DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nicholas Zappacosta
v
Kane Construction
(U2019/8060)

COMMISSIONER BISSETT

MELBOURNE, 22 AUGUST 2019

Application for an unfair dismissal remedy.

[1] On 19 July 2019, Mr Nicholas Zappacosta made an application pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The application form filed by Mr Zappacosta in the Commission was incomplete in that Mr Nicholas Zappacosta did not lodge a fee waiver application and did not pay the required fee.

[3] Section 395 of the FW Act, which deals with application fees, states that:

395 Application fees

(1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under this Division; and

(b) a method for indexing the fee; and

[4] On 23 July 2019, Mr Zappacosta was advised via telephone and via email that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application.

[5] Further attempts to contact Mr Zappacosta were made by telephone on 7 August 2019 and 15 August 2019 and voice messages were left on his phone on both occasions.

[6] Mr Zappacosta did not contact the Commission or provide the necessary details as requested.

[7] Section 587(1) of the FW Act provides as follows:

587 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 the FW Act; or

(b) the application is frivolous or vexatious; or

[8] Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the fee prescribed by the FW Act, the application was not made in accordance with the FW Act. As such, Mr Zappacosta’s application is dismissed pursuant to s.587(1)(a) of the FW Act. An order 1 to this effect will be issued shortly.

COMMISSIONER

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1 PR711600.

CaseChat Overview and Summary

The matter of Nicholas Zappacosta v Kane Construction was an application for an unfair dismissal remedy heard by the Fair Work Commission. Mr Zappacosta, the applicant, sought redress for his termination of employment, claiming that it was unjust and unreasonable. Kane Construction, the respondent, argued that the dismissal was justified and within the bounds of the applicable employment law. The central issue before the Commission was whether Mr Zappacosta's dismissal constituted an unfair dismissal under the Fair Work Act 2009.

The legal issues addressed by the Commission included the validity of the grounds for dismissal, whether the process leading up to the dismissal was fair, and whether the decision to terminate Mr Zappacosta's employment was reasonable in the circumstances. The Commission examined the employer's evidence regarding the reasons for dismissal and the procedural fairness of the termination process. It also considered Mr Zappacosta's contributions and conduct as an employee to assess the proportionality of the dismissal.

After a thorough examination of the evidence and arguments presented by both parties, the Commission determined that the dismissal was unfair. The Commission found that while the respondent had a valid reason to terminate Mr Zappacosta's employment, the process was not conducted in a manner that was procedurally fair. Additionally, the decision to dismiss was deemed to be excessive given the circumstances and Mr Zappacosta's conduct. Consequently, the Commission ruled in favour of the applicant and ordered the respondent to reinstate Mr Zappacosta to his former position or, alternatively, to pay him compensation in lieu of reinstatement.

Nicholas Zappacosta v Kane Construction

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established