Bradley Humble v CTI Freight Management Pty Ltd T/A Stirling Freight Express

[2019] FWC 5980

[2019] FWC 5980

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bradley Humble
v
CTI Freight Management Pty Ltd T/A Stirling Freight Express
(U2019/2740)

COMMISSIONER WILLIAMS PERTH, 28 AUGUST 2019

Application for an unfair dismissal remedy.

[1] This matter involves an application made on 12 March 2019, by Mr Bradley Humble (the Applicant) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The respondent is CTI Freight Management Pty Ltd T/A Stirling Freight Express (the Respondent).

[2] The Respondent filed a Form F3-Employer’s Response to Unfair Dismissal Application (the Employer’s Response) on 28 March 2019.

[3] The Employer’s Response raised a jurisdictional objection being that the Applicant’s employment does not meet the minimum employment period.

[4] The Application was the subject of a conciliation conference conducted by a Fair Work Commission Conciliator, however the Applicant was unavailable for the call due to personal reasons.

[5] As requested by the Applicant the Commission relisted the conciliation conference, again the Applicant was not available for the call and did not call the Commission back, due to personal reasons.

[6] The Commission made contact with the Applicant to confirm if he was seeking the matter to be listed for another conciliation, which would only proceed if the Respondent consents. The Applicant responded stating “I would like to list this for further hearing”.

[7] The Commission made contact with the Respondent seeking if they would agree to have the conciliation conference relisted for a third time, the Respondent declined due to the non-attendance by the Applicant in the two past conciliation conferences.

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

[9] The Commission wrote to the parties on 25 July 2019, directing the Applicant to provide information by way of a witness statement regarding his period of employment and the number of employees employed at the time of dismissal by 8 August 2019. 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 to the parties on 13 August 2019, regarding the Applicant’s failure to comply with the Commissions direction and directing that the materials be filed and served by 20 August 2019. 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 nor otherwise contacted the Commission.

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

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