Stevan Coso v Professional Gyprock Solution Pty Ltd

[2012] FWA 3066

[2012] FWA 3066

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stevan Coso
v
Professional Gyprock Solution Pty Ltd
(U2011/11477)

COMMISSIONER WILLIAMS PERTH, 11 APRIL 2012

s.394 - Application for unfair dismissal remedy.

[1] This matter involves an application made by Mr Stevan Coso (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The Respondent is Professional Gyprock Solution Pty Ltd.

[2] The application was the subject of a conference with a Fair Work Australia Conciliator however it was not resolved and so it has been referred to myself for determination.

[3] I wrote to the Applicant advising that the matter would be listed for a formal determinative proceeding and explaining the procedure involved. The letter requested that the Applicant advise whether he wished to proceed with that hearing or to discontinue the application. After some delay in January 2012 the Applicant confirmed that he did wish to proceed to a determinative hearing.

[4] On 25 January 2012 I sent to the parties a Notice of Listing advising that the matter was listed for hearing in May 2012 and attached directions that required the Applicant to file his witness statements and an outline of his submissions with any supporting documentation by 13 March 2012 and serve these upon the Respondent.

[5] The Applicant did not comply with these directions.

[6] Subsequently there were a number of email exchanges and a phone discussion between the Applicant and my associate as to what was required of him. He was advised that a further seven days would be allowed for him to file and serve his materials.

[7] Again there was no compliance by the Applicant with these requirements.

[8] Consequently on 26 March 2012 having received no materials from the Applicant I cancelled the listed hearing and issued revised directions to the Applicant. Those directions explained that the hearing had been cancelled because of his non-compliance with previous directions. The directions required him to provide his materials by Friday, 6 April 2012.

[9] The new directions advised that if the Applicant complied the matter would be relisted for hearing with directions regarding the Respondent's filing of materials but if the Applicant did not comply with the directions his application may be discontinued.

[10] As at the date of this decision no such materials have been filed by the Applicant and there has been no further contact from him.

The legislation

[11] Section 577 obliges Fair Work Australia 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.

[12] Further section 578 relevantly requires that in performing functions or exercising powers in relation to a matter Fair Work Australia must take into account the Objects of the relevant Part of the Act.

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

[14] The Objects of Part 3-2 Unfair Dismissal are prescribed in section 381. 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.

[15] Section 587 (3) empowers Fair Work Australia to dismiss an application on its own initiative.

Decision

[16] In this case the Applicant has repeatedly failed to comply with the directions to provide materials in support of his application.

[17] The Applicant has been on notice as to the consequence of further non compliance.

[18] The Applicant has been given a fair go in the circumstances. The Applicant has had a fair opportunity to prosecute his application but has been unable or unwilling to do so.

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

[20] In the circumstances then this application for an unfair dismissal remedy is dismissed on the initiative of Fair Work Australia under section 587 (3) of the Act.

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

COMMISSIONER

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