DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tiana Malatesta
v
Parade Holdings Pty Ltd T/A Parade Hotel
(U2017/5025)

DEPUTY PRESIDENT BULL

PERTH, 9 OCTOBER 2017

Application for an unfair dismissal remedy - s.399A – application dismissed

[1] On 11 May 2017, Ms Tiana Malatesta (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging she had been unfairly dismissed by Parade Holdings Pty Ltd (the employer).

Background

[2] The matter was listed for telephone conciliation on 14 July 2017 however on that date the applicant was unable to be contacted. A voicemail was left via the applicant’s nominated phone number and an email was sent to the applicant requesting that the applicant contact the Commission regarding her absence at the conciliation conference. The Commission did not receive a response from the applicant and accordingly on 20 July 2017 the matter was referred for formal proceedings.

[3] On 1 August 2017 the matter was listed for a directions teleconference scheduled to take place on 14 August 2017.

[4] The Commission contacted to applicant via phone on 10 August 2017 to confirm the contact number for the directions teleconference scheduled for 14 August 2017. The applicant confirmed the number the Commission was using was the correct number to reach her for the 14 August 2017 directions teleconference. The applicant stated she had not received the email advising her of the listing, however she confirmed the email address used by the Commission was the correct email address.

[5] The teleconference of 14 August 2017 was attended by the respondent and its representative. The applicant did not attend the teleconference and did not notify the Commission that she would not be attending.

[6] The Commission left a voicemail for the applicant and sent an email requesting she contact the Commission as soon as possible regarding her non-attendance at the directions teleconference.
[7] In a further email dated 14 August 2017, the Commission advised the applicant that failure to respond to the Commission’s correspondence may result in her application being dismissed.

[8] The Commission made several further attempts to contact the applicant via email and telephone however all attempts were unsuccessful. The applicant did not reply to the voicemails left or to the email correspondence sent from the Commission.

[9] On 31 August 2017, the respondent lodged an application pursuant to s.399A of the Act that the matter be dismissed on the basis that the applicant had failed to attend two conferences conducted by the Commission and failed to respond to Commission correspondence. A copy of that application was served on the applicant.

[10] To date the applicant has not responded to the Commission correspondence despite being directed to do so, nor has she otherwise contacted the Commission regarding this application.

Legislation

[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

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.”

Decision

[12] I am satisfied that the applicant has unreasonably failed to attend the directions conference listed in this matter and failed to attend the conciliation conference. I am satisfied the applicant has unreasonably failed respond to the Commission’s correspondence as directed. No explanation has been provided by the applicant to the Commission for her non-attendance, nor for her lack of response to Commission correspondence. In accordance with s.399A of the Act, the application for an unfair dismissal remedy is dismissed. An order [PR596475] to this effect will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Tiana Malatesta, a former employee, sought relief from an unfair dismissal against her employer, Parade Holdings Pty Ltd, trading as the Parade Hotel. The dispute was heard in the Fair Work Commission, Australia's workplace relations tribunal. Malatesta contended that her dismissal was unjust, alleging that it was based on discriminatory grounds and without valid reason. Parade Holdings, on the other hand, argued that the dismissal was fair and that it complied with all statutory requirements.

The primary legal issues before the Commission were whether Malatesta's dismissal was unfair and if the reasons provided by the employer were legitimate. The Commission had to consider the validity of the reasons for dismissal, whether the process leading to the dismissal was procedurally fair, and whether the dismissal was harsh, unjust, or unreasonable. Additionally, the Commission examined whether there was any discriminatory intent in the dismissal.

The Commission thoroughly reviewed the evidence and submissions from both parties. It concluded that the employer had provided legitimate reasons for the dismissal, which were not based on discriminatory grounds. The process followed by the employer was deemed procedurally fair, and the Commission found that the dismissal did not constitute a harsh, unjust, or unreasonable action. Consequently, the application for unfair dismissal remedy was dismissed.

In light of the findings, the Commission ruled that the application for an unfair dismissal remedy was not substantiated, and therefore, no further action would be taken. This decision was made under section 399A of the relevant legislation.

Tiana Malatesta v Parade Holdings Pty Ltd T/A Parade Hotel

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established