Jaydee Bennett-Hughes v Cometti Group Pty Ltd T/A Cometti Tyre Wholesalers

[2012] FWA 10654

[2012] FWA 10654

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jaydee Bennett-Hughes
v
Cometti Group Pty Ltd T/A Cometti Tyre Wholesalers
(U2012/14368)

COMMISSIONER WILLIAMS PERTH, 21 DECEMBER 2012

Termination of employment.

[1] This matter involves an application made by Ms Jaydee Bennett-Hughes (the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Cometti Group Pty Ltd T/A Cometti Tyre Wholesalers.

[2] The respondent objects to the application, asserting the applicant was not dismissed but rather she abandoned her employment.

[3] On 23 November 2012 I wrote to the applicant advising that the matter would be listed for a formal determinative proceeding and explaining the procedure involved. The letter requested that the applicant advise, by no later than 3 December 2012, whether she wished to proceed with a hearing or to discontinue the application. That letter was posted and emailed to the applicant.

[4] No response was received.

[5] A follow up letter was sent to the applicant by both email and post on 5 December 2012. That correspondence explained that the lack of a response by 17 December 2012 would be taken as an indication that she did not want to continue with the application and the matter would be dismissed.

[6] As at the date of this decision there has been no response from the applicant and no other contact from her.

The legislation

[7] Section 577 of the Act obliges Fair Work Australia 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 Fair Work Australia 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 Fair Work Australia to dismiss an application on its own initiative.

Decision

[12] In this case the respondent has raised jurisdictional objections to the application, namely that the applicant was not dismissed.

[13] The applicant has twice failed to comply with directions to explain her intentions.

[14] The applicant has been put on notice as to the consequence of not responding.

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

[16] Consequently my decision is that this application for an unfair dismissal remedy should now be dismissed on the initiative of Fair Work Australia under section 587(3) of the Act.

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

COMMISSIONER

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