Benjamin Newnham v Eyeson Workforce

[2011] FWA 8091

[2011] FWA 8091

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Benjamin Newnham
v
Eyeson Workforce
(U2011/1105)

COMMISSIONER WILLIAMS PERTH, 30 NOVEMBER 2011

Termination of employment.

[1] This matter involves an application made by Mr Benjamin Newnham (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The Respondent is Eyeson Workforce.

[2] The application was the subject of a conference with a Fair Work Australia Conciliator however it was not resolved and so it has been referred to myself for determination.

[3] The Respondent initially objected to the application proceeding on the grounds that the Applicant had not completed the minimum employment period prescribed by section 383 of the Act.

[4] Directions were issued to the parties to provide written submissions on the jurisdictional point and submissions were duly provided by the Respondent and subsequently by the Applicant's representative, Mr Kelemen.

[5] A conference was held on 29 August 2011 where the effect of section 22 of the Act, which deals with the meanings of service and continuous service, was discussed and during which Mr Smith, on behalf the Respondent, conceded that the circumstances of the Respondent’s various entities was such that for the purposes of section 383 the Respondent now accepted that the Applicant had completed the minimum employment period.

[6] Following that a notice of listing was sent to the parties with directions attached. The notice of listing and directions was sent to the Applicant’s representative and to the Applicant himself using the contact details he had provided.

[7] The directions require the Applicant to provide written material to Fair Work Australia and serve this on the Respondent by Monday, 24 October 2011.

[8] As at 27 October 2011 nothing had been received from the Applicant or his representative. Consequently I wrote to both the Applicant and his representative advising them of this and requiring them to lodge the Applicant's materials and serve these on the Respondent by 2 November 2011 and advising that if this did not occur the application would be dismissed for want of prosecution.

[9] On 2 November 2011 the Applicant’s representative lodged a form F54 Notice of Representative Ceasing to Act.

[10] As at the date of this decision no materials have been received from the Applicant in support of his application and there has been no other contact from the Applicant.

The legislation

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

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

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

[14] 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.

[15] Section 587(3) empowers Fair Work Australia to dismiss an application on its own initiative.

Decision

[16] In this case the Applicant has twice failed to comply with the directions to provide written materials in support of his application.

[17] The Applicant has had the opportunity to put materials before the Tribunal and to the Respondent in support of his application but has failed to do so. The Applicant has been given a fair go in the circumstances.

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

[19] The Applicant has been given an adequate opportunity to be heard.

[20] In the circumstances this application for an unfair dismissal remedy is dismissed on the initiative of Fair Work Australia under section 587(3) of the Act for want of prosecution.

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

COMMISSIONER

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