Andrew Strachan v Oncall Group Australia Pty Ltd

[2022] FWC 279

[2022] FWC 279

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Andrew Strachan

v

Oncall Group Australia Pty Ltd

(U2021/9780)

DEPUTY PRESIDENT COLMAN MELBOURNE, 11 FEBRUARY 2022

Application for an unfair dismissal remedy – application dismissed under s 587

1. Yesterday, for reasons briefly explained on transcript, I dismissed under s 587(1)(c) of the Fair Work Act 2009 (Act) an unfair dismissal application made by Mr Andrew Strachan. The background is as follows.

1. On 9 December 2021, the respondent’s solicitor advised my chambers that the matter had been resolved. On several occasions in the course of January 2022, my associate sent correspondence to the parties seeking an update on the status of the resolution and confirmation of when a notice of discontinuance would be filed. On 28 January 2022, Mr Strachan’s representative advised my chambers that he was reviewing the settlement agreement and would provide an update on 31 January 2022. None was received. On 1 February 2022, the respondent’s solicitor advised that he had received from the applicant a signed deed, and that he would have his client sign it.

1. On 8 February 2022, my associate advised the parties on my behalf that, because the application had still not been discontinued, the hearing would proceed as listed on 10 February 2022. The parties were directed to attend the proceeding and were reminded that s 600 of the Act allows the Commission to determine a matter in the absence of a party that has been required to attend before it. Shortly afterwards, Mr Strachan’s representative sent to my chambers a message confirming that the parties had reached a settlement but that his client did not wish to file a notice of discontinuance until all four instalments of the settlement sum had been paid, and on this basis, he requested that the hearing date be adjourned.

1. It is not appropriate for the Commission to hold open matters that have settled. It is not the task of the Commission to supervise the parties’ performance of their contractual commitments. The Commission expects the parties to comply with their settlement obligations. But if they do not, the remedy is in contract and is a matter for the courts.

1. In correspondence to the parties on 8 February 2022, I refused the adjournment request and noted that if the matter had indeed settled, there would likely be an accord and satisfaction such that Mr Strachan’s application would no longer have any reasonable prospects of success, and in which case the application may simply be dismissed under s 587 of the Act.

1. No notice of discontinuance was received. Neither Mr Strachan nor his representative attended the hearing on 10 February 2022. The respondent complied with my direction to attend the hearing and produced a settlement agreement, signed by the parties, in which Mr Strachan stated that he released the company from any claims relating to his employment. The respondent’s solicitor confirmed that the company received the signed release from Mr Strachan’s representative on 1 February 2022.

1. Section 587(1)(c) provides that the Commission may dismiss an application that has ‘no reasonable prospects of success’. The Commission may do so on its own initiative (s 587(3)). At the hearing on 10 February 2022, I was satisfied that the settlement between the parties in this matter was an accord and satisfaction. Mr Strachan had agreed to accept a payment to settle his claim. He had released the respondent from any liability connected to his employment. He had also promised to discontinue his application within seven days of signing the release. The fact that Mr Strachan appears not to have complied with this obligation does not affect his release of the company from liability. The settlement agreement is a complete answer to Mr Strachan’s unfair dismissal claim. The Commission may have regard to such a settlement in considering whether to dismiss an application under s 587 of the Act (see Australian Postal Corporation v Gorman [2011] FCA 975 at [31]-[33]). At the hearing on 10 February 2022, I concluded that in light of the settlement agreement, Mr Strachan’s application had no reasonable prospects of success, and that it was appropriate to dismiss the application under s 587(1)(c) of the Act, and I did so.

DEPUTY PRESIDENT

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