Samantha McMorland v Utex Pty Ltd T/A the Honda Shop

[2012] FWA 3361

[2012] FWA 3361

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Samantha McMorland
v
Utex Pty Ltd T/A The Honda Shop
(U2012/4483)

COMMISSIONER WILLIAMS PERTH, 20 APRIL 2012

s.394 - Application for unfair dismissal remedy.

[1] This matter involves an application made by Samantha McMorland (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Utex Pty Ltd T/A The Honda Shop (the Respondent).

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

[3] I wrote to the Applicant on 20 March 2012 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 28 March 2012 whether she wished to proceed with that hearing or to discontinue the application.

[4] Not having received any reply from the Applicant I sent a follow up letter on 30 March 2012 requesting a reply by 11 April 2012 and advising that if no response is received this would be taken as indicating the Applicant did not wish to continue and so the application may be dismissed.

[5] Both of these letters were sent by post and email. No response has been received from the Applicant. In fact there has been no contact at all from the Applicant.

The legislation

[6] Section 577 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, transparent and promotes harmonious and cooperative workplace relations.

[7] Further section 578 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. 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) empowers Fair Work Australia to dismiss an application on its own initiative.

Decision

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

[12] The Applicant is unable or unwilling to provide a response. The Applicant has been put on notice as to the consequence if no response is received.

[13] The Respondent employer is entitled to a fair go. They are entitled to have the application made against them determined within a reasonable time.

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

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

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR522605>