Ireland v Mermaid Marine Vessel Operations Pty Ltd

[2016] FWC 2910

[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

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