Stephen Matsios v Agar Cleaning Systems Pty Ltd

[2011] FWA 2178

[2011] FWA 2178

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Matsios
v
Agar Cleaning Systems Pty Ltd
(U2010/14962)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 14 APRIL 2011

Dismissal of matter - Failure to appear

[1] The applicant, Mr.Stephen Matsios, lodged an application for an Unfair Dismissal Remedy on 10th December 2010.

[2] On the 20th December 2010, a notice of listing was posted to the applicant and the respondent, listing the matter for conciliation by telephone on 7th January 2011 at 9.15am. That notice stated that the parties did not need to attend Fair Work Australia, that both parties would be contacted via the telephone numbers they had provided for the telephone conciliation. The applicant did not attend or participate in the conciliation conference.

[3] As conciliation was unsuccessful, the matter was referred to arbitration.

[4] On 12th January 2011 Fair Work Australia issued directions requiring the production of written submissions and witnesses statements. The applicant did not comply with the directions.

[5] The applicant failed to appear in a hearing before Senior Deputy President Acton on 10th February 2011.

[6] The matter was listed before me at 10.00 am on Friday 8th April 2011.

[7] The applicant failed to attend and did not, before the hearing or subsequently to it, provide any explanation for his failure to attend.

[8] Fair Work Australia has been unable to make any contact with Mr Matsios.

[9] 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.

[10] 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; ...”

[11] 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.”

[12] Mr Matsios 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.

[13] 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 it appropriately balances the needs of the respondent with those of the applicant.

[14] I order that the application be dismissed, Order PR508286.

DEPUTY PRESIDENT

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