Pasquale Mammone v Toman Investments Pty Ltd T/A Man to Man

[2015] FWC 2886

[2015] FWC 2886

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Pasquale Mammone
v
Toman Investments Pty Ltd T/A Man To Man
(U2015/799)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 28 APRIL 2015

Application for relief from unfair dismissal.

[1] On 25 February 2015, Mr Pasquale Mammone made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009. Mr Mammone’s application form indicated that his employment had been terminated by Toman Investments (Toman) on 5 February 2015.

[2] On 3 March 2015, correspondence was received from Ferrier Hodgson advising that Mr Brendan Richards and Mr James Stewart of Ferrier Hodgson were appointed Administrators of Toman Investments Pty Ltd on 17 December 2014.

[3] The matter was listed for conciliation on 24 March 2015, however, it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[4] Mr Mammone was directed to file an outline of argument, statement(s) of evidence and document list he wished to rely on by noon on 7 April 2015.

[5] On 2 April 2015, Mr Mammone spoke with a Fair Work Commission staff member and asked questions about his submissions and what he needed to file.

[6] On 8 April 2015, a Commission staff member rang Mr Mammone to ascertain the status of his material. As there was no answer, a voicemail message was left.

[7] As Mr Mammone did not comply with the direction to file material, the matter was listed for a non compliance hearing before Commissioner Wilson on 10 April 2015.

[8] Mr Mammone did not attend the non compliance hearing. Ferrier Hodgson made an oral application, pursuant to section 399A of the Act, that the matter be dismissed as Mr Mammone had failed to comply with the direction of the Commission. Commissioner Wilson waived compliance with the Fair Work Commission Rules 2013 and accepted Ferrier Hodgson’s oral application.

[9] On 10 April 2015, Mr Mammone was sent correspondence informing him of Ferrier Hodgson’s section 399A application. Mr Mammone was directed to file submissions and other documentary material in respect of Ferrier Hodgson’s application by close of business, on 20 April 2015. Mr Mammone was advised that if he failed to comply with this direction, his application would be dismissed.

[10] Mr Mammone did not file any material with the Commission.

[11] 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.

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

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

[14] After considering all the material, Mr Mammone’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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