Peter De Chelard v Kalgoorie Liquor Pty Ltd

[2020] FWC 544

[2020] FWC 544

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter De Chelard
v
Kalgoorie Liquor Pty Ltd
(U2019/11376)

COMMISSIONER WILLIAMS PERTH, 4 FEBRUARY 2020

Application for an unfair dismissal remedy.

[1] This matter involves an application made by Mr Peter De Chelard (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Kalgoorie Liquor Pty Ltd (The Respondent).

[2] The Respondent filed a Form F3 - Employer’s Response to Unfair Dismissal Application on 10 November 2019.

[3] The application was the subject of a conference with a Fair Work Commission (Commission) Conciliator however the matter was not resolved and has been referred to myself for determination.

[4] Consequently, the Commission wrote to the parties on 18 December 2019, setting down the matter for hearing issuing directions to the parties to file their materials and it was highlighted that not complying with the Commissions directions may mean the application is dismissed.

[5] The Commissions directions required the Applicant to file their materials by Wednesday, 22 January 2020.

[6] Nothing was received from the Applicant. A follow up letter was emailed and posted to the Applicant on Friday, 24 January 2020, regarding the failure to comply with the Commissions direction and providing further time for the materials be filed and served by Friday, 31 January 2020. The letter advised a further failure to comply with the Commissions direction would be grounds for the application to be dismissed without further notice.

[7] As at the date of this decision the Applicant has not filed any materials as directed nor otherwise contacted the Commission.

The Legislation

[8] Section 577 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.

[9] Further section 578 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.

[10] A section 394 application falls under Part 3-2 unfair dismissal of the Act.

[11] 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.

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

Decision

[13] In this case the Applicant has failed to comply with the Commissions directions and was on notice since the conciliation conference that non-compliance would be grounds for the application to be dismissed.

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

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

[16] Consequently, my decision is that this application for an unfair dismissal remedy should now dismissed on the initiative of the Commission under section 587(3) of the Act.

[17] An order [PR716369] to this effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

<PR716368>