Geoffrey Konowalow v NRW Contracting Pty Ltd

[2021] FWC 88

[2021] FWC 88

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Geoffrey Konowalow
v
NRW Contracting Pty Ltd
(U2020/14248)

COMMISSIONER WILLIAMS PERTH, 8 JANUARY 2021

Application for an unfair dismissal remedy.

[1] This matter involves an application made by Geoffrey Konowalow (the Applicant) under section 394 of the Fair Work Act 2009 (the act) for an unfair dismissal remedy. The Respondent is NRW Contracting Pty Ltd (the Respondent).

[2] The Respondent objects to the application on the grounds that the Applicant falls above the high-income threshold and that the application was made out of time.

[3] The application was the subject of a conference with a Fair Work Commission conciliator on 1 December 2020 however the matter was not resolved and so was referred for arbitration.

[4] Thereafter on 9 December 2020 the parties were advised in writing of directions to provide witness statements and submissions for the determination of the above jurisdictional objections.

[5] The Applicant was directed to provide written materials in response to the jurisdictional objections by 24 December 2020. Nothing was received from the Applicant by this date

[6] A follow up letter was sent to the Applicant on 4 January 2021 regarding their failure to comply with the Commission’s directions and directing that the materials be filed and served by 7 January 2020.

[7] The letter advised a further failure to comply with the Commission’s direction would be grounds for the application to be dismissed without further notice.

[8] As at the date of this decision the Applicant has not filed any materials as directed nor otherwise contacted the Commission.

The legislation

[9] Section 577 obliges the Fair Work Commission to perform its functions and exercise its powers in a manner that is fair and 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 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. 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) 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, nor has he contacted the Commission.

[15] The Respondent has raised jurisdictional objections to the application, namely that the Applicant was over the high-income threshold and that the application is out of time. The directions were for the purposes of determining the jurisdictional objections and whether the application could proceed to a substantive hearing. The matter was proposed to be dealt with ‘on the papers’ to minimise cost to both parties.

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

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

[18] 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.

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

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