Nathan Hyams v Peedac Pty Ltd

[2017] FWC 550

[2017] FWC 550

FAIR WORK COMMISSION

DECISION

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

Nathan Hyams
v
Peedac Pty Ltd
(U2016/12740)

DEPUTY PRESIDENT BULL SYDNEY, 25 JANUARY 2017

Application for relief from unfair dismissal.

[1] This matter involves an application made by Mr Nathan Hyams (the applicant) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Peedac Pty Ltd.

[2] The application was the subject of a conference with a Fair Work Commission conciliator on 15 November 2016 however the matter was not resolved and so has been referred to me for determination.

[3] On 15 November 2016 correspondence was sent to the applicant, by email, explaining how his application would now be dealt with and what the process for a determinative proceeding was.

[4] On 22 November the matter was listed for a directions teleconference before me, to be held on 6 December 2016. Both parties were emailed a notice of listing on 22 November 2016 and were reminded of the listing in an email sent by my associate on 1 December 2016.

[5] The directions conference of 6 December 2016 was attended by the respondent’s representatives from the Chamber of Commerce and Industry of Western Australia. The applicant did not attend and did not notify the Commission that he would not be attending. A voicemail was left on the applicant’s telephone by my associate at the time of the conference, requesting the applicant to contact my Chambers.

[6] No response to this correspondence was received nor did the applicant otherwise contact the Commission.

[7] On 7 December 2016 a further letter was emailed to the applicant. That letter referred to the teleconference on the previous day and directed the applicant to contact the Commission at his earliest convenience.

[8] On 19 December 2016 another email was sent to the applicant stating that several attempts had been made to contact him by telephone and directing him to contact the Commission by close of business the following day. The email advised that if a written response was not received the applicant risked his application being dismissed.

[9] On 9 January 2017 a final email was sent to the applicant directing him to contact the Commission by 13 January 2017 or the Commission would take the lack of response as demonstrating the applicant did not want to continue with his application and consequently his application may be dismissed.

[10] As at the date of this decision the applicant has not responded as directed by the Commission nor has he otherwise contacted the Commission regarding this application.

The legislation

[11] The Objects of Part 3-2 Unfair Dismissal are prescribed in s.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.

[12] Section 577 of the Act obliges the 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.

[13] Further s.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.

[14] An s.394 application falls under Part 3-2 Unfair Dismissal of the Act.

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

Decision

[16] In this case the applicant did not comply with a direction to attend a telephone conference on 6 December 2016 and failed to respond to further email and telephone requests to advise on the status of his application.

[17] The applicant in the circumstances here has been given ample opportunity to pursue his application and has been put on notice that non-compliance with the Commission’s requests would be grounds for the application to be dismissed.

[18] Consequently my decision is that the applicant’s application for an unfair dismissal remedy should now be dismissed under s.587(3) of the Act.

DEPUTY PRESIDENT

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