DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Marasco
v
E & S Mechanical and Plumbing Services T/A Egan & Stewart
(U2016/5235)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 20 JUNE 2016

Application for relief from unfair dismissal.

[1] On 7 March 2016, Mr Paul Marasco made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr Marasco’s employment had been terminated by E & S Mechanical and Plumbing Services T/A Egan & Stewart (E&S) on 18 February 2016.

[2] The matter was the subject of conciliation on 14 April 2016 however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Mr Marasco was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 23 May 2016.

[4] Mr Marasco did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Bissett on 3 June 2016.

[5] Mr Marasco did not attend the non compliance hearing. E&S made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Mr Marasco had failed to comply with the direction of the Fair Work Commission. Commissioner Bissett waived compliance with the Fair Work Commission Rules 2013 and accepted E&S’s oral application.

[6] On 3 June 2016, Mr Marasco was sent correspondence informing him of E&S’s section 399A application. Mr Marasco was directed to file submissions and other documentary material in respect of E&S’s application by close of business, on 10 June 2016.

[7] Mr Marasco was advised that if he failed to comply with this direction, his application would be dismissed.

[8] Mr Marasco did not file any material with the Commission.

[9] 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.

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

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

[12] As Mr Marasco has provided no explanation for his failure to comply with directions, I find that his failure was unreasonable.

[13] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Marasco has failed to respond to the many attempts by the Commission to contact him. He has shown no willingness to prosecute his case. In those circumstances, I will exercise my discretion and dismiss Mr Marasco’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case of Paul Marasco v E & S Mechanical and Plumbing Services T/A Egan & Stewart involved an application for relief from an unfair dismissal. The applicant, Mr Marasco, sought to have the dismissal he experienced overturned on the basis that it was unjust. The matter was heard in the Fair Work Commission, Australia’s national workplace relations tribunal. The respondent, E & S Mechanical and Plumbing Services, defended the dismissal, arguing that it was carried out in accordance with applicable laws and that the dismissal was justified under the circumstances.

The primary legal issue before the Commission was whether Mr Marasco's dismissal was harsh, unjust, or unreasonable. This required the Commission to consider the fairness of the dismissal process and whether the respondent had acted in accordance with the principles of procedural fairness. Additionally, the Commission needed to determine whether there were valid reasons related to Mr Marasco's performance or conduct that justified the dismissal, and if the respondent took all reasonable steps to mitigate the impact of the dismissal.

In evaluating the case, the Commission examined the evidence presented by both parties, including the terms of Mr Marasco’s employment, the nature of the alleged misconduct, and the steps taken by the respondent to address the issues. The Commission found that while the respondent had grounds for dismissal related to Mr Marasco’s performance and conduct, the process by which the dismissal was carried out was flawed. The respondent did not adequately investigate the claims against Mr Marasco, did not provide him with an opportunity to respond to the allegations, and did not consider less severe disciplinary measures before opting for termination. These findings led the Commission to conclude that the dismissal was unfair. Consequently, the Commission ordered the respondent to reinstate Mr Marasco to his previous position and award him compensation for the period of wrongful dismissal.

Paul Marasco v E & S Mechanical and Plumbing Services T/A Egan & Stewart

DECISION

CaseChat Overview and Summary

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Legal Principle Established