Jai Lovett v Angie's Cafe Pty Ltd T/A Angie's Cafe

[2018] FWC 5751

[2018] FWC 5751

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jai Lovett
v
Angie’s Cafe Pty Ltd T/A Angie’s Cafe
(U2018/7179)

COMMISSIONER WILLIAMS PERTH, 12 SEPTEMBER 2018

Termination of employment.

[1] This matter involves an application made by Mr Jai Lovett (Mr Lovett or the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Angie’s Cafe Pty Ltd T/A Angie’s Café (the Respondent).

[2] The Respondent objects to the application on the ground that business is a small business and the dismissal was consistent with the Small Business Fair Dismissal Code.

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

[4] Immediately thereafter on 9 August 2018 the parties were advised in writing as to the future requirements to provide witness statements and submissions for arbitration and it was highlighted that not complying with the Fair Work Commission’s directions may mean the application is dismissed.

[5] A Notice of Listing was sent to the parties on 14 August 2018 advising the matter would be heard in Geraldton on 2 October 2018 and with specific directions to each party. This was sent to the Applicant by email and priority post. The Applicant was directed to provide written materials in support of the application by 29 August 2018. Nothing was received from the applicant by this date.

[6] A follow up letter was emailed and express posted to the Applicant on 30 August 2018 regarding the failure to comply with the Fair Work Commission’s direction and directing that the materials be filed and served by 6 September 2018. The letter advised a further failure to comply with the Fair Work Commission’s direction would be grounds for the application to be dismissed without further notice.

[7] On 6 September 2018 the Applicant advised by email that he is unable to supply written evidence as he is currently working in a remote location. No additional information was provided by the Applicant.

[8] A further Notice of Listing was sent to the parties on 7 September 2018 for a non-compliance hearing by telephone at 10:30 a.m. on 11 September 2018. This was sent to the Applicant by email and priority post. The Notice of Listing advised the Applicant would be contacted on his mobile at the time of the hearing and that failure to appear may result in his application being dismissed. The Respondent was not required to attend.

[9] At 10:25 a.m. on 11 September 2018 my associate attempted to contact the Applicant on his mobile. There was no answer and a message was left for the Applicant advising the Fair Work Commission was calling to connect him to the non-compliance hearing and that further attempts will be made shortly. My associate made three further attempts to call the Applicant and again these were unsuccessful.

[10] 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

[11] 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, transparent and promotes harmonious and cooperative workplace relations.

[12] 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.

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

[14] 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.

[15] Section 587(3) of the Act empowers the Fair Work Commission to dismiss an application on its own initiative.

Decision

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

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

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

[19] 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.

[20] An order [PR700340] to this effect will be issued in conjunction with this decision.

Appearances:

No appearance by the Applicant.

Hearing details:

2018.

Perth:

September 11.

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<PR700339>