Stephen Parisi v Special T Communication Pty Ltd T/A Special T Print

[2016] FWC 277

[2016] FWC 277

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Parisi
v
Special T Communication Pty Ltd T/A Special T Print
(U2015/13492)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 18 JANUARY 2016

Application for relief from unfair dismissal.

[1] Mr Stephen Parisi alleged that the termination of his employment on 1 October 2015 by Special T Communications Pty Ltd was unfair. Special T objected to Mr Parisi’s application on the grounds that it was a small business and the dismissal was consistent with the small business fair dismissal code.

[2] On 13 November 2015, directions were issued to Mr Parisi and Special T to file material in support of the application and objection. That material was due on 7 December 2015. Special T complied with the directions but Mr Parisi did not and he did not make any contact with the Fair Work Commission prior to the compliance date.

[3] On 8 December 2015, the Commission called Mr Parisi, sent him a text message and sent him an email, advising him that his submissions were overdue and that no request for an extension of time to lodge his material had been received. A further attempt to call him was made on 9 December 2015.

[4] A non-compliance hearing was held on 11 December 2015 and Mr Parisi did not participate in the hearing. At the hearing, Special T made an oral application under section 399A of the Fair Work Act 2009 (the Act) seeking the dismissal of Mr Parisi’s application because he had unreasonably failed to comply with the Commission’s directions. I waived compliance with the Fair Work Commission Rules 2013 and accepted Special T’s oral application.

[5] On 11 December 2015, a letter was sent to Mr Parisi advising him of the section 399A application and giving him until 21 December 2015 to provide submissions and evidence to support his reasons as to why his application should not be dismissed.

[6] On 21 December 2015, Mr Parisi sent an email to the Commission saying he had been unable to respond “due to unavailability of emailing and also due to work commitments.” He said he still wanted to pursue the matter.

[7] To date, Mr Parisi has still not filed any material to support his substantive complaint.

[8] On 5 January 2015, Special T submitted that the explanation provided by Mr Parisi was not reasonable. He did not explain what attempts he made to get email access nor did he explain why he was unable to contact the Commission or Special T. Mr Parisi did not apply for an adjournment. Mr Parisi has also provided no indication of when he would be able to file his material.

[9] The parties were asked to advise by 13 January 2016 if they objected to the section 399A application being determined on the papers. Special T relied on and consented to the application being determined on the papers. Mr Parisi did not respond.

Consideration

[10] On application by an employer, the Commission has the discretion to dismiss an unfair dismissal application because there has been unreasonable non compliance with directions of the Commission.¹

[11] The Explanatory Memorandum said that the intention of this provision was “to address the small proportion of applicants who may pursue claims in an improper and unreasonable manner. ....In particular, the power to dismiss an application is only intended to be available where there is an unreasonable act or omission by the applicant.”²

[12] The role of case management was discussed by the Full Bench in Ghalloub v Aon Risk Services Australia Limited³.

[13] In summary that decision said:

• the starting point of any consideration an application to dismiss is that an applicant is entitled to have his or her case heard;



• directions play an important role in case management;



• accepting the importance of case management principles, only in extreme circumstances should a party be shut out from litigating an issue which is fairly arguable;



• the circumstances of each case is central;



• a history of non compliance with directions indicating an inability or an unwillingness to have the matter ready for trial within an acceptable period of time is relevant



• continuing non compliance which causes unnecessary delay, expense or prejudice to the other party is relevant.

[14] While not an exhaustive lists of matters that may be considered, I will adopt the approach of the Full Bench in this matter.

Consideration

[15] As there were no disputed facts, I have decided to determine the section 399A application without holding a hearing/conference.

[16] I do not consider that Mr Parisi’s explanation for his failure to comply with the directions is reasonable. That he did not have email access does not explain why he was unable to lodge his material or why he has not responded to the Commission’s text message. Nor does the fact that he has work commitments explain his failure to comply.

[17] It is Mr Parisi’s application. It is his obligation to prosecute that claim. Apart from his email in response to the section 399A application, Mr Parisi has made no attempt to prosecute his claim. I find his failure to comply with the direction to be unreasonable. The power to dismiss an application is discretionary. I am obliged under the Act to provide the parties with a fair go all round. Mr Parisi did not apply for an extension of time to lodge his material prior to or after the date it was due to be filed. He has still not filed any material to support his claim that he was unfairly dismissed. I am therefore prepared to exercise my discretion to dismiss the matter and an order to that effect will issue with this decision.

DEPUTY PRESIDENT

1 Section 399A of the Fair Work Act 2009.

2 Explanatory Memorandum to the Fair Work Amendment Bill 2012 at [161- 163].

3 PR 956665.

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