Sean Lucas v Tronox Management Pty Ltd

[2016] FWC 5724

[2016] FWC 5724

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sean Lucas
v
Tronox Management Pty Ltd
(U2016/2934)

COMMISSIONER WILLIAMS PERTH, 15 AUGUST 2016

Termination of employment.

[1] This matter involves an application made by Mr Sean Lucan (Mr Lucas or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Tronox Management Pty Ltd (the respondent).

[2] The application was the subject of a conference with a Fair Work Commission (Commission) conciliator however the matter was not resolved and so was referred for determination.

[3] Shortly thereafter a notice of listing was issued advising a directions conference by telephone would be held on Thursday, 21 July 2016. This was sent to Mr Lucas by email and post. The notice of listing explained that failure by the applicant to attend may lead to the application being dismissed. The applicant failed to participate in this conference however the respondent did participate.

[4] Subsequently on that same day, 21 July 2016, a notice of listing for hearing and directions were issued to the parties. The directions explained that if the applicant fails to comply with the directions the application may be dismissed. This was sent to Mr Lucas by email and post.

[5] The applicant was required to file his hearing materials by Thursday, 4 August 2016.

[6] The applicant failed to comply with the Commission’s directions. The respondent did comply with the Commission’s direction to file submissions seeking permission to be represented.

[7] On Friday, 5 August 2016 I wrote to the applicant and advised that if he does not file his materials by 10:00 a.m. Friday, 12 August 2016 his repeated non-compliance will be taken as demonstrating he does not wish to continue and his application would be dismissed. That letter was sent by email and post.

[8] As at the date of this decision there has been no response or 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 repeatedly failed to comply with the Commission’s directions by failing to participate in the directions conference and subsequently provide a statement of evidence and an outline of submissions.

[15] The respondent employer is entitled to a fair go including having the claim made against them determined within a reasonable time.

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

[17] 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.

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

COMMISSIONER

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