Johnny Burgess v Omega Security Services Pty Ltd

[2013] FWC 9807

[2013] FWC 9807

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Johnny Burgess
v
Omega Security Services Pty Ltd
(U2013/11573)

COMMISSIONER WILLIAMS PERTH, 13 DECEMBER 2013

Termination of employment.

[1] This matter involves an application made by Mr Johnny Burgess (the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Omega Security Services Pty Ltd (the respondent).

[2] On 10 September 2013 a notice of listing was emailed and posted to the applicant advising that the matter was listed for hearing on Wednesday, 19 February 2014 with attached directions explaining the requirements for the parties to file and serve their written materials.

[3] Subsequently it became necessary to change the date of the hearing and consequently on 7 October 2013 an amended notice of listing was emailed and posted to the applicant. That notice of listing stated that the hearing would now be held on Friday, 28 February 2014. The notice of listing attached amended directions that required the applicant to provide to the Commission and to the respondent witness statements and an outline of submission by Friday, 29 November 2013.

[4] On Wednesday, 16 October 2013 the applicant emailed my associate. The applicant’s email was in reply to the email that had been sent to him with the amended notice of listing on 7 October 2013. The applicant enquired about legal advice and representation and my associate responded that same day with information. My associate’s email concluded by drawing the applicant’s attention to the amended directions which she explained outlined what each party was required to do in preparation for the hearing and by when.

[5] As at the date of this decision the applicant has not filed any witness statements or submissions in accordance with the directions.

[6] In light of the applicant’s non-compliance a notice of listing was emailed and posted to him advising that a non-compliance hearing would be held on Thursday, 12 December 2013 for the applicant to show cause why his application should not be dismissed due to his failure to comply with the Commission’s directions. The notice of listing says that non-attendance by the applicant may result in the application being dismissed.

[7] The applicant did not attend the non-compliance hearing and has not been in contact with the Commission since his email on 16 October 2013.

The legislation

[8] 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.

[9] 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.

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

Decision

[13] In this case the applicant has failed to comply with the Commission’s directions to file materials in support of his application. Further the applicant has not attended the non-compliance hearing of which he was notified.

[14] The applicant has not provided any reasons for his non-compliance with the directions or for his failure to attend the listed hearing. The applicant in the circumstances here has been given a fair go.

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

[16] 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.

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

COMMISSIONER

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