Mathew Hrestak v Supagas Pty Ltd

[2018] FWC 6866

[2018] FWC 6866

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mathew Hrestak
v
Supagas Pty Ltd
(U2018/7560)

DEPUTY PRESIDENT CLANCY MELBOURNE, 8 NOVEMBER 2018

Application for an unfair dismissal remedy.

[1] On 20 July 2018, Mr Mathew Hrestak 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). Mr Hrestak said his employment had been terminated by Supagas Pty Ltd (Supagas) on 29 June 2018.

[2] The matter was listed for conciliation on 20 August 2018 and though it did not resolve on that day, the parties requested more time to continue their negotiations.

[3] On 25 September 2018, Mr Hrestak advised the Commission an agreement was not able to be reached and he sought that the matter be listed for hearing.

[4] On 27 September 2018, directions were issued for the filing of material. Mr Hrestak was directed to file his material by no later than noon on 22 October 2018. Supagas was directed to file its material by no later than noon on 12 November 2018.

[5] On 2 October 2018, the directions to file material, as well as the hearing dates, were confirmed in writing to the parties via post and email.

[6] On 22 October 2018, the Commission telephoned Mr Hrestak in relation to his overdue material. Mr Hrestak asked whether he could request an extension to file his material and he was advised to put the request in writing. Mr Hrestak said he would do so shortly after the telephone discussion.

[7] On 23 October 2018, an attempt was made to telephone Mr Hrestak, however there was no answer and no opportunity to leave a voicemail message. Email correspondence was then sent to Mr Hrestak confirming no material had been received and if no extension request or submissions were received by noon on 24 October 2018, the matter would be listed for a non-compliance hearing on 26 October 2018.

[8] On 25 October 2018, a further attempt to telephone Mr Hrestak was made, however there was no answer and no opportunity to leave a voicemail message. A Notice of Listing was then sent to the parties confirming the scheduling of a non-compliance hearing on 26 October 2018.

[9] The non-compliance hearing proceeded before Deputy President Colman on 26 October 2018 at 10.00am. Mr Hrestak could not be contacted. Supagas made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Hrestak’s failure to comply with the direction of the Commission. Deputy President Colman waived compliance with the Fair Work Commission Rules 2013 and accepted Supagas’s oral application.

[10] At 4.25pm on 26 October 2018, Mr Hrestak emailed the Commission and said he no longer had a lawyer and was trying to organise representation. He said he would like to cancel the arbitration hearing and accept an offer from Supagas to settle the matter.

[11] As a result of the non-compliance hearing, correspondence was sent to Mr Hrestak via email at 5.37pm on 26 October 2018 advising him of Supagas’s s.399A application. Mr Hrestak was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 2 November 2018. This correspondence stated that if the Commission did not receive a response, Mr Hrestak’s application for relief from unfair dismissal would be dismissed.

[12] On 31 October 2018, the Commission telephoned Mr Hrestak. While Mr Hrestak advised that he had attempted to contact Supagas, he was advised that the Commission does not get involved in settlement discussions between the parties. A follow-up enquiry was then made by the Commission in relation to the s.399A application and Mr Hrestak said he was going to make submissions in relation to it.

[13] To date, however, Mr Hrestak has not filed any material with the Commission.

[14] 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.

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

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

[17] The power to dismiss an application if the non-compliance was unreasonable is discretionary. I am satisfied Mr Hrestak was on notice as to the s.399A application filed by Supagas as in a telephone call with the Commission on 31 October 2018, he advised that he intended to make submissions in relation to that application. Further, Mr Hrestak has provided no explanation to the Commission for either his failure to comply with directions or his failure to attend the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Mr Hrestak’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR702127>