John Lawrence Spilsbury v BHP

[2022] FWC 553

[2022] FWC 553

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

John Lawrence Spilsbury
v

BHP

(U2021/11357)

COMMISSIONER WILLIAMS PERTH, 14 MARCH 2022

Application for an unfair dismissal remedy.

1. This matter involves an application made by Mr John Lawrence Spilsbury (Mr Spilsbury or the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is BHP (the Respondent).

1. The application was the subject of a conference with a Fair Work Commission (Commission) conciliator however the matter was not resolved and so was referred for arbitration.

1. Shortly thereafter on 24 January 2022 the parties were advised in writing as to the future requirements to provide witness statements and submissions for arbitration.

1. Correspondence was sent to the parties on 4 February 2022 with specific directions to each party. This was sent to the Applicant by email. The Applicant was directed to provide written materials in support of the application by 3 March 2022. Nothing was received from the Applicant by this date.

1. A follow up letter was emailed to the Applicant on 4 March 2022 regarding the failure to comply with the Commission’s direction and directing that the materials be filed and served by 10:00 a.m. 8 March 2022. The letter advised a further failure to comply with the Commission’s direction would be grounds for the application to be dismissed without further notice.

1. On 6 March 2022 Mr Spilsbury emailed my chambers advising he is the only witness and will be providing verbal evidence at the hearing.

1. On 8 March 2022 my associate replied to Mr Spilsbury and repeated that he was required to comply with the Commission’s directions and any evidence he wishes to give must be in the form of a written witness statement. He was given further time, until 10:00 a.m. 11 March 2022 to comply with the Commission’s directions and it was repeated that a failure to do so will result in the application being dismissed without further notice.

1. On 10 March 2022 Mr Spilsbury responded seeking guidance about preparing his evidence. The same day my associate replied advising the Commission cannot advise either party how they should prepare their case and provided him with a link to the Commission’s website with information about preparing for hearings. The email also reminded the Applicant that the Commission’s directions must be complied with.  

1. As at the date of this decision the Applicant has not filed any materials as directed.

The legislation

1. 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.

1. 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.

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

1. The Objects of Part 3-2 Unfair Dismissal are prescribed in section 381of 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.

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

Decision

1. 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.

1. The Applicant in the circumstances here has been given a fair go.

1. The Respondent is also entitled to a fair go including having the claim made against them determined within a reasonable time.

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

1. An Order [PR739262] to this effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

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