Philip Foley v John Holland Group Pty Ltd

[2017] FWC 1695

[2017] FWC 1695

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Philip Foley
v
John Holland Group Pty Ltd
(U2016/14749)

COMMISSIONER WILLIAMS PERTH, 27 MARCH 2017

Termination of employment.

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

[2] The application was the subject of a conference with a Fair Work Commission (Commission) conciliator however the matter was not resolved and so has been referred for determination.

[3] On 1 February 2017 the parties participated in a Directions Conference by telephone with Deputy President Bull. Subsequently a notice of listing was sent to the Applicant by email and post on 10 February 2017 notifying of the hearing date and with Directions to both parties. In compliance with the Directions the Respondent provided its materials by 22 February 2017. The Applicant was directed to provide written materials in support of the application by 15 March 2017.

[4] On 8 March 2017 the Commission received an email from the Applicant seeking clarification regarding the Respondent’s witnesses and making reference to being unwell. That same day my associate replied to the Applicant explaining that if an adjournment of the hearing is sought he would need to provide supporting medical evidence. Nothing has been received from the Applicant in response to this email.

[5] Nothing was received from the Applicant by 15 March 2017 in compliance with the Commission’s directions.

[6] A further letter was emailed and express posted to the Applicant on 16 March 2017 regarding the failure to comply with the Commission’s direction and directing him to provide the materials by 23 March 2017 and advising a further failure to comply would be grounds for the application to be dismissed.

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

The legislation

[8] Section 577 of the Act obliges the 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.

[9] Further section 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.

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

Decision

[13] In this case the Applicant has failed to comply with the Commission’s directions and was on notice 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 [PR591291] to this effect will be issued in conjunction with this decision.

COMMISSIONER

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