Renee Cullen v D a Burke & Sons Builders Pty Ltd

[2013] FWC 2189

[2013] FWC 2189

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Renee Cullen
v
D A Burke & Sons Builders Pty Ltd
(U2013/6018)

COMMISSIONER WILLIAMS PERTH, 11 APRIL 2013

Termination of employment.

[1] This matter involves an application made by Ms Renee Cullen (the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is D A Burke & Sons Builders Pty Ltd (the respondent).

[2] The application was the subject of a conference with a Fair Work Commission Conciliator however it was not resolved and so it has been referred to me for determination.

[3] I wrote to the applicant advising that the respondent objected to the application on the grounds that she had not completed the minimum employment period and that if she disputed the respondent’s assertions the matter would be listed for a formal determinative proceeding and explaining the procedure involved. The letter requested that the applicant advise whether she wished to proceed with that hearing or to discontinue the application by 20 March 2013. That correspondence was posted and emailed to the applicant.

[4] No response was received from the applicant.

[5] A follow up letter was emailed and posted to the applicant on 22 March 2013 requesting a response by 3 April 2013.

[6] That correspondence explained that lack of a response would be taken as an indication that she did not want to continue with the application and the matter may be dismissed.

[7] No response has been received from the applicant as at the date of this decision.

The legislation

[8] 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.

[9] 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.

[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 Fair Work Commission to dismiss an application on its own initiative.

Decision

[13] In this case the applicant has twice failed to comply with the directions to advise of her intentions.

[14] The respondent has raised a jurisdictional objection to the application which has been explained to the applicant.

[15] The applicant has been put on notice as to the consequence of further non compliance.

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

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

[18] 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.

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

COMMISSIONER

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