Amanda Danas v Tandem Corp

[2019] FWC 7268

[2019] FWC 7268

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amanda Danas
v
Tandem Corp
(U2019/10154)

COMMISSIONER BISSETT MELBOURNE, 21 OCTOBER 2019

Application for an unfair dismissal remedy.

[1] On 10 September 2019, Ms Amanda Danas (Applicant) made an application to the Fair Work Commission (Commission) seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act). The Applicant was employed by Tandem Corp (Respondent). Her employment was terminated on 30 August 2019.

[2] On 30 September 2019, the Respondent filed with the Commission their Form F3 Employer Response to unfair dismissal application and attached a copy of a Deed of Separation and Release which appears to have been signed by the Applicant.

[3] The Respondent objects to the application proceeding on the grounds that it says it reached a binding settlement agreement with the Applicant that acts as a bar to her unfair dismissal application. That agreement was reached prior to the Applicant making her unfair dismissal application.

[4] On 13 September 2019, the matter was listed for conciliation on 14 October 2019 and a Notice of Listing was issued to the parties.

[5] On 25 September 2019, the Applicant emailed correspondence to the Commission advising that she wished to ‘bypass’ the conciliation and requested the matter be ‘heard in Court’. As a result, the conciliation was cancelled and a Notice of Listing was issued to the parties to advise of the cancellation.

[6] On 8 October 2019, the matter was listed for a telephone Mention on 11 October 2019 to discuss the Respondent’s objection with the parties.

[7] On 8 October 2019, the Applicant emailed correspondence to the Commission to advise she did not wish to undergo a discussion or go through conciliation. The Applicant requested that the Mention be cancelled and that the Commission list the matter for hearing. On the same date the Commission emailed correspondence to the Applicant advising the requirement to address the Respondent’s objection before the matter was listed for hearing. The Applicant was advised that the matter remained listed for a telephone Mention on 11 October 2019.

[8] On 11 October 2019, the Applicant emailed correspondence to the Commission advising she was unable to attend the telephone Mention later that day. As a result, the telephone Mention was cancelled and a Notice of Listing was issued to the parties to advise of the cancellation.

[9] On 11 October 2019, the Commission emailed correspondence to the Applicant to advise that due to her unavailability for the Mention, the matter would be determined on the papers and the parties would receive directions from the Commission. The Commission advised as follows:

In the Form F3 - Employer response to unfair dismissal application the Respondent (Tandem Corp) has stated that a Deed of Settlement has been signed by the parties (Deed). A copy of the Deed has been provided by the Respondent which appears to contain your signature.

…

If there is a binding agreement between you and Respondent to your unfair dismissal application the application for unfair dismissal can be dismissed for having no reasonable prospects of success. This was confirmed in the decision of the Federal Court in Australian Postal Corporation v Gorman [2011] FCA 975.

The Commissioner is therefore considering whether she should dismiss your unfair dismissal application under s.587 of the Fair Work Act 2009 because it has no reasonable prospects of success.

[10] Submissions were sought from the Applicant and the Respondent as to whether there was a binding agreement reached between the parties and, if so, why the application for unfair dismissal should not be dismissed on the grounds that it had no reasonable prospect of success. The parties were directed to file these submissions by 4:00pm on Thursday, 17 October 2019. The parties were advised that on receipt of the submissions it would be determined whether a hearing is required.

[11] On 18 October 2019, the Respondent filed with the Commission and served on the Applicant submissions as to why the application should be dismissed on the grounds that it had no reasonable prospect of success.

[12] On 18 October 2019, the Respondent’s representative telephoned the Commission to inquire whether the Applicant had filed any material in accordance with the directions. The Commission advised that we have not yet received any material or correspondence from the Applicant.

[13] On 21 October 2019, the Commission attempted to telephone the Applicant to discuss her overdue submissions. A voicemail message was left requesting a call back.

[14] To date, the Applicant has not taken any steps to engage with the Commission regarding her application except to request that the matter be listed for a hearing.

[15] To date, the Applicant has not complied with the directions of the Commission to file submissions on why the application should not be dismissed. Additionally, the Applicant has not contested the Respondent’s assertion that the parties have reached a binding settlement agreement prior to the Applicant making her unfair dismissal application.

[16] Section 587(1) of the FW Act provides:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

[17] In the circumstances I am satisfied that the parties reached a binding agreement regarding Ms Danas’ application for unfair dismissal prior to the Applicant making her unfair dismissal application. Accordingly, her application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

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