Farmer v Repscott Pty Ltd

[2016] FWC 230

[2016] FWC 230

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Joel Farmer
v
Repscott Pty Ltd T/A Bunbury City Motorcycles
(U2015/13341)
COMMISSIONER WILLIAMS	PERTH, 13 JANUARY 2016
Termination of employment.

[1]        This matter involves an application made by Mr Joel Farmer (the applicant) under

section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The

respondent is Repscott Pty Ltd T/A Bunbury City Motorcycles (the respondent).

[2]        The application was the subject of a conference with a Fair Work Commission

conciliator however the applicant did not participate nor request a further conference.

[3]        On 9 November 2015 the parties were advised in writing as to the requirements to

provide witness statements and submissions for arbitration and it was highlighted that not

complying with the Fair Work Commission’s directions may mean the application is

dismissed.

[4]        Correspondence was sent to the parties on 20 November 2015 with specific directions

to each party. This was sent to the applicant by email and post. The applicant was directed to

provide written materials in support of the application by 18 December 2015. Nothing was

received from the applicant by this date.

[5]        A follow up letter was emailed and posted to the applicant on 4 January 2016

regarding the failure to comply with the Fair Work Commission’s direction and directing that

the materials be filed and served by 11 January 2016. The letter advised a further failure to

comply with the Fair Work Commission’s direction would be grounds for the application to

be dismissed without further notice.

[6]        As at the date of this decision the applicant has not filed any materials as directed nor

otherwise contacted the Fair Work Commission.

The legislation

[7] 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
[2016] FWC 230

technicalities and is open and transparent and promotes harmonious and cooperative

workplace relations.

[8]        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.

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

[10]      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.

[11]      Section 587 (3) of the Act empowers the Fair Work Commission to dismiss an

application on its own initiative.

Decision

[12]      In this case the applicant has failed to comply with the Fair Work Commission’s

directions and was on notice that non-compliance would be grounds for the application to be

dismissed.

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

[14]      The respondent employer is also entitled to a fair go including having the claim made

against them determined within a reasonable time.

[15]      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.

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

COMMISSIONER

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