Gary Strong v Digital Monopoly Pty Ltd T/A Perth Web Design

[2012] FWA 6609

[2012] FWA 6609

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gary Strong
v
Digital Monopoly Pty Ltd T/A Perth Web Design
(U2012/7992)

COMMISSIONER WILLIAMS PERTH, 7 AUGUST 2012

Termination of employment.

[1] This matter involves an application made by Mr Gary Strong (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Digital Monopoly Pty Ltd T/A Perth Web Design (the Respondent).

[2] This application was the subject of a conference with a Fair Work Australia Conciliator however it was not resolved and so it has been referred to myself for determination.

[3] I wrote to the Applicant on 13 June 2012 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.

[4] No response was received. A further letter was sent on 25 June 2012 but again no response has been received from the Applicant.

[5] That latter 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 would be dismissed.

[6] The Applicant’s legal representatives attended a directions hearing on 1 August 2012 and advised they had no instructions from the Applicant because he had not responded to their enquires of him.

The legislation

[7] Section 577 of the Act obliges Fair Work Australia 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.

[8] Further section 578 of the Act relevantly requires that in performing functions or exercising powers in relation to a matter Fair Work Australia 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 Fair Work Australia to dismiss an application on its own initiative.

Decision

[12] In this instance the Applicant has repeatedly failed to comply with the directions to explain his intentions to the Tribunal.

[13] The Applicant has been on notice as to the consequence of further non compliance.

[14] The Respondent employer is entitled to a fair go and they are entitled to have the application made against them determined within a reasonable time.

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

[16] Consequently my decision is that this application for an unfair dismissal remedy should now dismissed on the initiative of Fair Work Australia 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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