Donnie McGarvey v St Ives Gold Mining Company Pty Limited

[2014] FWC 5010

[2014] FWC 5010

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Donnie McGarvey
v
St Ives Gold Mining Company Pty Limited
(U2014/6096)

COMMISSIONER WILLIAMS PERTH, 25 JULY 2014

Termination of employment.

[1] This matter involves an application made by Mr Donnie McGarvey (the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is St Ives Gold Mining Company Pty 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] I wrote to the applicant advising that the matter would be listed for a formal determinative proceeding and explaining the procedure involved. The letter requested that the applicant advise by 27 June 2014 whether he wished to proceed with that hearing or to discontinue the application. The letter was sent by email and post on 6 June 2014.

[4] No response was received.

[5] Further correspondence was sent to the applicant on 8 July 2014 requesting his response by 18 July 2014. This was also sent by email and post.

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

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

The legislation

[8] 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.

[9] 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.

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

[11] 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.

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

Decision

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

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

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

[16] 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.

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

COMMISSIONER

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