Joshua Gilpin v BHP Billiton Iron Ore Pty Ltd

[2016] FWC 5813

[2016] FWC 5813

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joshua Gilpin
v
BHP Billiton Iron Ore Pty Ltd
(U2016/2920)

COMMISSIONER WILLIAMS PERTH, 18 AUGUST 2016

Termination of employment.

[1] This matter involves an application made by Mr Joshua Gilpin (Mr Gilpin or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is BHP Billiton Iron Ore Pty Ltd (the respondent).

[2] The application was initially listed for a conference with a Fair Work Commission (Commission) conciliator at 9.15 a.m. on Thursday, 14 July 2016 however Mr Gilpin sent an email to the Commission requesting an adjournment.

[3] Mr Gilpin’s adjournment request was granted and the conference was relisted to 9.15 a.m. on Wednesday, 27 July 2016. Multiple attempts made to contact Mr Gilpin at the time of the conference were unsuccessful and he did not attend. The respondent did attend the conference.

[4] Subsequently on Friday, 29 July 2016 the Commission sought an explanation from the applicant for his unavailability 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.

[5] Shortly thereafter a letter attaching a notice of listing was issued advising a directions conference by telephone would be held at 10.00 a.m. on Wednesday, 17 August 2016. The letter explained that given the applicant’s previous failure to participate in the conference on 27 July 2016 and his failure to respond to requests to explain his failure to participate if the applicant does not attend the directions conference his application will be dismissed. This was sent to the application by email and express post.

[6] The applicant failed to attend this directions conference however the respondent did attend.

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

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 direction by failing to participate in a conference and previously failed to attend another conference and ignored requests to explain his failure to attend.

[14] 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.

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

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

[17] 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.

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

COMMISSIONER

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