Scott Winter v Adecco Industrial Pty Ltd
[2011] FWA 1974
•4 APRIL 2011
[2011] FWA 1974 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Scott Winter
v
Adecco Industrial Pty Ltd
(U2010/13564)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 4 APRIL 2011 |
Dismissal of Matter - Failure to Appear - No Jurisdiction
[1] The applicant, Mr.Scott Winter, lodged an application for an Unfair Dismissal Remedy on 25 October 2010.
[2] On the 3rd of November 2010, a notice of listing was posted to the applicant and the respondent, listing the matter for a conciliation by telephone on 16th November 2010 at 9.15am. That notice stated that the parties do not need to attend Fair Work Australia but both parties were required to forward contact telephone numbers for the telephone conciliation. The applicant did not attend or participate in a conciliation conference.
[3] Directions requiring the production of written submissions and witnesses statements were issued on 10 December 2010 which the applicant did not comply with.
[4] The applicant failed to appear in a hearing before Senior Deputy President Acton on 3 February 2010.
[5] The matter was listed before me at 10.00 am on Wednesday 23 March at the Latrobe Valley Magistrates Court in Morwell, the closest facility to the address given by the applicant in his application.
[6] The applicant failed to attend and did not, before the hearing or subsequently to it, provide any explanation for his failure to attend.
[7] Fair Work Australia has been unable to make any contact with Mr Winter.
[8] Section 577 (Performance of functions etc by FWA) of the Act requires Fair Work Australia to perform its functions and exercise its powers in a manner that, amongst other things, is fair, just and quick.
[9] Section 578 (Matters FWA must take into account in performing functions etc.) of the Act relevantly provides:
“In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), FWA must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; ...”
[10] Section 381 (Object of this Part) within Part 3-2 (Unfair Dismissal) of the Act prescribes:
“(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a ‘fair go all round’ is accorded to both the employer and employee concerned.
Note: The expression ‘fair go all round’ was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”
[11] Mr Winter has had ample opportunity to put his case. He has been given a fair go but has not availed himself of the opportunity to put a case. He has been provided with natural justice. The employer claim that there was no dismissal has not been contradicted by the application.
[12] Section 587 (Dismissing Applications) of the Act empowers Fair Work Australia to dismiss an application on its own initiative. In my view that action is warranted because such action gives balance to the needs of the respondent (which opposes the application) and provides it with a fair go, and in any event the tribunal has no jurisdiction to hear the matter.
[13] I also note that Mr.Winter has not suffered financially as a result of this application. He was granted a waiver of the lodgement fee on 26 October 2010.
[14] I order that the application be dismissed, Order PR507867.
DEPUTY PRESIDENT
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