Salvatore Albinelli v Southern Alpine Resort Management Board

[2019] FWC 5643

[2019] FWC 5643

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Salvatore Albinelli
v
Southern Alpine Resort Management Board
(U2019/4624)

DEPUTY PRESIDENT CLANCY MELBOURNE, 19 AUGUST 2019

Application for an unfair dismissal remedy.

[1] On 23 April 2019, Mr Salvatore Albinelli made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In his Form F2 – Unfair Dismissal Application (Form F2), Mr Albinelli said he was notified that his employment had been terminated by Southern Alpine Resort Management Board (SARMB) on 12 April 2019, and that the dismissal took effect on the same day.

[3] A conciliation held on 11 June 2019 appeared to settle before a Commission conciliator and a three-day cooling off period was granted to the parties. On 14 June 2019, Mr Albinelli emailed the Commission to rescind his agreement within the cooling off period and requested that the matter proceed to a hearing.

[4] On 25 July 2019, a Notice of Listing was issued to the parties scheduling the matter for a Jurisdiction and Arbitration Conference/Hearing on 26-28 August 2019. Directions were also issued, requiring Mr Albinelli to file his material by no later than noon on 17 July 2019 and SARMB to file its reply material by no later than noon on 7 August 2019.

[5] On 26 July 2019, a further Notice of Listing was issued to the parties amending the directions. SARMB was directed to file material in respect of its jurisdictional objection by no later than noon on 8 July 2019, Mr Albinelli was directed to file material in response to the jurisdictional objection and in support of his application by no later than noon on 15 July 2019, and SARMB was directed to file any reply material by no later than noon on 22 July 2019.

[6] On 3 July 2019, at the request of SARMB, the directions were extended to require SARMB to file material in respect of its jurisdictional objection by no later than noon on 22 July 2019, Mr Albinelli to file material in response to the jurisdictional objection and in support of his application by no later than noon on 29 July 2019, and SARMB to file any reply material by no later than noon on 5 August 2019.

[7] On 22 July 2019, SARMB filed its material in compliance with the amended directions.

[8] No material was received from Mr Albinelli by noon on 29 July 2019.

[9] Later on 29 July 2019, the Commission attempted to telephone Mr Albinelli to enquire about his material but was unable to reach him and there was no opportunity to leave a voicemail message. Mr Albinelli’s phone service indicated that a text message with the Commission’s phone number would be sent to him. Following this, the Commission sent Mr Albinelli an email requesting that he contact the Commission in relation to his overdue material.

[10] On 30 July 2019, the Commission again attempted to telephone Mr Albinelli and left a voice to text message, seeking his return call. A further email was sent to Mr Albinelli warning that if he did not contact the Commission by 12:00PM the following day, his matter would be listed for a non-compliance hearing.

[11] As no contact was received from Mr Albinelli, the matter was listed for a non-compliance hearing and a Notice of Listing confirming these details were sent to the parties on 1 August 2019 by email. A SMS message was also sent to Mr Albinelli’s nominated mobile phone number notifying him of the non-compliance hearing.

[12] The non-compliance hearing proceeded before Deputy President Colman on 2 August 2019. Mr Albinelli could not be contacted. SARMB made an oral application that the matter be dismissed pursuant to s.399A of the Act due to Mr Albinelli’s failure to comply with the direction of the Commission. The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted the oral application.

[13] Following the non-compliance hearing, correspondence was sent to Mr Albinelli’s nominated email address advising him of SARMB’s s.399A application. Mr Albinelli was directed to file submissions and other documentary material in respect of the s.399A application by no later than 4:00PM on 12 August 2019. The correspondence warned that if the Commission did not receive a response, Mr Albinelli’s application for relief from unfair dismissal may be dismissed.

[14] On 13 August 2019, as no response was received from Mr Albinelli, a Notice of Listing was sent to the parties cancelling the Jurisdiction and Arbitration Conference/Hearing scheduled for 26-28 August 2019.

[15] To date, Mr Albinelli has not filed any material with the Commission.

[16] 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.”

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

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

[19] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Other than initially filing his application and attending the conciliation, Mr Albinelli has failed to actively prosecute his case and has not engaged with the Commission since rescinding his agreement during the three-day cooling off period following conciliation, despite requesting for his matter to proceed to hearing. Mr Albinelli has provided no explanation to the Commission for either his continued failure to comply with the directions or his failure to attend the non-compliance hearing on 2 August 2019. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Albinelli’s application. This ends his unfair dismissal application.

[20] An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR711308>