Adam O'Reilly v BHP Group Limited

[2022] FWC 388

[2022] FWC 388

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Adam O’Reilly
v

BHP Group Limited

(U2021/9538)

COMMISSIONER WILLIAMS PERTH, 28 FEBRUARY 2022

Application for an unfair dismissal remedy.

1. This matter involves an application made by Mr Adam O’Reilly (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is BHP Group Limited (the Respondent).

1. The application was the subject of a conference with a Fair Work Commission conciliator however the matter was not resolved and so was referred for arbitration.

1. Immediately thereafter on 18 January 2022 the parties were advised in writing as to the future requirements to provide witness statements and submissions for arbitration.

1. Correspondence was sent to the parties on 27 January 2022 with specific directions to each party. This was sent to the Applicant by email. The Applicant was directed to provide written materials in support of the application by 18 February 2022 and it was highlighted that not complying with the Fair Work Commission’s directions may mean the application is dismissed. Nothing was received from the Applicant by this date.

1. A follow up letter was emailed to the Applicant on 21 February 2022 regarding the failure to comply with the Fair Work Commission’s direction and directing that the materials be filed and served by 10:00am, 23 February 2022. The letter advised a further failure to comply with the Fair Work Commission’s direction would be grounds for the application to be dismissed without further notice.

1. The Respondent, in compliance with the Fair Work Commission’s directions, has filed submissions in support to its’ request to be represented by a lawyer.

1. As at the date of this decision the Applicant has not filed any materials as directed nor otherwise contacted the Fair Work Commission.

The legislation

1. Section 577 of the Act obliges the Fair Work Commission to perform its functions and exercise its powers in a manner that is fair, just and is quick, informal and avoids unnecessary technicalities and is open, transparent and promotes harmonious and cooperative workplace relations.

1. Further section 578 of the Act relevantly requires that in performing functions or exercising powers in relation to a matter the Fair Work Commission must take into account the Objects of the relevant Part of the Act.

1. A section 394 application falls under Part 3-2 Unfair Dismissal of the Act.

1. The objects of Part 3-2 Unfair Dismissal are prescribed in section 381 of the Act. These objects include the establishment of procedures dealing with unfair dismissal that are quick, flexible and informal and address the needs of employers and employees and involve procedures and remedies that ensure a “fair go all around” is accorded to both the employer and employee concerned.

1. Section 587 (3) of the Act empowers the Fair Work Commission to dismiss an application on its own initiative.

Decision

1. In this case the Applicant has failed to comply with the Fair Work Commission’s directions and was on notice that non-compliance would be grounds for the application to be dismissed.

1. The Applicant in the circumstances here has been given a fair go.

1. The Respondent is also entitled to a fair go including having the claim made against them determined within a reasonable time.

1. Consequently, my decision is that this application for an unfair dismissal remedy should now dismissed on the initiative of the Fair Work Commission under section 587 (3) of the Act.

1. An order [PR738682] to this effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

<PR738681>