Anthony Hawkins v Eclipse Driving School T/A Eclipse Driving School

[2020] FWC 1204

[2020] FWC 1204

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Hawkins
v
Eclipse Driving School T/A Eclipse Driving School
(U2019/12749)

COMMISSIONER WILLIAMS PERTH, 6 MARCH 2020

Application for an unfair dismissal remedy.

[1] This matter involves an application made by Mr Anthony Hawkins (the Applicant) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The respondent is Eclipse Driving School T/A Eclipse Driving School

[2] Respondent filed a Form F3-Employer’s Response to Unfair Dismissal Application (the Employer’s Response) on 4 December 2019.

[3] The Respondent’s response to the application objects to the application on the grounds that the Applicant was not an employee.

[4] The Application was the subject of a conciliation conference conducted by a Fair Work Commission Conciliator on 10 December 2019, however the Applicant was unavailable for the call.

[5] As requested by the Applicant the Commission relisted the conciliation conference.

[6] The Application was subject to a second conciliation on 8 January 2020; however, the Applicant was unavailable for the call.

[7] Subsequently the Respondent filed a Form F4-Objection to unfair dismissal application raising a second objection that the Applicant’s employment does not meet the minimum employment period of 12 months.

[8] Consequently, this matter has been referred to myself for determination.

[9] The Commission wrote to the parties on 30 January 2020, directing the Applicant to provide information by way of a witness statement and/or written submissions with any supporting documents regarding his period of employment and eligibility to make an application for unfair dismissal. The correspondence advised that it was proposed that the objection be determined on the papers however, if necessary, a hearing would be held. Nothing was received from the Applicant by this date.

[10] A follow up letter was emailed and posted to the parties on 21 February 2020, regarding the Applicant’s failure to comply with the Commissions direction and directing that the materials be filed and served by 28 February 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.

[11] As at the date of this decision the Applicant has not filed any materials as directed.

The legislation

[12] 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.

[13] 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.

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

[15] [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.

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

Decision

[17] In this case the Applicant has failed to comply with the directions to explain his intentions.

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

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

[20] 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.

[21] An order to this effect will be issued in conjunction with this decision

COMMISSIONER

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