Rebecca Johnson v Pure Profit Pty Ltd T/A the Voodoo Lounge

[2020] FWC 729

[2020] FWC 729

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rebecca Johnson
v
Pure Profit Pty Ltd T/A The Voodoo Lounge
(U2019/12968)

COMMISSIONER WILLIAMS PERTH, 11 FEBRUARY 2020

Application for an unfair dismissal remedy.

[1] This matter involves an application made by Ms Rebecca Johnson (the Applicant) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The respondent is Pure Profit Pty Ltd T/A The Voodoo Lounge.

[2] The application was the subject of a conference with a Fair Work Commission (Commission) Conciliator on 16 December 2019, however the matter was not resolved and so has been referred for determination.

[3] On 18 December 2019, the parties were advised in writing by the Commission there would be future requirements to provide witness statements and submissions for the arbitration of the matter.

[4] A Notice of Listing containing the date of the arbitration and the requirement for filing materials was sent to the parties on 19 December 2019, with specific directions to each party including dates for filing. The Applicant was directed to provide written materials in support of their application by 12.00pm Monday, 3 February 2020. Nothing was received from the Applicant by this date.

[5] At 1.43pm Monday, 3 February 2020, the Applicant was called on her mobile by a Commission Case Manager, the number was disconnected.

[6] At 1.50pm Monday, 3 February 2020, the Applicant was called on her mother’s mobile number previously provided, there was no answer and a voice message was left requesting the Applicant return the Commissions call.

[7] The Commission Case Manager then sent the Applicant an email the same day noting nothing had been received by the Applicant and to contact the Commission by 12.00pm Tuesday, 4 February 2020, to advise whether she intended to file submissions.

[8] On Tuesday, 4 February 2020, the Applicant was contacted again and a voice message left.

[9] The Commission Case Manager then sent the Applicant an email that same day noting nothing had been received and to contact the Commission by 10.00am Monday, 5 February 2020, to advise whether she intended on filing her submissions.

[10] On 7 February 2020, further correspondence was sent to the Applicant, a non-compliance letter from Chambers via email and post, regarding the failure to comply with the Commissions directions requesting the Applicant’s materials be filed and served by 4.00pm Monday, 10 February 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.

[11] As at the date of this decision there has been no response or contact from the Applicant.

The legislation

[12] 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.

[13] 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.

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

[15] 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.

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

Decision

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

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

[19] The Respondent employer is also entitled to a fair go including having the jurisdictional objection determined within a reasonable time.

[20] 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.

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

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