Joey Sullivan v Lawton McIvor Pty Ltd T/A Statewide Demolition

[2016] FWC 6562

[2016] FWC 6562

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joey Sullivan
v
Lawton McIvor Pty Ltd T/A Statewide Demolition
(U2016/8655)

COMMISSIONER WILLIAMS PERTH, 13 SEPTEMBER 2016

Termination of employment.

[1] This matter involves an application made by Mr Joey Sullivan (Mr Sullivan or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Lawton McIvor Pty Ltd T/A Statewide Demolition (the respondent).

[2] The application was listed for a conference with a Fair Work Commission (Commission) conciliator at 12.15 p.m. on Thursday, 25 August 2016 however multiple attempts made to contact Mr Sullivan at the time of the conference were unsuccessful and he did not attend.

[3] Subsequently on the same day, 25 August 2016, the Commission sought an explanation from the applicant for his non-attendance and requested he advise whether he wished to proceed with his application. The applicant did not respond nor contact the Commission and consequently the matter was referred to me for determination.

[4] Shortly thereafter a notice of listing was issued advising a directions conference by telephone would be held at 11.30 a.m. on Monday, 12 September 2016. The notice of listing included a note that explained Mr Sullivan is directed to participate in the directions conference and failure to do so will be grounds for the application being dismissed. This was sent to the applicant by email and post.

[5] The applicant failed to attend this directions conference.

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

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 has failed to comply with the Commission’s direction by failing to participate in a conference and previously failing to attend another conference and ignored requests to explain his failure to attend.

[13] The applicant was on notice that his failure to attend the directions conference would result in his application being dismissed. The applicant is either unwilling or unable to comply with the Commission’s directions.

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

[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 the Commission 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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