William Finnegan v Roy Hill T/A Roy Hill Holdings
[2018] FWC 4296
•23 JULY 2018
| [2018] FWC 4296 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
William Finnegan
v
Roy Hill T/A Roy Hill Holdings
(U2018/4563)
| Commissioner Bissett | MELBOURNE, 23 JULY 2018 |
Application for an unfair dismissal remedy.
On 2 May 2018, Mr William Finnegan 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 Finnegan said he was notified of his dismissal by Roy Hill T/A Roy Hill Holdings (Roy Hill) on 13 April 2018, and that the dismissal took effect on 14 April 2018.
The matter was listed for conciliation on 30 May 2018 and did not resolve. Consequently, on 6 June 2018, directions were issued to the parties and the matter was listed for a Jurisdiction (Not an Employee; No Award or Agreement and the Applicant’s Annual Earnings Exceeded the High Income Threshold) Conference/Hearing for 20 July 2018 by telephone. Roy Hill was directed to file its jurisdictional objection material by no later than noon on 18 June 2018, and Mr Finnegan was directed to file his reply material by no later than noon on 28 June 2018.
On 18 June 2018, Roy Hill filed its material.
On 19 June 2018, amended directions were issued to parties to correct ‘Monday, 28 June 2018’ to ‘Thursday, 28 June 2018’ in relation to Mr Finnegan’s material.
On 29 June 2018, the Commission attempted to telephone Mr Finnegan in relation to his overdue material. This was unsuccessful and a voicemail was unable to be left due to a full inbox. An email was sent to Mr Finnegan on the same day advising that the matter would proceed to a non-compliance hearing on 6 July 2018 if he did not contact the Commission.
On 2 July 2018, a further attempt to telephone Mr Finnegan in relation to his overdue material was unsuccessful and no voicemail was able to be left, again due to a full inbox. Further, a text message was sent to Mr Finnegan reminding him of his overdue material and requesting a return call.
On 3 July 2018, the Commission sent Mr Finnegan an email advising that his submissions were late and that a non-compliance hearing would be listed if he did not file his material or seek an extension to file his material by 9.00am on 4 July 2018.
On 4 July 2018, the Commission attempted to telephone Mr Finnegan to advise that the matter would be listed for a non-compliance hearing. This was unsuccessful and a voicemail was left requesting a return call.
Later on 4 July 2018, a Notice of Listing was sent to parties confirming the scheduling of a non-compliance hearing for 6 July 2018. Additionally, a text message was sent to Mr Finnegan on 5 July 2018 advising him that the matter had been listed for a non-compliance hearing.
The non-compliance hearing proceeded before Deputy President Masson on 6 July 2018. Mr Finnegan could not be contacted. Roy Hill made an oral application pursuant to s.399A of the Act that the matter be dismissed due to Mr Finnegan’s failure to comply with the direction of the Commission. The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted Roy Hill’s oral application.
Following the non-compliance hearing, correspondence was sent to Mr Finnegan, via express post, advising him of Roy Hill’s s.399A application. Mr Finnegan was directed to file submissions and other documentary material as to why the Commission should not dismiss his application by close of business on 13 July 2018. The express post tracking ID indicates that the correspondence was delivered to Mr Finnegan on 11 July 2018.
To date, Mr Finnegan has not filed any material with the Commission.
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.’
Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.
As Mr Finnegan did not file any material in opposition to the application to dismiss, I will determine the application on the papers.
The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Finnegan has failed to respond to numerous attempts made by the Commission to contact him. Apart from initially filing his application, Mr Finnegan 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 Finnegan’s application.
An order giving effect to this decision will be issued today.
COMMISSIONER
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