Brock Sawtell v Argyle Diamonds Limited

[2014] FWC 5003

[2014] FWC 5003

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brock Sawtell
v
Argyle Diamonds Limited
(U2013/17570)

COMMISSIONER WILLIAMS PERTH, 25 JULY 2014

Termination of employment.

[1] This matter involves an application made by Mr Brock Sawtell (the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Argyle Diamonds Limited (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] The parties had advised the Fair Work Commission (the Commission) that they would each be calling approximately ten witnesses and the duration of any hearing would be up to five days.

[4] On 27 March 2014 the applicant’s representative, the applicant himself and the respondent were sent a notice advising that the application was listed for hearing in Broome between 3 and 7 November 2014. This notice was sent to the applicant by email and post.

[5] Directions attached to the notice of listing directed the applicant to file with the Commission and serve on the respondent written statements of evidence for each witness and an outline of submissions with any supporting documentation by 7 July 2014.

[6] On 3 June 2014 the applicant’s legal representatives nominated in his application filed a form F54−Notice of Representatives Ceasing to Act advising that they had ceased to act for the applicant.

[7] As at 9 July 2014 the applicant had not filed any witness statements or other materials in compliance with the Commission’s directions to do so by 7 July 2014 nor had he otherwise been in contact with the Commission.

[8] Accordingly on 9 July 2014 I wrote to the applicant reminding him that the directions attached to the notice of listing sent to him in March 2014 required him to file his witness statements and submissions by 7 July 2014 and pointing out that he had failed to comply with the Commission’s direction. The letter directed him to file these materials by no later than 18 July 2014 and put him on notice that non-compliance with this further direction may result in his application being dismissed.

[9] This correspondence was sent to the applicant by both email and post.

[10] As at the date of this decision the applicant has not filed any witness statements or any other materials in compliance with these directions nor has he otherwise been in contact with the Commission.

The legislation

[11] 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 and transparent and promotes harmonious and cooperative workplace relations.

[12] 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.

[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 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.

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

Decision

[16] In this case the applicant has not complied with the Commission’s direction to file witness statements and an outline of submissions in support of his application. Notwithstanding the original failure to comply the applicant has been advised he will be allowed additional time within which to comply with the Commission’s directions to file this material but has still failed to do so.

[17] Further the applicant has not sought an extension of time to comply nor has he contacted the Commission with any explanation for his repeated non-compliance.

[18] The applicant was put on notice that non-compliance could lead to his application being dismissed.

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

[20] The applicant in the circumstances here has been given a fair go but has failed to prosecute his case.

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

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

COMMISSIONER

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