de Jonge v Shire of Roebourne [2013] FWC 5799 (15 August 2013)

[2013] FWC 5799

Fair Work Act 2009_

s.394 - Unfair dismissal

[1] This matter involves an application made by Mr Benjamin de Jonge (the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Shire of Roebourne (the respondent).

[2] On 18 July 2013 I wrote to the applicant advising that the matter would be listed for a formal determinative proceeding and explaining the procedure involved. The letter directed the applicant to advise by 26 July 2013 whether he wished to proceed with that hearing or to discontinue the application. The letter was sent by email and post.

[3] No response was received from the applicant.

[4] Consequently a follow up letter was emailed and posted to the applicant on 31 July 2013. The applicant was directed to respond by 12 August 2013. That correspondence also explained that 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.

[5] As at the date of this decision the applicant has not responded to the Commission's direction nor has there been any contact from him.

[6] 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.

[7] 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.

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

[9] 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.

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

[11] In this instance the applicant has twice failed to comply with the directions to explain his intentions.

[12] The applicant has been put on notice as to the consequence of not responding and further non compliance. The applicant in the circumstances here has been given a fair go.

[13] The respondent employer is also entitled to a fair go including having the claim made by the applicant determined within a reasonable time.

[14] 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.

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

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