Teresa Starcevich v Direct Brand Distributors Pty Ltd T/A World Brand Importer Gastevski Group

[2018] FWC 7842

[2018] FWC 7842

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Teresa Starcevich

v

Direct Brand Distributors Pty Ltd T/A World Brand Importer Gastevski Group

(U2018/10912)

Commissioner Williams PERTH, 21 DECEMBER 2018

Termination of employment.

1. This matter involves an application made by Ms Teresa Starcevich (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Direct Brand Distributors Pty Ltd T/A World Brand Importer Gastevski Group (the Respondent).

1. The Respondent in its form F3-Employer Response identified three separate jurisdictional objections to the unfair dismissal remedy application; that the application was lodged out of time, the Applicant was not an employee and the Applicant was not dismissed.

1. Consequently on 5 December 2018 correspondence was sent to the Applicant by email and post explaining that if she wished to proceed with her application the Fair Work Commission will firstly deal with the jurisdictional objection that the application was made more than 21 days after the dismissal took effect.  The letter directed the Applicant to advise the Fair Work Commission by Friday, 14 December 2018 whether she wished to proceed with her application or not.

1. That same day the Applicant called my associate seeking clarification about what the letter required of her and my associate advised she was required to advise the Fair Work Commission by Friday, 14 December 2018 whether or not she wanted to proceed with her application. It was explained to the Applicant if she wished to proceed further directions would be issued to the parties to deal with the out of time jurisdictional objection.

1. Nothing was received from the Applicant or on her behalf by Friday, 14 December 2018.

1. On 17 December 2018 the Applicant contacted a Fair Work Commission conciliator.

1. Further correspondence was emailed and express posted to the Applicant on 18 December 2018 regarding the failure to comply with the Fair Work Commission’s direction and directing her to advise whether she wished to proceed with her application or not by 20 December 2018 and advising a further failure to comply would be grounds for the application to be dismissed.

1. As at the date of this decision the Applicant has not responded to the Fair Work Commission’s correspondence as directed.

The legislation

1. Section 577 of the Act obliges the Fair Work 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 Fair Work 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 Act.

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 Fair Work 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 employer 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 Fair Work Commission under section 587(3) of the Act.

1. An order [PR703491] to this effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

<PR703490>