may or may not be a NSE is irrelevant because I do not meet the minimum employment period required to make neither an unfair dismissal application nor a general protections dismissal application, hence the only possible outcome is to continue with my unlawful termination application.

Many thanks,
Sebastian Masone.

1. On 21 October 2022, the following email was sent from my Chambers to the parties:

Dear Parties,

I note that Chambers is aware that the parties have separately emailed and/or called the Commission. I note that some correspondence has also been directed to the Chambers of Vice President Catanzariti. You are advised that:

·   all correspondence with the Commission is to only be sent to [email protected]; and

·   all correspondence with the Commission is to copy in the other parties to the matter, otherwise it will not be read; and

·   Chambers requires parties to email any queries, rather than call, in accordance with the Practice note: Fair hearings | Fair Work Commission (fwc.gov.au), except in the circumstances outlined in that Practice Note.

Given that some correspondence to the Commission appears to have been sent to the incorrect Chambers, and/or did not copy in the other side, the Applicant is required to confirm in reply to this email, by 4:00pm on 25 October 2022 the matters raised in Chambers’ email to the parties of 11:26AM on 10 October 2022. For clarity, the Applicant is required to advise the Commission, by 4:00pm on 25 October 2022 the following:

1.   the Applicant is to advise the Commission how it says that the Respondent is not a Constitutional Corporation, when it is apparently incorporated in accordance with Commonwealth corporations law; and

2.   an explanation for the Applicant’s non-attendance.

1. On 1 November 2022, the following email from the Applicant was received by my Chambers, copied to the Respondent:

To FWC

A date for the hearing of this matter must be set as too much time has passed since the lodgment of my application.

You must take into cosideration that the respondent terminated me for prohibited reasons which has caused me serious hardship. I am demanding compensation pursuant to the FWA 2009 for the loss of my employment.
I demand to have my case heard this Thursday 10/11/2022 at 2pm, and to be called on my cellphone at 0478960702 due to not having access to a pc with recording capabilities.

Many thanks,
Sebastian M.

1. On 10 November 2022, the following email from the Applicant was received by my Chambers, copied to the Respondent:

To FWC,

Pursuant to section 392 of the Fair Work Act 2009 I will be claiming compensation for lost pay equal to the remuneration that I would have earned if I had never been terminated.

Many thanks,
Sebastian Masone.

1. On 8 December 2022, the following email was sent from my Chambers to the parties:

Dear Mr Masone,

I advise that no response has been received in respect of the below two questions, being:

1.the Applicant is to advise the Commission how it says that the Respondent is not a Constitutional Corporation, when it is apparently incorporated in accordance with Commonwealth corporations law; and

2.an explanation for the Applicant’s non-attendance.

It is not appropriate for parties to demand a hearing date. You are required to respond to the above queries, and, in consideration of that response, the Deputy President will determine the next appropriate procedural steps.

1. On 14 December 2022, the following correspondence from the Applicant was received by my Chambers and was not copied to the Respondent:

To Chambers,

1-I believe the respondent is not a NSE if you disagree please state the reason why. If you say that it is incorporated then the judge would have to make that decision.
2- I am not able to attend to court for the following months and I have requested before that the decision is to be done on the papers.
Please do not ask me again about these questions as the answers will be the same.

I am demanding $300.000,00 dollars compensation for the loss of my employment as you already know.

Again the decision is to be done on the papers, i cannot attend court at the moment.

Many thanks
Sebastian Masone.

Relevant Legislation

1. Section 587 of the Act provides:

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.

Consideration

1. The words, “Without limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act, establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

1. In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

DEPUTY PRESIDENT

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