Jeremy Gilling v Teckheads Pty Ltd T/A Datamerge

[2012] FWA 8150

[2012] FWA 8150

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jeremy Gilling
v
Teckheads Pty Ltd T/A Datamerge
(U2012/11110)

COMMISSIONER WILLIAMS PERTH, 19 SEPTEMBER 2012

Termination of employment.

[1] This matter involves an application made by Jeremy Gilling (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Teckheads Pty Ltd T/A Datamerge (the Respondent).

[2] A number of conciliation conferences were listed however the Applicant failed to participate in these.

[3] I wrote to the Applicant advising that the matter would be listed for a formal determinative proceeding and explaining the procedure involved. The letter sent by post and email requested that the Applicant advise whether he wished to proceed with that hearing or to discontinue the application by 24 August 2012.

[4] No response was received. A follow up letter was sent by post and email on 28 August 2012 and requested his response by 7 September 2012 and advised that absent a reply his application may be dismissed.

[5] In reply the applicant emailed my chambers and advised that he would have a final decision to us by the date required in the most recent request being 7 September 2012.

[6] By 12 September 2012 no response from the Applicant had been received and a final request was sent by email requiring a reply by 17 September 2012 and stating that a lack of a response would mean the matter would be dismissed.

[7] To date no response has been received.

The legislation

[8] 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.

[9] 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.

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

Decision

[13] The Respondent has raised an objection to the application, namely that the dismissal was consistent with the Small Business Fair Dismissal Code.

[14] In this case the Applicant has repeatedly failed to comply with the directions to explain his intentions.

[15] The Applicant has been on notice as to the consequence of further non compliance.

[16] The Respondent employer is entitled to a fair go including to have the application 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 dismissed on the initiative of Fair Work Australia 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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