O'Regan v Coventry Fasteners

[2016] FWC 1208

[2016] FWC 1208

The attached document replaces the document previously issued with the above code on 25

February 2016.

The paragraph numbering has been amended.

Yota Amanatidis

Associate to Deputy President Gooley

26 February 2016 [2016] FWC 1208

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Matt O’Regan
v
Coventry Fasteners
(U2014/4640)
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 25 FEBRUARY 2016
Application for relief from unfair dismissal.

[1]        On 14 February 2014, Mr Matt O’Regan made an application for remedy for unfair

dismissal under section 394 of the Fair Work Act 2009 (the Act). Mr O’Regan’s employment

had been terminated by Coventry Fasteners on 28 January 2014.

[2]        The matter was the subject of conciliation on 11 April 2014 however, the matter was

not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3]        Mr O’Regan was directed to file an outline of submissions, any witness statements and

other documentary material he wished to rely on by noon, on 12 May 2014.

[4]        The Commission has sent numerous email and text messages to Mr O’Regan but no

response has been received from Mr O’Regan regarding his matter.

[5]        The matter was listed for a conference/hearing before me on 5 February 2016 to

determine how the matter should proceed.

[6]        Mr O’Regan did not attend the hearing.

[7]         Coventry Fasteners made an oral application, pursuant to s.399A of the Act, that the

matter be dismissed as Mr O’Regan had failed to comply with the direction of the Fair Work

Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted

Coventry Fasteners’ oral application.

[8]        On 5 February 2016, Mr O’Regan was sent correspondence informing him of

Coventry Fasteners’ section 399A application. Mr O’Regan was directed to file submissions

and other documentary material in respect of Coventry Fasteners’ application by close of

business, on 15 February 2016. Mr O’Regan was advised that if he failed to comply with this

direction, his application would be dismissed.

[9]        Mr O’Regan did not file any material with the Commission.

[2016] FWC 1208

[10]      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.

[11]      Section 593 of the Act provides that the Commission is not required to hold a hearing

except as provided by the Act.

[12]      As Mr O’Regan did not file any material in opposition to the application to dismiss, I

will determine the application on the papers.

[13]      As Mr O’Regan has provided no explanation for his failure to comply with directions,

I find that his failure was unreasonable.

[14]      The power to dismiss an application if the non-compliance was unreasonable is

discretionary. Mr O’Regan has failed to respond to the many attempts by the Commission to

contact him. He has shown no willingness to prosecute his case. In those circumstances, I

will exercise my discretion and dismiss Mr O’Regan’s application. An order giving effect to

this decision will be issued today.

DEPUTY PRESIDENT

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