Anthony Daw v Belington Pty Ltd

[2020] FWC 1706

[2020] FWC 1706

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Daw
v
Belington Pty Ltd
(U2019/14692)

COMMISSIONER PLATT ADELAIDE, 31 MARCH 2020

Application for an unfair dismissal remedy – s.399A application to dismiss unfair dismissal application – application dismissed.

[1] On 24 December 2019, Mr Anthony Daw lodged an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) in relation to the termination of his employment with Belington Pty Ltd (the Respondent).

[2] On 3 January 2020 Mr Charlie Jeffries, on behalf of the Respondent, filed a document titled ‘Settlement Agreement and Deed of Release’ signed and dated 13 December 2019 (the Settlement Agreement). Mr Jeffries subsequently filed a form F3 Employer Response on 11 February 2020, together with a copy of the Settlement Agreement and a Notice of Termination letter dated 12 December 2019.

[3] The application did not resolve by Conciliation and was allocated to my Chambers on 19 March 2020.

[4] A Directions Conference by telephone was held on 25 March 2020. Mr Jeffries appeared on behalf of the Respondent, no appearance was made by Mr Daw despite attempts by my Associate to contact him. At the Directions Conference, Mr Jeffries advised that he wished to make a s.399A application to dismiss the unfair dismissal application on the basis that the Respondent had entered into a settlement agreement with the Applicant which bars the matter from proceeding.

[5] Following the Directions Conference, my Chambers emailed Mr Daw and Mr Jeffries on 25 March 2020 and advised that the Respondent had made an oral s.399A application which needed to be made formally on a form F1 application, advised Mr Daw that the matter had been adjourned until 12 noon 30 March 2020 to deal with the s.399A application, that it was imperative that he attend and failing to attend may result in the matter being heard in his absence and his unfair dismissal application being dismissed.

[6] On 26 March 2020, the Respondent filed a form F1 application seeking that the unfair dismissal application be dismissed on the basis that the previously submitted Settlement Agreement had been lawfully executed and entered into by both parties.

[7] On 30 March 2020, a telephone Hearing was conducted to deal with the s.399A application. Mr Jeffries appeared on behalf of the Respondent, no appearance was made by Mr Daw despite my Associate attempting to contact him.

[8] At the Hearing, Mr Jeffries advised that the Settlement Agreement had been freely entered into on 13 December 2019, signed by all parties and the Applicant’s signature was witnessed by a Justice of the Peace. He also advised that payment of the settlement monies was made on 13 December 2019 to Mr Daw.

Applicable Legislative Provision

[9] Section 399A of the Act is 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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.”

Findings

[10] There is evidence of a Settlement Agreement before me, which appears on the face of it to have been entered into and executed by the Applicant and the Respondent in the presence of a Justice of the Peace on 13 December 2019.

[11] Clause 3 of the Settlement Agreement releases the Respondent from all claims and liabilities, as set out below:

“3.Release

3.1 In consideration for the payment set out in clause 2, the Worker unconditionally and irrevocably releases and discharges the Employer and any Related Body Corporate, and each of its, and their directors, officers, employees or agents from all claims and liabilities of any nature (including, without limitation, any costs, whether or not the subject of a court order) which the Worker may, at any time, have, or incur against, the Employer or any of its Related Bodies Corporate, and any of its, or their, directors, officers, Workers or agents, in connection with, or arising out of the Claims, or any other matter - apart from any claim for workers compensation and/or outstanding superannuation entitlements.

3.2 The Worker acknowledges that person who are not parties to this deed, but who are being released and discharged by the Worker in accordance with clause 3.1 will be entitled to rely on this deed as being a complete bar to any claims, proceedings, actions, suits or demands made or brought by the Worker in contravention of clause 3.1

3.3 In consideration of the Worker entering into this Deed, the Employer unconditionally and irrevocably releases and discharges the Worker from all claims and liabilities in connection with, or arising out of the Employer's Claim.”

[12] I accept Mr Jeffries advice that the settlement monies was paid to Mr Daw on 13 December 2019 in accordance with the Settlement Agreement.

[13] In addition to the existence of the Settlement Agreement, Mr Daw has failed to attend a Directions Conference on 25 March 2020 and a Hearing on 30 March 2020 held by the Commission and appears to have failed to prosecute his unfair dismissal application. The communications concerning the listing of these conferences were sent via the methods advised on his form F2 unfair dismissal application.

[14] On the basis of the information before me, it is appropriate to exercise my discretion to dismiss Mr Daw’s application pursuant to s.399A(1)(c) and s.399A(1)(a) of the Act. An Order¹ to this effect will be issued.

COMMISSIONER

Appearances:

No appearance on behalf of the Applicant.

Mr C.Jeffries on behalf of the Respondent.

Hearing details (telephone):

2020.
Adelaide:
March 30.

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