Aaron Pedersen v Southern Cross Engineering (Aust) Pty Ltd

[2020] FWC 626

[2020] FWC 626

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Aaron Pedersen
v
Southern Cross Engineering (Aust) Pty Ltd
(U2019/10281)

COMMISSIONER BISSETT MELBOURNE, 10 FEBRUARY 2020

Application for an unfair dismissal remedy – failure to discontinue the application after a settlement agreement has been concluded– s.399A application to dismiss – application granted.

[1] On 13 September 2019 Mr Aaron Pedersen (Applicant) made an application to the Fair Work Commission (Commission) for a remedy for unfair dismissal pursuant s.394 of the Fair Work Act 2009 (FW Act). The Applicant said that his employment had been terminated by Southern Cross Engineering (Aust) Pty Ltd (Respondent) on 23 August 2019.

[2] A Notice of Listing was issued to the parties on 19 September 2019 scheduling a telephone conciliation on 18 October 2019.

[3] The matter did not settle at the conciliation and was referred to be listed for Arbitration Conference/Hearing.

[4] On 21 October 2019 the Commission issued a Notice of Listing to the parties containing Directions to file material and noting the matter was listed for Arbitration Conference/Hearing on 16 – 17 December 2019.

[5] On 11 November 2019 the Applicant’s representative emailed correspondence to the Commission advising that the parties had reached an in-principle agreement to settle the matter and anticipated a Deed of Settlement would be finalised in the coming days. That correspondence requested that the Directions issued on 21 October 2019 be vacated.

[6] Later that day the Commission issued an amended Notice of Listing advising the parties that the Directions issued on 21 October 2019 were vacated and that the Conference/Hearing listing had been cancelled. The amended Notice of Listing advised that the matter would remain open until a Notice of Discontinuance was filed, however, if a Notice of Discontinuance was not filed after such time the Commission deems reasonable the Commission may close the matter by its own initiative.

[7] On 3 January 2020 the Commission emailed correspondence to the Applicant’s representative advising that the Commission was awaiting a Notice of Discontinuance to be filed to close the matter. That correspondence advised that if a Notice of Discontinuance was not filed within two weeks, the matter may be listed for a Mention before a Member of the Commission. A Form F50 - Notice of Discontinuance was provided with this correspondence.

[8] On 16 January 2020 the Applicant’s representative emailed correspondence to the Commission providing a Form F54 – Notice that a lawyer or paid agent has ceased to act. This email correspondence was also sent to the Respondent’s representative.

[9] On 17 January 2020 the Respondent’s representative emailed correspondence to the Commission and to the Applicant. That correspondence advised that:

•  The parties executed a Deed of Settlement on 25 November 2019 which required the Respondent to provide the Applicant with a neutral statement of service and pay an agreed settlement amount;

•  In accordance with the Deed of Settlement, the Respondent provided the Applicant with a neutral statement of service and paid the settlement funds;

•  The Respondent erroneously paid the settlement funds directly to the Applicant’s bank account rather than to the Applicant’s representative’s account;

•  The Respondent’s representative understood that the Applicant has failed to respond to all communications with his representative since the settlement funds were paid; and

•  The Respondent’s position was that they have discharged their obligations under the Deed of Settlement and the matter ought to be dismissed under s399A of the FW Act.

[10] On 28 January 2020 the Commission issued a Notice of Listing to the parties advising the matter was listed for mention by telephone on 30 January 2020. The Notice of Listing requested the parties provide their contact details for the telephone mention.

[11] Later that day the Respondent’s representative emailed correspondence to the Commission providing their contact details for the telephone mention. The Applicant did not respond to the Commission’s correspondence and did not provide contact details for the telephone mention.

[12] At 10:18am on 30 January 2020 the Commission telephoned the Applicant on his nominated mobile telephone number. A voicemail message was left advising that the Commission was attempting to confirm the Applicant’s contact number for the telephone mention to be held later that day. The voicemail message provided the Commission’s contact number to return the call and advised that if the Commission did not receive a response they would contact the Applicant on his nominated telephone number for the mention and requested he be available to answer his telephone at the time of the mention.

[13] At 2:00pm on 30 January 2020 the mention proceeded before Commissioner Bissett. The Respondent’s representative attended. The Applicant did not attend. The Commission made two attempts to contact the Applicant on his mobile phone number. Two voicemail messages were left advising the Applicant that the Commission was calling in relation to the mention for his unfair dismissal matter and provided the Commission’s phone number for a return call.

[14] At the mention, the Respondent’s representative made an oral application pursuant to s.399A of the FW Act that the matter be dismissed due to the Applicant’s failure to discontinue his application after the settlement agreement had been reached and the settlement sum had been paid. Commissioner Bissett waived compliance with the Fair Work Commission Rules 2013 and accepted the Respondent’s oral application.

[15] On 30 January 2020, following the mention, correspondence was sent to the Applicant’s nominated email address and postal address advising him of the Respondent’s s.399A application. The Applicant was directed to file submissions and other documentary material as to why the Commission should not dismiss his application by no later than 4.00 pm on 6 February 2020. This correspondence stated that if the Commission did not receive a response, the Applicant’s application for relief from unfair dismissal would very likely be dismissed without further notice.

[16] To date, the Applicant has not filed any material with the Commission.

[17] Section 399A of the FW Act provides as follows:

399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

…

[18] Section 593 of the FW Act provides that the Commission is not required to hold a hearing except as provided by the FW Act. As the Applicant did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[19] The power to dismiss an application if the non-compliance was unreasonable is discretionary. The Applicant has failed to respond to numerous attempts made by the Commission to contact him. The Applicant and has not provided an explanation to the Commission for his failure to discontinue his application following the payment of the settlement sum.

[20] In these circumstances, I am persuaded that I should exercise my discretion under s.399A(1)(c) and dismiss the Applicant’s application. An order 1 giving effect to this decision will be issued separately.

COMMISSIONER

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