Anthony Bell v The Trustee for the JA Britt & Ts Black Family Trust T/A Delta Roofing

[2020] FWC 3527

[2020] FWC 3527

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Bell
v
The Trustee for The JA Britt & TS Black Family Trust T/A Delta Roofing
(U2020/6125)

COMMISSIONER WILLIAMS PERTH, 3 JULY 2020

Application for an unfair dismissal remedy.

[1] This matter involves an application made by Mr Anthony Bell (the Applicant) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The Respondent is The Trustee for The JA Britt & TS Black Family Trust T/A Delta Roofing (the Respondent).

[2] The Respondent objects to the application on the grounds that the Applicant’s employment does not meet the minimum employment period and the employer is a small business employer and complied with the Small Business Fair Dismissal Code

[3] The application was the subject of a conference with a Fair Work Commission conciliator however the conciliation could not take place as the Applicant did not answer the Commissions calls.

[4] Immediately thereafter, correspondence was emailed to the parties, offering a second conciliation, the Applicant did not respond.

[5] The Commission called the Applicant on 15 June 2020 and left a voice message. A follow up email was sent, offering the second conciliation, noting if no response was received the matter would be referred to arbitration.

[6] A further follow up call to the Applicant was made on 17 June 2020 and a voice message was left stating the matter would be referred to a Commission Member.

[7] Correspondence was emailed to the parties on 22 June 2020 with specific directions. The Applicant was directed to provide written materials regarding the minimum employment period and any submissions and supporting documents by Tuesday, 30 June 2020. Nothing was received from the Applicant by this date.

[8] A follow up letter was emailed to the Applicant on 1 July 2020, regarding the failure to comply with the Commissions direction and directing that the materials be filed and served by 2 July 2020. The letter advised a further failure to comply with the Commissions direction would be grounds for the application to be dismissed without further notice.

[9] As at the date of this decision the Applicant has not filed any materials as directed nor otherwise contacted the Commission.

The legislation

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

[11] Further section 578 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.

[12] A section 394 application falls under Part 3-2 unfair dismissal of the Act.

[13] The objects of Part 3- 2 unfair dismissal are prescribed in section 381. 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.

[14] Section 587 (3) empowers the Fair Work Commission to dismiss an application on its own initiative.

Decision

[15] In this case the Applicant has failed to comply with the Commissions directions and was on notice since the conciliation conference that non-compliance would be grounds for the application to be dismissed.

[16] The Applicant in the circumstances here has been given a fair go.

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

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

[19] An order [PR720756] to this effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

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