Hong Nguyen v H&K (WA) Pty Ltd as Trustee for H&K Family Trust T/A Gascoyne Bakery Cafe

[2021] FWC 967

[2021] FWC 967

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hong Nguyen
v
H&K (WA) Pty Ltd as Trustee for H&K Family Trust T/A Gascoyne Bakery Cafe
(U2020/16257)

COMMISSIONER WILLIAMS PERTH, 23 FEBRUARY 2021

Application for an unfair dismissal remedy.

[1] This matter involves an application made by Mrs Hong Nguyen (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is H&K (WA) Pty Ltd as Trustee for H&K Family Trust T/A Gascoyne Bakery Café (the Respondent).

[2] The application was listed for a conciliation conference with a Fair Work Commission conciliator on 20 January 2021 however it did not proceed because the Applicant was unable to be contacted.

[3] That same day the Fair Work Commission wrote to the Applicant requesting she advise whether she wanted the matter to proceed for a further conciliation and to provide her availability. The Applicant did not respond to this correspondence so on 27 January 2021 correspondence was sent advising the matter was referred for arbitration.

[4] On 5 February 2021 I emailed correspondence to the parties with specific directions to the Applicant to provide written materials in support of the application by 19 February 2021. The letter advised if the Applicant does not comply with the Fair Work Commission’s directions the application will be dismissed without further notice.

[5] Nothing was received from the Applicant by this date.

[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 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 respond to the Fair Work Commission’s correspondence and comply with 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 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 [PR727211] to this effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

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