Ms Monique Vigliarolo v Valley Park Farm Pty Ltd
[2022] FWC 1863
•18 JULY 2022
| [2022] FWC 1863 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Monique Vigliarolo
v
Valley Park Farm Pty Ltd
(U2022/3770)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 18 JULY 2022 |
Application for an unfair dismissal remedy – Application dismissed pursuant to s.399A of the Fair Work Act 2009.
On 30 March 2022, Ms Monique Vigliarolo 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 Valley Park Farm Pty Ltd (the Respondent).
In her Form F2 – Unfair Dismissal Application (Form F2), Ms Vigliarolo 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 Ms Vigliarolo received a response that it was “undeliverable”.
On 28 April 2022, a Notice of Listing was sent to the parties scheduling a telephone conciliation before a Commission staff member to take place on 25 May 2022 at 9.15am. The matter did not resolve at the telephone conciliation and the matter was allocated to me on 20 June 2022.
On 21 June 2022, an email was sent from my Chambers to the parties scheduling a Hearing to take place by Video using Microsoft Teams at 10:00am on 19 July 2022. Ms Vigliarolo’s nominated email address was used. It was communicated in the email that a Notice of Listing confirming the details of the Hearing would be issued along with Directions setting out when the parties were required to file their material. The Notice of Listing and accompanying Directions were subsequently sent to Ms Vigliarolo’s nominated email address.
In accordance with the Directions, the Respondent filed and served its material on 1 July 2022. Ms Vigliarolo was directed to file and serve her material by no later than 3.00pm on 12 July 2022.
No material was received from Ms Vigliarolo by 3.00pm on 12 July 2022. At 4.32pm on 13 July 2022, an email was sent by my Chambers to Ms Vigliarolo’s nominated email address outlining that she had not complied with the Directions and advising that should she not file and serve her material in accordance with the Directions by 9.00am on 14 July 2022, the matter would be listed for a non-compliance hearing by telephone on 14 July 2022 at 4.00pm.
No response nor material was received from Ms Vigliarolo by 9.00am on 14 July 2022.
At 11.23am on the same day, an email was sent by my Chambers to advise that the matter would be listed for a non-compliance hearing by telephone at 4.00pm that day. A Notice of Listing was subsequently sent to the parties via email, and they were requested to provide their telephone numbers in advance so that they could be contacted for the non-compliance hearing.
The non-compliance hearing took place before me on 14 July 2022 at 4.00pm. Ms Vigliarolo could not be contacted, despite three attempts to call her on the mobile telephone number listed in her Form F2 and the leaving of two voice messages. At the hearing, the Respondent made an oral application pursuant to s.399A of the Act for the matter to be dismissed due to Ms Vigliarolo’s failure to comply with the Directions of the Commission requiring her to file material and her non-attendance at proceedings before me. 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 Ms Vigliarolo via email advising her of the Respondent’s s.399A application. Ms Vigliarolo was directed to file submissions explaining why she had failed to attend the non-compliance hearing on 14 July 2022 and why she had not complied with the Directions made on 21 June 2022 requiring her to serve her material by 3.00pm on 12 July 2022. Further, it was outlined that her response was required by no later than 9.00am on Monday, 18 July 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. Finally, Ms Vigliarolo was cautioned that in the absence of a response, her unfair dismissal application would likely be dismissed without further notice.
To date, Ms Vigliarolo has not filed any material with the Commission in response.
Respondent’s objections
On 5 May 2022, the Respondent filed a Form F3 – Employer Response to application for an Unfair Dismissal Remedy (Form F3). In it, the Respondent objected to the application on the basis that the application was lodged out of time and on the basis that Ms Vigliarolo has not served the minimum employment period of six months such that she is not a person who is protected from unfair dismissal, as required by s.382 of the Act. It is not disputed, and I am satisfied on the basis of the evidence before me, that Ms Vigliarolo was notified of her dismissal on 25 March 2022 and it took effect on that day. Section 394(2)(a) of the Act states that an application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”. As such, Ms Vigliarolo had until midnight on 15 April 2022 to make an unfair dismissal application within time. Ms Vigliarolo filed her Form F2 with the Commission by way of email sent at 3.03pm on 30 March 2022. Accordingly, I am satisfied that Ms Vigliarolo’s unfair dismissal application was made within 21 calendar days of her dismissal taking effect.
The date of the commencement of Ms Vigliarolo’s employment appeared to be in dispute. In its Form F3, the Respondent asserted that Ms Vigliarolo began working for it in November 2022. In her Form F2, Ms Vigliarolo outlined that her employment commenced in August 2021. The Respondent submitted payslips issued to Ms Vigliarolo from 15 November 2021 to 21 March 2022. The payslips indicate that Ms Vigliarolo was paid from 8 November 2021 to 20 March 2022, being the final day she was paid for the performance of work. As such, it appears that Ms Vigliarolo was employed by the Respondent from 8 November 2021. As the Form F3 indicates the Respondent had 90 employees at the time Ms Vigliarolo’s employment was terminated, Ms Vigliarolo was required to serve a minimum employment period of six months pursuant to s.383 of the Act. The payslips produced by the Respondent appear to confirm that Ms Vigliarolo had not completed the required minimum employment period in order to be protected from unfair dismissal.
s.399A
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 Ms Vigliarolo did not file any material in opposition to the application to dismiss, I will determine the application on the papers.
The power to dismiss an application if the non-compliance was unreasonable is discretionary. Other than initially filing her application and attending the staff conciliation, Ms Vigliarolo has otherwise failed to actively prosecute her case and has provided no explanation to the Commission for either her continued failure to comply with the Directions requiring her to file material or her failure to attend the non-compliance hearing on 14 July 2022. Ms Vigliarolo has had numerous opportunities to engage with the Commission’s processes and prosecute her case but has not taken these. In any event, as I have observed above, it would seem that Ms Vigliarolo did not complete the requisite minimum employment period in order to be a person protected from unfair dismissal.
In the circumstances of this matter, I am satisfied that Ms Vigliarolo has acted unreasonably and that I should exercise my discretion under s.399A and dismiss her unfair dismissal application. This ends Ms Vigliarolo’s unfair dismissal application.
An Order to this effect will be issued with this Decision.
DEPUTY PRESIDENT
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