Jaime Travis v Rayson Management Pty Ltd T/A Skeetas Cafe and Restaurant

[2013] FWC 2851

[2013] FWC 2851

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jaime Travis
v
Rayson Management Pty Ltd T/A Skeetas Cafe and Restaurant
(U2013/6751)

COMMISSIONER WILLIAMS PERTH, 8 MAY 2013

Termination of employment.

[1] This matter involves an application made by Mr Jaime Travis (the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Rayson Management Pty Ltd T/A Skeetas Cafe and Restaurant (the respondent).

[2] The application was the subject of a conference listed by a Fair Work Commission conciliator however the applicant failed to participate in that conference. The file contains a note from the conciliator recording that the applicant subsequently explained that he was unaware of the scheduled conciliation and was busy and could not participate. The applicant told the conciliator he did not receive a phone message nor had he received any materials from the Commission. The conciliator confirmed with the applicant his contact details and these were recorded.

[3] This application has since been referred to myself for determination.

[4] Consequently I wrote to the applicant advising that his application would be listed for a formal determinative proceeding and explaining the procedure involved. The letter dated 12 April 2013 directed the applicant to advise whether he wished to proceed with that hearing or to discontinue the application by no later than 22 April 2013. This letter was sent to two email addresses and the postal address provided by the applicant.

[5] No response was received from the applicant. Consequently further correspondence was sent to the applicant on 24 April 2013 directing him to respond to the previous letter by no later than 6 May 2013.

[6] As at the date of this decision no response has been received from the applicant nor has there been any communication from him of any kind.

[7] That latter 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.

The legislation

[8] 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.

[9] 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.

[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 Fair Work Commission to dismiss an application on its own initiative.

Decision

[13] In this case the applicant has twice failed to comply with directions to explain his intentions.

[14] The applicant has been on notice as to the consequence of further non compliance with the Commission’s direction.

[15] The respondent employer is entitled to a fair go including having the application made against them progressed within a reasonable time.

[16] The applicant in the circumstances here has been given a fair go.

[17] 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.

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

COMMISSIONER

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