Leah Yarran v Guma ICRG JV Pty Ltd

[2015] FWC 1020

[2015] FWC 1020

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leah Yarran
v
Guma ICRG JV Pty Ltd
(U2014/13783)

COMMISSIONER WILLIAMS PERTH, 16 FEBRUARY 2015

Termination of employment.

[1] This matter involves an application made by Ms Leah Yarran (the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Guma ICRG JV Pty Ltd.

[2] The application was the subject of a conference with a Fair Work Commission conciliator however the applicant did not attend and the matter was referred for arbitration.

[3] On 17 December 2014 the parties were advised in writing as to the requirements to provide witness statements and submissions for arbitration and it was highlighted that not complying with the Fair Work Commission’s directions may mean the application is dismissed.

[4] Correspondence was sent to the parties on 7 January 2015 with specific directions to each party. This was sent to the applicant by post. The applicant was directed to provide written materials in support of the application by 28 January 2015. Nothing was received from the applicant by this date.

[5] A follow up letter was express posted to the applicant on 30 January 2015 regarding the failure to comply with the Fair Work Commission’s direction and directing that the materials be filed and served by 6 February 2015. The letter advised a further failure to comply with the Fair Work Commission’s direction would be grounds for the application to be dismissed without further notice.

[6] A short time later Australia Post contacted the Fair Work Commission and advised the address provided for the applicant did not exists. That same day my associate attempted to contact the applicant on the number provided for her in the application however the number was for another individual who did not know the applicant.

[7] The Fair Work Commission has not been provided with any other contact details for the applicant.

[8] As at the date of this decision the applicant has not filed any materials as directed nor otherwise contacted the Fair Work Commission.

The legislation

[9] Section 577 of the Act obliges the Fair Work 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.

[10] Further section 578 of the Act 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.

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

[12] 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.

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

Decision

[14] In this case the applicant did not attend the conciliation conference and has failed to comply with the Fair Work Commission’s directions and was on notice since the conciliation conference that non-compliance would be grounds for the application to be dismissed.

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

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

[17] Consequently my decision is that this application for an unfair dismissal remedy should now dismissed on the initiative of the Fair Work 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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