Nathan Pedrotti v LeasePLUS

[2020] FWC 3363

[2020] FWC 3363

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nathan Pedrotti
v
LeasePLUS
(U2020/5656)

COMMISSIONER WILSON MELBOURNE, 1 JULY 2020

Application for an unfair dismissal remedy – s.399A application

[1] On 26 April 2020, Mr Nathan Pedrotti made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against LeasePLUS. Mr Pedrotti’s employment had been terminated on 8 April 2020.

[2] The matter was listed for conciliation on 18 May 2020 however the conciliation was vacated as LeasePLUS wished for their jurisdictional objection, that Mr Pedrotti had named the incorrect employer, to be dealt with in the first instance. Consequently, Directions were issued for the filing of material on the jurisdictional objection and the matter was listed for jurisdiction hearing on 19 June 2020.

[3] Mr Pedrotti was directed to file an outline of argument, any witness statements and other documentary material he wished to rely on by noon on 10 June 2020. Documents were received from Mr Pedrotti on 10 and 12 June 2020.

[4] On 15 June 2020, an email exchange occurred between my chambers and Mr Pedrotti on the subject of the jurisdictional objection raised by LeasePLUS. The correspondence from my chambers provided information on the jurisdictional objection and invited Mr Pedrotti to consider his position and to advise the Commission if he wished to pursue the application against LeasePLUS.

[5] My chambers emailed the parties on 16 June 2020 advising them that I had identified this matter as suitable for listing via remote access technology known as Microsoft Teams. All information was provided to enable parties to connect remotely for the hearing on 19 June 2020.

[6] Mr Pedrotti left a voicemail message on 16 June 2020 requesting he be called back. My chambers returned his call the same day and a message was left on Mr Pedrotti’s voicemail.

[7] The following day on 17 June 2020, Me Pedrotti left a further voicemail message requesting he be called back. My Associate emailed Mr Pedrotti to advise that we were in a hearing and unable to return his call at that time and he was invited to email my chambers with his enquiry.

[8] Shortly afterwards, Mr Pedrotti sent email correspondence to my Chambers raising questions on the process of commencing an application against a different respondent and the process for obtaining an extension of time to file an application. On the same day, my chambers replied to Mr Pedrotti providing procedural information on an extension of time and commencing multiple actions regarding his dismissal.

[9] On 18 June 2020, my chambers emailed parties requesting confirmation of participant details for the hearing on 19 June 2020. That afternoon, Mr Pedrotti emailed his contact details to my chambers.

[10] On 19 June 2020 at 9.35am, my chambers called Mr Pedrotti’s mobile number to commence the hearing. There was no answer and a voicemail message was left advising the hearing was ready to commence and requesting Mr Pedrotti join the hearing or to call chambers if he was experiencing any issues with joining the video hearing.

[11] A second call attempt was made to Mr Pedrotti at 9.37am, the call went straight through to voicemail and no voicemail message was left.

[12] At 9.39am, my chambers called Mr Pedrotti’s mobile number and a voicemail message was left advising the hearing was ready to commence and requesting Mr Pedrotti join the hearing or to call chambers if he was experiencing any issues.

[13] My chambers emailed Mr Pedrotti at 9.41am, advising the hearing was ready to commence and requesting he join the Microsoft Teams hearing as soon as possible.

[14] Finally, at 9.42am my chambers called Mr Pedrotti’s mobile number and a voicemail was left advising him the hearing was to commence and will proceed in his absence and that there was a risk of a s.399A application being made for his failure to attend.

[15] Mr Pedrotti did not attend the hearing.

[16] At the hearing, LeasePLUS made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Pedrotti had failed to attend the hearing. I waived compliance with the Fair Work Commission Rules 2013 and accepted LeasePLUS’s oral application.

[17] On 19 June 2020, Mr Pedrotti was sent correspondence via email informing him of the s.399A application. He was directed to file submissions and other documentary material in respect of LeasePLUS’s application by 4pm on 26 June 2020. Mr Pedrotti was advised that if he failed to comply with this direction, it was likely that his application would be dismissed without further notice.

[18] Mr Pedrotti did not file any material with the Commission.

[19] 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.

[20] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[21] As Mr Pedrotti did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[22] After considering all of the material, Mr Pedrotti’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued at the same time as this decision.

COMMISSIONER

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