Moore Brodrick v Monadelphous Engineering Associates Pty Ltd
[2012] FWA 6092
•18 JULY 2012
[2012] FWA 6092 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Moore Brodrick
v
Monadelphous Engineering Associates Pty Ltd
(U2012/8513)
COMMISSIONER WILLIAMS | PERTH, 18 JULY 2012 |
Termination of employment.
[1] This matter involves an application made by Mr Moore Brodrick (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Monadelphous Engineering Associates Pty Ltd (the Respondent).
[2] The matter was the subject of a conciliation conference but was not resolved at this stage and has been referred to me for determination.
[3] I wrote to the Applicant on 21 June 2012 advising that the matter would be listed for a formal determinative proceeding and explaining the procedure involved. The letter requested that the Applicant advise by 29 June 2012 whether he wished to proceed with that hearing or to discontinue the application. This correspondence was sent to the Applicant by email and post and also to his representative by email and facsimile.
[4] No response was received from the Applicant nor from his representative.
[5] A further request for a response was sent to the Applicant and separately to his representative by email on 4 July 2012 requesting he urgently respond. That correspondence explained that a lack of a response would be taken as an indication that he did not want to continue with the application.
[6] As at the date of this decision there has been no response from the Applicant nor from his representative of any kind.
The legislation
[7] Section 577 of the Act 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.
[8] Further section 578 of the Act 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.
[9] A section 394 application falls under Part 3-2 Unfair Dismissal of the Act.
[10] 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.
[11] Section 587(3) of the Act empowers Fair Work Australia to dismiss an application on its own initiative.
Decision
[12] In this case the Applicant has again failed to comply with the directions to explain his intentions.
[13] The Respondent has raised a jurisdictional objection to the application; that the Applicant does not meet the requirements of section 382(b) of the Act and so is not protected from unfair dismissal.
[14] In this case the Applicant has repeatedly failed to respond to the Tribunal. The Applicant has been on notice as to the consequence of further non compliance with the Tribunal’s requests.
[15] The Applicant in the circumstances has been given a fair go.
[16] Consequently my decision is that this application for an unfair dismissal remedy should now be dismissed on the initiative of Fair Work Australia under section 587(3) of the Act.
[17] An order to this effect will be issued in conjunction with this decision.
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