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

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

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved Nathan Salvemini, who sought an unfair dismissal remedy against The Trustee for the Heron Family Property Trust trading as Auscare Retirement Community. Salvemini alleged he was unfairly dismissed from his employment. The dispute was heard by the Fair Work Commission, presided over by Deputy President K. M. O’Malley. The central issue the court needed to resolve was whether Salvemini's failure to participate in the proceedings, as mandated by section 399A of the Fair Work Act 2009, justified dismissing his application for an unfair dismissal remedy.

The court focused on Salvemini's non-compliance with the procedural requirements set out in section 399A, which mandates the applicant to participate in the proceedings. Salvemini did not attend the scheduled hearings and did not provide any evidence or arguments in support of his claim. The court examined the reasons for his absence and considered whether his failure to participate was due to exceptional circumstances. It was noted that Salvemini had been served with all relevant documents and had the opportunity to participate but chose not to. The court concluded that his absence without any justifiable reason or exceptional circumstances warranted the dismissal of his application.

In light of the findings, the court dismissed Salvemini's application for an unfair dismissal remedy. The court found that the failure to participate in the proceedings as required by section 399A of the Fair Work Act was a significant procedural defect that could not be overlooked. Consequently, the application was dismissed, and no unfair dismissal remedy was granted to Salvemini. The decision emphasised the importance of complying with procedural requirements to ensure fair and just outcomes in employment disputes.

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

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established