Ireland v Mermaid Marine Vessel Operations Pty Ltd

[2016] FWC 2910

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Zack Ireland
v
Mermaid Marine Vessel Operations Pty Ltd
(U2015/7219)
COMMISSIONER WILLIAMS	PERTH, 10 MAY 2016
Termination of employment.

[1] This matter involves an application made by Mr Zack Ireland (Mr Ireland or the

applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal

remedy. The respondent is Mermaid Marine Vessel Operations Pty Ltd (the respondent).

[2] The application, together with seven related unfair dismissal remedy applications, was

referred to me for determination in May 2015.

[3] The respondent objected to all eight applications on the grounds that the dismissal of

each applicant was a case of genuine redundancy.

[4] Subsequently directions were issued and the parties were advised all eight matters

would be heard on Wednesday, 16 December 2015 and Thursday, 17 December 2016. All

eight applicants were represented by the Maritime Union of Australia (MUA).

[5] On 11 December 2016 the MUA advised the Commission all eight matters had settled

in-principle and requested the hearing dates be vacated to allow the parties to finalise the

settlement. Accordingly, the Commission cancelled the hearing.

[6] On 21 April 2016 the MUA filed a notice of representative ceasing to Act for Mr

Ireland and seven notices of discontinuance for the other unfair dismissal remedy

applications.

[7] On 26 April 2016 I wrote to Mr Ireland requesting he advise by Friday, 6 May 2016

whether he wished to proceed with or discontinue his application. The letter requested that, if

he wished to proceed, he advise the names of all the witnesses he intended to call and the

matter would be set down for hearing and directions would be issued. The letter was sent by

email and express post.

[8] That correspondence explained that lack of a response would be taken as an indication

that he did not want to continue with the application and the matter would be dismissed.
[2016] FWC 2910

[9] As at the date of this decision there has been no response or contact from the

applicant.

The legislation

[10] 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.

[11] 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.

[12] A section 394 application falls under Part 3-2 Unfair Dismissal of the Act.
[13] 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.

[14] Section 587 (3) of the Act empowers the Commission to dismiss an application on its

own initiative.

Decision

[15] In this case the applicant has failed to comply with the directions to explain his

intentions.

[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 Commission under section 587 (3) of the Act.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the case of Ireland v Mermaid Marine Vessel Operations Pty Ltd, the applicant, Zack Ireland, sought a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 against Mermaid Marine Vessel Operations Pty Ltd. The matter was initially referred to the Fair Work Commission in May 2015. The respondent opposed the applications, arguing that the dismissals were genuine redundancies. The Commission issued directions for a hearing, which was later cancelled when the parties settled in principle. However, the applicant's representative ceased acting for him, and a notice of discontinuance was filed for the other applications. The Commission then requested the applicant to clarify his intentions to proceed with the application, with a specified deadline.

The legal issues in this case centred around whether the Commission could dismiss the application on its own initiative due to the applicant's failure to comply with the directions. The relevant sections of the Fair Work Act 2009 that were pertinent to this case included sections 577, 578, 587(3), and 394. These sections outline the principles of fairness and the procedural requirements for handling unfair dismissal applications. Specifically, section 587(3) empowered the Commission to dismiss an application if the applicant did not comply with the procedural requirements.

The Commission, after considering the procedural history and the applicant's failure to respond to the request for clarification, concluded that the applicant had not complied with the directions. The Commission found that the respondent was entitled to a fair go, which included having the claim determined within a reasonable time. Given the applicant's lack of response, the Commission decided to dismiss the application on its own initiative under section 587(3) of the Act. The Commission emphasised that the applicant had been given a fair opportunity to respond and that the respondent deserved to have the matter resolved promptly.

Consequently, the Commission dismissed the unfair dismissal application made by Zack Ireland against Mermaid Marine Vessel Operations Pty Ltd. An order to this effect was issued, and the matter was concluded with the dismissal of the application. This decision underscores the importance of procedural compliance and the rights of both parties in the context of unfair dismissal applications under the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established