Kimberley Grande v Podmore Holdings Pty Ltd

[2019] FWC 5045

[2019] FWC 5045

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kimberley Grande
v
Podmore Holdings Pty Ltd
(U2019/2467)

COMMISSIONER WILLIAMS PERTH, 22 JULY 2019

Application for an unfair dismissal remedy.

[1] This matter involves an application (Application) made by Mr Kimberley Grande (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Podmore Holdings Pty Ltd (the Respondent).

[2] The Respondent filed a Form F4 – Objections to unfair dismissal application (the Employer’s Response) on 4 April 2019.

[3] The Employer’s Response raised two jurisdictional objections being that: the Application was made out of time, having been lodged more than 21 days after the dismissal took effect (First Objection) and that the dismissal was consistent with the Small Business Fair Dismissal Code as the Respondent is a small business.

[4] The Application was listed for a conference with a Fair Work Commission (Commission) conciliator however the conciliation could not take place as the Respondent declined to participate requesting their objections to be dealt with in the first instance.

[5] Consequently, the Commission wrote to the Respondent on 9 May 2019, providing information regarding the Applicant’s lodgement situation being that, the final day of the 21 day period the Applicant had to file the application fell on a public holiday and when the Commission is closed the timeframe for making the application is extended until the next business day, and a preliminary view was held that the Applicant’s application was made within time. Attached to the correspondence was a copy of the relevant page from the Commission's bench book and a copy of section 36 of the Acts Interpretation Act 1901 (Cth).

[6] The Respondent was provided time to consider this information and was directed to advise if it wished to maintain its First Objection or not by 21 May 2019.

[7] The Applicant emailed Chambers on 7 May 2019, noting she was away for 3 weeks and would only be able to check emails.

[8] The Respondent in response to the Commissions information regarding the First Objection raised that the application was lodged by telephone and a completed application was not lodged within 14 calendar days, and irrespective of the application periods maintains the other objection that the Respondent is a small business employer and had followed all requirement of the Small Business Fair Dismissal Code.

[9] Subsequently, the Commission wrote to the parties directing them to provide information by way of witness statements or submissions regarding the Respondent’s objections and the merits of their case. The directions advised that if the Applicant did not comply with the directions the application may be dismissed.

[10] The Respondent filed it’s materials in accordance with the directions on 21 June 2019.

[11] The Applicant materials were due 12 July 2019.

[12] A further letter was sent to the Applicant on 15 July 2019, noting she had not complied with directions providing the Applicant with further time to lodge until 4:00pm Thursday, 18 July 2019. The letter stated non-compliance would mean the application would be dismissed.

[13] As at the date of this decision the Applicant has not responded to the Commission’s correspondence as directed nor otherwise contacted the Commission.

The Legislation

[14] 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.

[15] 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.

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

[17] 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.

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

Decision

[19] In this case the Applicant has repeatedly failed to comply with the Fair Work Commission’s directions and was on notice that non-compliance would be grounds for the application to be dismissed.

[20] The Applicant in the circumstances here has been given a fair go.

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

[22] 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

[23] An Order [PR710513] to this effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

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