Steven Hewitt v Country Carriers Consortium Pty Ltd T/A Country Carriers

[2017] FWC 2197

[2017] FWC 2197

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Hewitt
v
Country Carriers Consortium Pty Ltd T/A Country Carriers
(U2016/12035)

COMMISSIONER WILLIAMS PERTH, 20 APRIL 2017

Termination of employment.

[1] This matter involves an application made by Mr Steven Hewitt (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Country Carriers Consortium Pty Ltd T/A Country Carriers (the Respondent).

[2] The application was listed for a conference with a Fair Work Commission (Commission) conciliator however the conference did not take place due to the Applicant being held in remand on an unrelated matter. On the Applicant’s instruction the Transport Workers’ Union of Australia (TWU) requested the matter be referred for determination.

[3] On 10 January 2017 the TWU and the Respondent participated in a Directions Conference by telephone. Subsequently on 18 January 2017 the TWU filed a form F54-Notice of Representative Ceasing to Act and advised the Applicant’s bail application and trial was set down for on or around 27 February 2017.

[4] On 7 March 2017 the Commission wrote to the Applicant explaining the Commission’s obligations under section 577 of the Act and requested he advise by 31 March 2017 whether or not he wished to proceed with his application. The letter also requested he advise when he would be available for a conference or hearing should he wish to proceed. This letter was sent by email and post.

[5] Nothing was received from the Applicant in response to the Commission’s direction.

[6] A further letter was emailed and express posted to the Applicant on 4 April 2017 regarding the failure to comply with the Commission’s direction and directing him to respond regarding his intentions by 18 April 2017. The letter advised a further failure to comply would be grounds for the application to be dismissed.

[7] As at the date of this decision the Applicant has not responded as directed nor contacted the Commission.

The legislation

[8] 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.

[9] 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.

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

[11] 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.

[12] Section 587 (3) of the Act empowers the Commission to dismiss an application on its own initiative.

Decision

[13] In this case the Applicant has failed to comply with the Commission’s directions and was on notice that non-compliance would be grounds for the application to be dismissed.

[14] The Applicant in the circumstances here has been given a fair go.

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

[16] Consequently my decision is that this application for an unfair dismissal remedy should now dismissed on the initiative of the Commission under section 587 (3) of the Act.

[17] An order [PR591971] to this effect will be issued in conjunction with this decision.

COMMISSIONER

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<Price code A, PR591970>