Broe Lonergan v Mammoet Australia Pty Ltd

[2014] FWC 1657

[2014] FWC 1657

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Broe Lonergan
v
Mammoet Australia Pty Ltd
(U2013/17051)

COMMISSIONER WILLIAMS PERTH, 12 MARCH 2014

Termination of employment.

[1] This matter involves an application made by Mr Broe Lonergan (the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Mammoet Australia Pty Ltd (the respondent).

[2] The respondent has objected to the application on the grounds that the applicant has not served the minimum employment period.

[3] An employee is only eligible to make an application for an unfair dismissal remedy if they have completed the minimum employment period of:

• one year—where the employer employs fewer than 15 employees (a small business employer)



• six months—where the employer employs 15 or more employees. 1

[4] I wrote to the applicant on 3 February 2014 advising that the matter would be listed for a formal determinative proceeding and explaining the procedure involved. The letter requested that the applicant advise whether he wished to proceed with that hearing or to discontinue the application. The letter was sent by email and post.

[5] No response was received as requested however on 6 February 2014 the applicant did enquire regarding the respondent’s objection and he was referred to relevant sections of the Fair Work Commission’s Unfair Dismissal Bench Book.

[6] Further correspondence was sent to the applicant on 13 February 2014 requesting his response. This was also sent by email and post.

[7] That correspondence explained that lack of a response would be taken as an indication that he did not want to continue with the application and the matter would be dismissed.

[8] As at the date of this decision there has been no response or further contact from the applicant.

The legislation

[9] Section 577 of the Act obliges the Fair Work 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.

[10] Further section 578 of the Act 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.

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

[12] 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.

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

Decision

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

[15] The respondent employer is entitled to a fair go including having the claim made against them determined within a reasonable time. The applicant in the circumstances here has been given a fair go.

[16] I am also in this instance satisfied on the face of the detailed material lodged by the respondent that the applicant probably has not served the minimum employment period due to lengthy and numerous periods of unpaid personal leave and so his application would be dismissed if it had proceeded.

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

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

COMMISSIONER

 1 See sections 382 and 383 of the Fair Work Act 2009.

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