Kathleen Vale v BHP Billiton Nickel West Pty Ltd

[2020] FWC 5808

[2020] FWC 5808

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kathleen Vale
v
BHP Billiton Nickel West Pty Ltd
(U2020/12632)

COMMISSIONER WILLIAMS PERTH, 30 OCTOBER 2020

Application for an unfair dismissal remedy.

[1] This matter involves an application made by Kathleen Vale (the Applicant) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The respondent is BHP Billiton Nickel West Pty Ltd (the Respondent).

[2] The application was referred for a conference with a Fair Work Commission conciliator, however the conference was cancelled and so the matter has been referred for determination.

[3] The Respondent has raised jurisdictional objections to the application, namely that the Applicant had not completed the minimum employment period of six months – where the employer employs 15 or more employees (ss 382 and 383 of the Act).

[4] A request for information was sent to the Applicant by email on 7 October 2020.

[5] The request for information was for the purpose of determining the jurisdictional objection. The matter was proposed to be dealt with ‘on the papers’ to minimise cost to both parties.

[6] No response was received from the Applicant by the due date of 22 October 2020.

[7] Further correspondence was sent to the Applicant again requesting their response by 28 October 2020. This was also sent by email.

[8] That correspondence explained that a failure to comply would be taken as an indication that they did not want to continue with the application and the matter would be dismissed.

[9] As at the date of this decision there has been no response from the Applicant.

The legislation

[10] Section 577 obliges the Fair Work Commission to perform its functions and exercise its powers in a manner that is fair and just and is quick, informal and avoids unnecessary technicalities, and is open and transparent and promotes harmonious and cooperative workplace relations.

[11] Further, section 578 relevantly requires that in performing functions or exercising powers in relation to a matter the Fair Work Commission must take into account the objects of the relevant part of the Act.

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

[13] The objects of Part 3-2 Unfair Dismissal are prescribed in section 381. These objects include the establishment of procedures dealing with unfair dismissal that are quick, flexible and informal, 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.

[14] Section 587(3) empowers the Fair Work Commission to dismiss an application on its own initiative.

Decision

[15] In this case the Applicant has repeatedly failed to comply with the directions to provide materials in response to the jurisdictional objection. Without these, it is not possible for the Respondent to prepare a case in reply.

[16] The Applicant is unable or unwilling to provide the materials required of them. The Applicant has been on notice as to the consequence of further non-compliance.

[17] The Respondent employer is entitled to a fair go including having the claim made against them particularised so that they may properly respond and prepare themselves. They are entitled to have the application made against them determined within a reasonable time.

[18] Consequently, my decision is that this application, for an unfair dismissal remedy, should now be dismissed on the initiative of the Fair Work Commission under section 587(3) of the Act.

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

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