Sarah Burbidge v Nyoman and Nyoman Pty Ltd T/A Currambine Kids Care

[2020] FWC 3556

[2020] FWC 3556

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sarah Burbidge
v
Nyoman and Nyoman Pty Ltd T/A Currambine Kids Care
(U2020/6092)

COMMISSIONER WILLIAMS PERTH, 7 JULY 2020

Termination of employment.

[1] This matter involves an application made by Ms Sarah Burbidge (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Nyoman and Nyoman Pty Ltd T/A Currambine Kids Care (the Respondent).

[2] The Respondent objects to the application on the ground that the dismissal was a case of genuine redundancy.

[3] On 9 June 2020 a notice of listing was sent to the parties with specific directions to each party. This was sent to the Applicant by email. The Applicant was directed to provide a written statement of evidence for each witness to be called, an outline of submissions and copies of any documents that will be relied on in support of the application by 23 June 2020. Nothing was received from the Applicant by this date.

[4] A follow up letter was emailed to the Applicant on 24 June 2020 regarding the failure to comply with the Commission’s direction and directing that the materials be filed and served by 25 June 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.

[5] On 25 June 2020 the Applicant filed documents she wished to rely on but failed to file an outline of submissions and any statements of evidence. That same day my associate emailed the Applicant explaining she has failed to comply with the Commission’s directions and requested she do so urgently.

[6] On 26 June 2020, by reply email, the Applicant advised she did not intend to prepare any statement(s) of evidence or provide any written submissions until she receives a response to her settlement proposal she put to the Respondent privately.

[7] On 29 June 2020 my associate again emailed the Applicant and advised the Commission’s directions must be complied with and that compliance does not prevent the parties negotiating a settlement. This email also explained further non-compliance would result in the application being dismissed.

[8] As at the date of this decision the Applicant has not filed any statements of evidence nor written submissions as directed by the Commission.

The legislation

[9] 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.

[10] 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.

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

[12] 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.

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

Decision

[14] 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.

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

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

[17] 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.

[18] An order [PR720799] to this effect will be issued in conjunction with this decision.

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