Peter Meredith v Access Plus WA Deaf

[2019] FWC 5490

[2019] FWC 5490

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Meredith
v
Access Plus WA Deaf
(U2019/3577)

COMMISSIONER WILLIAMS PERTH, 7 AUGUST 2019

Application for an unfair dismissal remedy.

[1] This matter involves an application made on 29 March 2019 (Application), by Peter Meredith (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Access Plus WA Deaf (the Respondent).

[2] The Respondent filed a Form F3-Employer’s Response to Unfair Dismissal Application (the Employer’s Response) on 15 April 2019.

[3] The Employer’s Response raised two jurisdictional objections being that: the Application was made out of time, having been lodged more than 21 days after the dismissal took effect and that the dismiss was a case of genuine redundancy.

[4] The Application was the subject of a conciliation conference conducted by a Fair Work Commission Conciliator, however the matter was not resolved and has been referred to myself for determination.

[5] Consequently, the Commission wrote to the parties on 10 June 2019, directing the Respondent to provide further details specifying any jurisdictional objections they have due to the lack of information contained within the Form F3.

[6] Compliant with the Commission’s direction on 24 June 2019, the Respondent provided details of their jurisdictional objections and requesting these be considered separately, to both the Commission and the Applicant.

[7] Correspondence was then sent to the parties on 2 July 2019, requesting the Applicant now having received the Respondents submissions, to provide submissions in response to the Respondent’s objections and to clarify that his application for an unfair dismissal remedy should be understood to concern only the full-time employment as the Service & Business Development Manager by 4.00pm, 16 July 2019.

[8] The Applicant emailed Chambers on 16 July 2019 at 3.53pm stating he had a number of personal and IT issues and will be lodging his response but unable to do so by 4.00pm, noting he hoped that the Commissioner will be lenient as the incidents were completely out of his control.

[9] Nothing was received from the Applicant. A follow up letter was emailed to the Applicant on 22 July 2019, regarding the failure to comply with the Commissions direction and directing that the materials be filed and served by 24 July 2019. The letter advised a further failure to comply with the Commissions direction would be grounds for the application to be dismissed without further notice.

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

The Legislation

[11] 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.

[12] 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.

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

[14] 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.

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

Decision

[16] 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.

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

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

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

[20] An order [PR711106] to this effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

<PR711105>