Tobias Bell v Toscana (WA) Pty Ltd

[2021] FWC 6254

[2021] FWC 6254

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tobias Bell
v
Toscana (WA) Pty Ltd
(U2021/7524)

COMMISSIONER WILLIAMS PERTH, 2 NOVEMBER 2021

Application for an unfair dismissal remedy.

[1] This matter involves an application made by Mr Tobias Bell (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Toscana (WA) Pty Ltd (the Respondent).

[2] The application was listed for a conference with a Fair Work Commission conciliator however the conference did not proceed as the Respondent declined to participate.

[3] On 8 October 2021 the parties were advised in writing as to the future requirements to provide witness statements and submissions for arbitration.

[4] Correspondence was sent to the parties on 12 October 2021 with specific directions to each party. This was sent to the Applicant and his representative by email. The Applicant was directed to provide written materials in support of the application by 28 October 2021. Nothing was received from the applicant by this date.

[5] A follow up letter was emailed to the Applicant and his representative on 29 October 2021 regarding the failure to comply with the Fair Work Commission’s direction and directing that the materials be filed and served by 10:00am 2 November 2021. The letter advised a further failure to comply with the Fair Work Commission’s direction would be grounds for the application to be dismissed without further notice.

[6] On 1 November 2021 the Applicant sent a brief email to my chambers which was copied to his representative but not the Respondent. This email did not contain any submissions, witness statements or supporting documents as required by the directions.

[7] That same day, my associate replied to the Applicant again explaining the requirements of the Fair Work Commission’s directions and repeated that a further failure to comply with the direction would be grounds for the application to be dismissed without further notice.

[8] As at the date of this decision the Applicant has not filed any materials as directed nor otherwise further contacted the Fair Work Commission.

The legislation

[9] 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.

[10] 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.

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

[12] 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.

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

Decision

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

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

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

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

[18] An order [PR735422] to this effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

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