Tania Arthur Te Kahu v MSS Security Pty Ltd

[2022] FWC 1962

[2022] FWC 1962

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Tania Arthur Te Kahu
v

MSS Security Pty Ltd

(U2022/2256)

COMMISSIONER WILLIAMS PERTH, 25 JULY 2022

Application for an unfair dismissal remedy

1. This matter involves an application made by Ms Tania Arthur Te Kahu (the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is MSS Security Pty Ltd (the respondent).

1. Correspondence was sent to the parties on 16 June 2022 with specific directions to each party. This was sent to the applicant by email. The applicant was directed to provide written materials in support of the application by 14 July 2022. Nothing was received from the applicant by this date.

1. A follow up letter was emailed to the applicant on 15 July 2022 regarding the failure to comply with the Commission’s direction and directing that the materials be filed and served by on 19 July 2022. The letter advised a further failure to comply with the Commission’s direction would be grounds for the application to be dismissed without further notice.

1. On 18 July 2022, the applicant requested a further extension of time, in order to allow their witness time to write a statement. This request was granted, and further communication was sent to the applicant on 18 July with an amended direction to file materials by 22 July. In this communication, the applicant was informed that if this further direction was not complied with the application would be dismissed.

1. As at the date of this decision the applicant has not filed any materials as directed nor otherwise contacted the Commission.

The legislation

1. 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.

1. 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.

1. A section 394 application falls under Part 3-2 Unfair Dismissal of the Ac

1. 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.

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

Decision

1. 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.

1. The applicant in the circumstances here has been given a fair go.

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

1. 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.

1. An Order [PR744165] to this effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

<PR744166>