Gregory Davis v Monadelphpus T/A M Maintenance Services Pty Ltd

[2020] FWC 5702

[2020] FWC 5702

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gregory Davis
v
Monadelphpus T/A M Maintenance Services Pty Ltd
(U2020/11982)

COMMISSIONER WILLIAMS PERTH, 27 OCTOBER 2020

Termination of employment.

[1] This matter involves an application made by Mr Gregory Davis (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Monadelphpus T/A M Maintenance Services Pty Ltd (the Respondent).

[2] The Respondent objects to the application on two grounds; that the application is out of time and the dismissal was a case of genuine redundancy.

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

[4] Immediately thereafter on 22 September 2020 the parties were advised in writing as to the future requirements to provide witness statements and submissions for arbitration.

[5] Correspondence was sent to the Applicant on 2 October 2020 with specific directions to address the first jurisdictional objection; that the application was out of time. This was sent to the Applicant by email and copied to the Respondent. The Applicant was directed to provide any relevant evidence and submissions in writing to determine if there were exceptional circumstance in this case by 16 October 2020. Nothing was received from the Applicant by this date.

[6] A follow up letter was emailed to the Applicant on 20 October 2020 regarding the failure to comply with the Commission’s direction and directing that the materials be filed and served by 22 October 2020. 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.

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

The legislation

[8] Section 577 of the Act obliges the 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 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 Commission to dismiss an application on its own initiative.

Decision

[13] In this case the Applicant has failed to comply with the Commission’s directions and was on notice that non-compliance would be grounds for the application to be dismissed.

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

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

[16] Consequently, my decision is that this application for an unfair dismissal remedy should now dismissed on the initiative of the Commission under section 587 (3) of the Act.

[17] An order [PR723915] to this effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

<PR723914>