Jennifer McAuley v Marwin Cleaning Services Pty Ltd

[2017] FWC 3095

[2017] FWC 3095

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jennifer McAuley
v
Marwin Cleaning Services Pty Ltd
(U2017/3549)

COMMISSIONER WILLIAMS PERTH, 6 JUNE 2017

Termination of employment.

[1] This matter involves an application made by Mrs Jennifer McAuley (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Marwin Cleaning Services Pty Ltd (the Respondent).

[2] The application was the subject of a conference with a Fair Work Commission (Commission) conciliator however the matter was not resolved and so has been referred for determination.

[1] On 18 May 2017 a notice of listing was issued advising a directions conference by telephone would be held at 12.00 p.m. on Friday, 26 May 2017. The notice of listing explained that the Applicant’s failure to attend the directions conference may lead to the application being dismissed. This was sent to the Applicant by email and post.

[2] The Applicant failed to attend this directions conference. The Respondent did attend.

[3] On 26 May 2017 the Commission sent a letter to the Applicant by email and post seeking an explanation for her non-attendance and requesting she advise whether or not she wishes to proceed with her application by 2 June 2017. That letter explained the Commission would take a lack of response as indicating the Applicant wishes to discontinue the application.

[4] As at the date of this decision the Applicant has not responded to the letter as directed nor contacted the Commission.

The legislation

[5] 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.

[6] 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.

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

[8] 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.

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

Decision

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

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

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

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

[14] An order [PR593534] to this effect will be issued in conjunction with this decision.

COMMISSIONER

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