Kazey McGeady v Fulton Hogan Industries Pty Ltd

[2023] FWC 3056

[2023] FWC 3056

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Kazey McGeady
v

Fulton Hogan Industries Pty Ltd

(U2023/8720)

DEPUTY PRESIDENT BINET PERTH, 23 NOVEMBER 2023

Application for an unfair dismissal remedy

1. On 12 September 2023, Mr Kazey McGeady (Mr McGeady) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Fulton Hoagan Industries Pty Ltd (Fulton Hoagan).

1. On 22 September 2023, Fulton Hoagan filed a Form F3 - Employer response to unfair dismissal application noting that it did not raise any Jurisdictional Objection to the Application.

1. On 19 September 2023 the parties were informed that the Application would listed for a conciliation conference with a staff conciliator on 13 October 2023.  Mr McGeady was not available at the time of the listed conference and did not respond to requests to contact the FWC until 19 October 2023.

1. On 24 October 2023 the Application was allocated to my Chambers for determination.

1. Directions were issued to parties on 3 November 2023 which required Mr McGeady to file his materials in relation to the merit of the Application by 3pm (AWST) Monday 13 November 2023 (Directions). The parties were advised that compliance with the Directions were mandatory and that a failure by Mr McGeady to file his materials may result in the Application being dismissed.

1. On 7 November 2023, Chambers wrote to Mr McGeady reminding him that he was required to file the materials set out in the Directions. Chambers also provided Mr McGeady with templates to assist him in the preparation of his materials.

1. Mr McGeady failed to file any materials in accordance with the Directions.

1. Chambers wrote to Mr McGeady on 14 November 2023 reminding him that his materials were overdue.

1. On 14 November 2023 Fulton Hoagan made an application pursuant to section 399A of the FW Act for the Application to be dismissed on the grounds that Mr McGeady failed to comply with the Directions (Dismissal Application).

1. On 15 November 2023, Mr McGeady informed Chambers that he was endeavouring to arrange to have a lawyer represent him.

1. On 16 November 2023 Mr McGeady was invited to file submissions and evidence as to why the Application should not be dismissed by 4pm on 17 November 2023. He was also directed to file the materials set out in the Directions or provide an indication of when he proposed that such materials be filed. Chambers advised Mr McGeady that if he did not file submissions and evidence by 4pm 17 November 2023 the Application may be dismissed pursuant to section 399A of the FW Act.

1. On 20 November 2023 Chambers again wrote to Mr McGeady and informed him that Chambers were still waiting for proof that he tried to book an appointment with a lawyer. Mr McGeady was informed that without such proof being provided to Chambers by 10am (AWST) 21 November 2023 that the Application would be dismissed without further notice.

1. No materials were filed in accordance with the Directions and no submissions or evidence were filed in relation to the Dismissal Application by Mr McGeady by 4pm 21 November 2023, or since.

1. Section 399A of the FW Act provides:

“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.

Note 1: for other 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.”

1. Mr McGeady failed to file the materials he was directed to file by the dates specified in the Directions. As at the date of this decision Mr McGeady has still not filed any materials in support of his Application or in response to the Dismissal Application. I am satisfied that Mr McGeady has unreasonably failed to comply with directions of the FWC relating to this Application. On the Application of Fulton Hoagan and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application.

1. An Order to this effect will be issued with this decision.[1]

DEPUTY PRESIDENT

[1] Print PR768499.

Printed by authority of the Commonwealth Government Printer

<PR768498>