Philip Bertram v Asset Partners Pty Ltd

[2012] FWA 8235

[2012] FWA 8235

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Philip Bertram
v
Asset Partners Pty Ltd
(U2012/11565)

COMMISSIONER WILLIAMS PERTH, 24 SEPTEMBER 2012

Termination of employment.

[1] This matter involves an application made by Mr Philip Bertram (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Asset Partners Pty Ltd (the Respondent).

[2] The Respondent objects to the application on the ground that it asserts the Applicant was not an employee but an independent contractor.

[3] On 13 August 2012 I wrote to the Applicant advising that the matter would be listed for a formal determinative proceeding and explaining the procedure involved. The letter requested that the Applicant advise by 20 August 2012 whether he wished to proceed with that hearing or to discontinue the application. That correspondence explained that lack of a response would be taken as an indication that he did not want to continue with the application and the matter would be dismissed.

[4] The Applicant by email on 20 August 2012 requested that he be allowed a further 2-3 weeks to respond and he was then advised by email that this was accepted and his response was required by 20 September 2012.

[5] To date there has been no further contact from the Applicant.

The legislation

[6] Section 577 of the Act obliges Fair Work Australia 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.

[7] Further section 578 of the Act relevantly requires that in performing functions or exercising powers in relation to a matter Fair Work Australia must take into account the Objects of the relevant Part of the Act.

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

[9] 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.

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

Decision

[11] In this case the Applicant has failed to comply with the directions to explain his intentions.

[12] The Respondent has raised a fundamental jurisdictional objection to the application.

[13] The Applicant has been on notice as to the consequence of not responding.

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

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

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

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

COMMISSIONER

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