Mrs Betty Malayta v Real Estate Property Shop Network Pty Ltd T/A Hedland Property Shop

[2019] FWC 2573

[2019] FWC 2573

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mrs Betty Malayta
v
Real Estate Property Shop Network Pty Ltd T/A Hedland Property Shop
(U2019/706)

COMMISSIONER WILLIAMS PERTH, 17 APRIL 2019

Application for an unfair dismissal remedy.

[1] This matter involves an application made by Mrs Betty Malayta (Mrs Malayta or the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Real Estate Property Shop Network Pty Ltd T/A Hedland Property Shop (the Respondent).

[2] The form F3−Employer’s response to unfair dismissal application (form F3) lodged by the Respondent objected to the application on the ground that the Applicant’s dismissal was a case of genuine redundancy.

[3] The application was the subject of a conference with a Fair Work Commission conciliator however the matter was not resolved and so has been referred for determination.

[4] A jurisdictional objection to the application was raised, namely that the Applicant had not met the minimum employment period as required by section 382 of the Act.

[5] I wrote to the Applicant inviting her to provide information in response to the jurisdictional objection. The directions were for the purposes of determining the jurisdictional objection and whether the application could proceed to a substantive hearing. The matter was proposed to be dealt with ‘on the papers’ to minimise cost to both parties. The letter was sent by email and post.

[6] No response was received.

[7] Further correspondence was sent to the Applicant again requesting her response to the jurisdictional objection. This was also sent by email and post.

[8] That correspondence explained that failure to again comply with the directions would be taken as demonstrating she did not want to continue with the application and the matter would be dismissed and the file closed.

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

[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 failed to comply with the directions to provide a response to the jurisdictional objection.

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

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

[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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