Blazely Tane v Harvey Industries Group Pty Ltd T/A Harvey Beef

[2013] FWC 9596

[2013] FWC 9596

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Blazely Tane
v
Harvey Industries Group Pty Ltd T/A Harvey Beef
(U2013/11309)

COMMISSIONER WILLIAMS PERTH, 13 DECEMBER 2013

Termination of employment.

[1] This matter involves an application made by Mr Blazely Tane (the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Harvey Industries Group Pty Ltd T/A Harvey Beef (the respondent).

[2] The application was the subject of a conference with a Fair Work Commission conciliator however the matter was not resolved and so has been referred for determination.

[3] On 8 October 2013 the applicant was sent a notice of listing with attached directions. This was both emailed and posted to the applicant. These directions were that the applicant was to provide his witness statements and submissions to the Commission and to the respondent by 20 November 2013.

[4] No materials were provided by the applicant.

[5] On 21 November 2013 my associate emailed the applicant reminding him of the directions and advising that if these materials were not received by 26 November 2013 his application would be listed for a non-compliance hearing.

[6] No response was received from the applicant to this email nor were any materials provided by him to the Commission or the respondent.

[7] Consequently on 2 December 2013 a notice of listing was emailed and posted to the applicant. This notice advised that there would be a hearing at 12.00 p.m. on Thursday, 5 December 2013. The notice of listing stated that the hearing was for the applicant to show cause why the application should not now be dismissed because of his failure to comply with the Commission’s directions.

[8] The applicant did not attend this hearing.

[9] As at the date of this decision there has been no contact from the applicant at all.

The legislation

[10] Section 577 of the Act obliges the 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.

[11] Further section 578 of the Act relevantly requires that in performing functions or exercising powers in relation to a matter the 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 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.

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

Decision

[15] In this case the applicant has failed to comply with the directions issued by the Commission and failed to respond to a reminder that allowed him further time to comply with those directions. The applicant has also failed to attend a non-compliance hearing. The applicant has not provided any reasons for his non-compliance with the Commission’s directions or for his failure to attend the listed non-compliance hearing of which he was notified.

[16] There has been no response at all from the applicant to the various communications from the Commission.

[17] The applicant in the circumstances here has been given a fair go.

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

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

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

COMMISSIONER

Appearances:

No appearance on behalf of the applicant.

R. Humphreys, solicitor for the respondent.

Hearing details:

2013.

Perth:

December 5.

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