Woods v Fortescue Metals Group Ltd

[2016] FWC 2942

[2016] FWC 2942

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Daniel Woods
v
Fortescue Metals Group Ltd
(U2016/4398)
COMMISSIONER WILLIAMS	PERTH, 11 MAY 2016
Termination of employment.

[1]        This matter involves an application made by Mr Daniel Woods (Mr Woods or the

applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal

remedy. The respondent is Fortescue Metals Group Ltd (the respondent).

[2]        The application was the subject of a conference with a Fair Work Commission

(Commission) conciliator however the matter was not resolved and so was referred for

determination.

[3]        Shortly thereafter a notice of listing was issued advising a directions conference by

telephone would be held on Thursday, 7 April 2016. The notice of listing explained that

failure by the applicant to attend may lead to the application being dismissed. The applicant

failed to participate in this conference however the respondent did participate.

[4]        Subsequently on that same day, 7 April 2016, I wrote to Mr Woods requesting he

advise by Thursday, 14 April 2016 whether he wished to proceed with or discontinue his

application. The letter advised that, if he wished to proceed, he must comply with the

directions that were attached to the notice of listing of the hearing issued concurrently with

the letter. Both the letter and notice of listing was sent by email and express post.

[5]        That correspondence explained that a lack of a response would be taken as an

indication that he did not want to continue with the application and the matter would be

dismissed.

[6]        On Tuesday, 12 April 2016 the applicant advised, by email, that he wished to proceed

with his application. My associate, on that same day, in reply reiterated that the Commission’s

directions must be complied with. Those directions attached to the hearing notice of listing

also said that if the applicant did not comply with the directions the application may be

dismissed.

[7]        The parties were required to file their hearing materials by Thursday, 5 May 2016.

[2016] FWC 2942

[8]        The applicant failed to comply with the Commission’s directions. The respondent has

complied with the Commission’s directions.

[9]        On Friday, 6 May 2016 I again wrote to the applicant and advised that if he does not

file his materials by 10:00am Tuesday, 10 May 2016 his repeated non-compliance will be

taken as demonstrating he does not wish to continue and his application would be dismissed.

That letter was sent by email and express post.

[10]      As at the date of this decision there has been no response or contact from the

applicant.

The legislation

[11]      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.

[12]      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.

[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 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.

[15]      Section 587 (3) of the Act empowers the Commission to dismiss an application on its

own initiative.

Decision

[16]      In this case the applicant has repeatedly failed to comply with the Commission’s

directions to provide a statement of evidence and an outline of submissions. The applicant is

either unable or unwilling to provide the materials required of him.

[17]      The respondent employer is entitled to a fair go including having the claim made

against them determined within a reasonable time.

[18]      The applicant in the circumstances here has been given a fair go.

[19] 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.
[2016] FWC 2942

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR580214>