Nathan Salvemini v The Trustee for the Heron Family Property Trust & Oths T/A Auscare Retirement Community

[2017] FWC 3174

[2017] FWC 3174

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nathan Salvemini
v
The Trustee for the Heron Family Property Trust & Oths T/A Auscare Retirement Community
(U2017/3390)

COMMISSIONER PLATT ADELAIDE, 9 JUNE 2017

Application for an unfair dismissal remedy – failure to participate in proceedings – s.399A application – application dismissed.

[1] This decision deals with an application by the Trustee for the Heron Family Property Trust and Others T/A Auscare Retirement Community (Auscare), pursuant to s.399A of the Fair Work Act 2009 (the Act) to dismiss an unfair dismissal application lodged by Nathan Salvemini on 29 March 2017.

[2] Mr Salvemini's application was listed for conciliation by the Commission on 24 May 2017 but did not proceed as Mr Salvemini did not attend.

[3] On 24 May 2017, the Conciliator advised the parties in writing that a further Conciliation Conference would be conducted if a request was received within 2 working days. No request was received. The application was then referred to me for determination.

[4] On 30 May 2017, the parties were sent a notice that the matter was listed for a directions conference at 1.00pm on 2 June 2017. On 1 June 2017, the time of the conference was varied to 10.00am. Mr Heron attended on behalf of Auscare. Mr Salvemini did not attend, despite follow up by telephone and email.

[5] On 2 June 2017, the parties were sent a notice that the matter would be listed for directions at 9.30am on 9 June 2017, and informed that if they failed to attend the matter may proceed in their absence.

[6] At 9.30am on 2 June 2017, Mr Heron attended on behalf of Auscare. Mr Salvemini did not attend, despite follow up by telephone. At 9.35am the matter proceeded in the absence of Mr Salvemini. Mr Heron asked me to dismiss the matter pursuant to s.399A of the Act as a result of the failure to attend by Mr Salvemini.

[7] Section 399A states:

“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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.”

Findings

[8] The Commission’s communications were directed to Mr Salvemini using the contact details provided within his application. It is clear to me that the failure of Mr Salvemini to respond to the directions and attend conferences satisfies the requirements of s.399A(1)(a) and (b) of the Act.

[9] In my view, Mr Salvemini’s conduct is unreasonable. In short, he has failed to prosecute his application after it was lodged.

[10] Mr Salvemini’s application is dismissed pursuant to s.399A of the Act. An Order 1 to this effect will be issued.

COMMISSIONER

Appearances:

Mr J.Heron on behalf of the Respondent.

Hearing details:

2017.

Adelaide:

9 June.

 1   PR593648

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<Price code A, PR593647>