Scott Williams v The Trustee for CFC Employment Trust t/a CFC Employment Trust T/A Centurion Transport

[2016] FWC 7700

[2016] FWC 7700

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Scott Williams
v
The Trustee for CFC Employment Trust t/a CFC Employment Trust T/A Centurion Transport
(U2016/10877)

COMMISSIONER WILLIAMS PERTH, 25 OCTOBER 2016

Termination of employment.

[1] This matter involves an application made by Mr Scott Williams (Mr Williams or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is The Trustee for CFC Employment Trust t/a CFC Employment Trust T/A Centurion Transport (the respondent).

[2] The application was listed for a conference with a Fair Work Commission (Commission) conciliator at 11.15 a.m. on Monday, 10 October 2016 however at the time of the conference Mr Williams’ representatives, the Transport Workers’ Union of Australia (TWU), advised they had been unable to obtain instructions from the applicant.

[3] On the same day the Commission sent a letter to the applicant and the TWU explaining that the applicant has 48 hours to advise if he wishes to proceed with another conciliation and provide his availability. The letter stated if the Commission did not hear from the applicant within this time the matter will be referred to a Member of the Commission for arbitration.

[4] On 12 October 2016 the TWU advised after several attempts it had been unable to contact the applicant and consequently could not advise how he wished to proceed. Accordingly the matter was referred to me for arbitration.

[5] Shortly thereafter a notice of listing was issued advising a directions conference by telephone would be held at 10.00 a.m. on Monday, 24 October 2016. The notice of listing explained that given the applicant’s previous failure to participate in the conference on 10 October 2016 if the applicant did not attend the directions conference his application will be dismissed. This was sent to the applicant by email and priority post as well as to the TWU.

[6] On 20 October 2016 the TWU advised it ceased to act for the applicant.

[7] On 24 October 2016 the applicant failed to attend this directions conference however the respondent did attend.

[8] As at the date of this decision there has been no contact from the applicant.

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 direction by failing to participate in a conference and previously failed to attend another conference.

[15] The applicant was on notice that his failure to attend the directions conference would result in his application being dismissed. The applicant is either unwilling or unable to comply with the Commission’s directions.

[16] The respondent employer is entitled to a fair go including having the claim made against them 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 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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