Carlie Mallon v Measurement Control Engineering Pty Ltd

[2018] FWC 5661

[2018] FWC 5661

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Carlie Mallon

v

Measurement Control Engineering Pty Ltd

(U2018/7642)

Commissioner Williams PERTH, 10 SEPTEMBER 2018

Termination of employment.

1. This matter involves an application made by Ms Carlie Mallon (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Measurement Control Engineering Pty Ltd (the Respondent).

1. The Respondent objects to the application on the ground that business is a small business and the dismissal was consistent with the Small Business Fair Dismissal Code.

1. The application was listed for a conference on 21 August 2018 with a Fair Work Commission conciliator however the conference did not proceed because of the unavailability of the Applicant. That same day the Commission wrote to the Applicant requesting she advise within two business days whether she wished the matter to proceed via a further conciliation conference. The Applicant did not respond to the Commission’s letter and so the matter was referred for arbitration.

1. On 30 August 2018 correspondence was sent to the Applicant by email and express post requesting she advise whether or not she wishes to proceed with her application by no later than Thursday, 6 September 2018. The letter advised a further failure to comply with the Commissions direction would be grounds for the application to be dismissed without further notice.

1. As at the date of this decision the Applicant has not responded to the Commission’s letter as directed nor otherwise contacted the Commission.

The legislation

1. 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, transparent and promotes harmonious and cooperative workplace relations.

1. 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.

1. A section 394 application falls under Part 3-2 Unfair dismissal of the Act.

1. 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.

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

Decision

1. In this case the Applicant has repeatedly failed to comply with the Commission’s directions to advise her intentions with respect to her application and was on notice that non-compliance would be grounds for the application to be dismissed.

1. The Applicant in the circumstances here has been given a fair go.

1. The Respondent is also entitled to a fair go including having the claim made against them determined within a reasonable time.

1. 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.

1. An order [PR700218] to this effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

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