Peter Neal v Shark Bay Resources Pty Ltd T/A Shark Bay Resources

[2015] FWC 1024

[2015] FWC 1024

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Neal
v
Shark Bay Resources Pty Ltd T/A Shark Bay Resources
(U2014/10723)

COMMISSIONER WILLIAMS PERTH, 16 FEBRUARY 2015

Termination of employment.

[1] This matter involves an application made by Mr Peter Neal (the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Shark Bay Resources Pty Ltd T/A Shark Bay Resources.

[2] 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.

[3] Immediately thereafter on 13 August 2014 the parties were advised in writing as to the requirements to provide witness statements and submissions for arbitration and it was highlighted that not complying with the Fair Work Commission’s directions may mean the application is dismissed.

[4] On 15 October 2014 the applicant’s representative, the applicant himself and the respondent were sent a notice advising that the application was listed for hearing in Geraldton on 4 and 5 June 2015. This notice was sent to the applicant by email and post.

[5] Directions attached to the notice of listing directed the applicant to file with the Fair Work Commission and serve on the respondent written statements of evidence for each witness and an outline of submissions with any supporting documentation by 29 January 2015. Nothing was received from the applicant by this date.

[6] On 2 February 2015 a follow up letter was sent to the applicant’s representative and emailed and posted to the applicant regarding the failure to comply with the Fair Work Commission’s direction and directing that the materials be filed and served by 9 February 2015. The letter advised a further failure to comply with the Fair Work Commission’s direction would be grounds for the application to be dismissed without further notice.

[7] That same day the applicant’s legal representatives nominated in his application advised by email that they had ceased to act for the applicant.

[8] As at the date of this decision the applicant has not filed any materials as directed nor otherwise contacted the Fair Work Commission.

The legislation

[9] Section 577 of the Act obliges the Fair Work Commission 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.

[10] Further section 578 of the Act 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.

[11] A section 394 application falls under Part 3-2 Unfair Dismissal of the Act.

[12] 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.

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

Decision

[14] In this case the applicant has not complied with the Fair Work Commission’s direction to file witness statements and an outline of submissions in support of his application. Notwithstanding the original failure to comply the applicant has been advised he will be allowed additional time within which to comply with the Fair Work Commission’s directions to file this material but has still failed to do so.

[15] Further the applicant has not sought an extension of time to comply nor has he contacted the Fair Work Commission with any explanation for his repeated non-compliance.

[16] The applicant was put on notice since the conciliation conference that non-compliance could lead to his application being dismissed.

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

[18] The applicant in the circumstances here has been given a fair go but has failed to prosecute his case.

[19] 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.

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

COMMISSIONER

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