Matthew Scott v MAS Australasia Pty Ltd T/A an Ausgroup Company

[2011] FWA 8853

[2011] FWA 8853

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Scott
v
MAS Australasia Pty Ltd T/A An Ausgroup Company
(U2011/11261)

COMMISSIONER WILLIAMS PERTH, 19 DECEMBER 2011

Termination of employment.

[1] This matter involves an application made by Mr Matthew Scott (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The Respondent is MAS Australasia Pty Ltd T/A An Ausgroup Company.

[2] The application was the subject of a conference with a Fair Work Australia Conciliator however it was not resolved and so it has been referred to myself for determination.

[3] On 21 October 2011 a letter was sent by post and email to the Applicant requesting he advise whether he wished to continue with his application to a determinative proceeding or not. The letter directed the Applicant to respond in writing by Monday, 31 October 2011.

[4] Having heard nothing from the Applicant in response to this first letter, on 7 November 2011 I wrote a second letter to Mr Scott (attaching the first letter) and advising that if a response was not received by Thursday 17 November I would take his lack of response as meaning that he was discontinuing his application.

[5] As at the date of this decision there has been no response from the Applicant nor contact from him of any kind.

The legislation

[6] Section 577 obliges Fair Work Australia 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.

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

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

[9] 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 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.

[10] Section 587(3) empowers Fair Work Australia to dismiss an application on its own initiative.

Decision

[11] In this case the Applicant has twice failed to respond to requests from the Tribunal to confirm he wishes to proceed with his application.

[12] The Applicant has had a reasonable opportunity to contact the Tribunal but has failed to do so. The Applicant has been given a fair go in the circumstances.

[13] The Respondent employer is also entitled to a fair go including having the claim made against them determined promptly and with certainty. The Respondent has in its response to the application raised objections on the grounds that the Applicant is not a person protected from unfair dismissal, see section 382, and so is not able to make this application and separately that he has in any event not completed the pre-requisite minimum employment period to be able to make such an application.

[14] On the materials provided by the Respondent these objections seem to be well founded and so in all likelihood this application would have been dismissed had the Applicant sought for his application to be determined.

[15] In the circumstances then this application for an unfair dismissal remedy is dismissed on the initiative of Fair Work Australia under section 587(3) of the Act.

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

COMMISSIONER

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