Jo Cathie v Hancock Prospecting Pty Ltd

[2014] FWC 7020

[2014] FWC 7020

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jo Cathie
v
Hancock Prospecting Pty Ltd
(U2014/11349)

COMMISSIONER WILLIAMS PERTH, 7 OCTOBER 2014

Termination of employment.

[1] This matter involves an application made by Ms Jo Sara Cathie (the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Hancock Prospecting Pty Ltd.

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

[3] On 8 September 2014 correspondence was sent to the applicant, by both email and post, and also to her representative, by both email and facsimile, explaining how her application would now be dealt with and what the process for a determinative proceeding was and requesting that she advise the Commission by Tuesday, 16 September 2014 whether or not she wished to continue with her application.

[4] No response to this correspondence was received nor did the applicant or her representative otherwise contact the Commission.

[5] Consequently on 19 September 2014 a further letter was emailed and posted to the applicant. This letter was also sent to two email addresses for her representative and by facsimile. That letter referred to and included the previous correspondence and directed the applicant to urgently respond to the Commission. The letter stated that if a written response was not received by Wednesday, 1 October 2014 the Commission would take the lack of response as demonstrating the applicant did not want to continue with her application and consequently her application may be dismissed, referring to section 587 of the Act.

[6] As at the date of this decision neither the applicant nor her representative has responded as directed by the Commission nor have they otherwise contacted the Commission regarding this application.

The legislation

[7] 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.

[8] 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.

[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 the Commission to dismiss an application on its own initiative.

Decision

[12] In this case the applicant did not comply with the Commission’s first request to advise whether or not she wishes to continue with her application. She has then failed to comply with a direction from the Commission to respond in circumstances where she had been put on notice that non-compliance would be grounds for the application to be dismissed.

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

[14] The respondent employer is also entitled to a fair go including knowing whether or not the applicant is going to pursue her claim against them.

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

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

COMMISSIONER

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