Belinda Neville v Quest Echuca

[2017] FWC 717

[2017] FWC 717

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Belinda Neville
v
Quest Echuca
(U2016/9959)

DEPUTY PRESIDENT CLANCY MELBOURNE, 3 FEBRUARY 2017

Application for relief from unfair dismissal.

[1] On 2 August 2016, Ms Belinda Neville made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Neville said that her employment had been terminated by Quest Echuca on 18 July 2016.

[2] Having not resolved at conciliation, the matter was listed before me on 16 November 2016 at Shepparton for Jurisdiction/Arbitration hearing. At the commencement of the hearing, the parties expressed interest in attempting to resolve the matter on mutually agreeable terms. The parties engaged in discussions, which I assisted in facilitating and ultimately, terms were agreed to resolve the matter.

[3] The parties were provided with Fair Work Commission standard terms of settlement which were tailored to their agreement. Ms Neville signed the terms of settlement with her support person as witness, and Mr Loton of Quest Echuca signed the terms with a member of his staff as witness.

[4] The terms provided that within seven days of the Respondent meeting its obligations, Ms Neville would file a Notice of Discontinuance with the Commission.

[5] Correspondence was sent to Ms Neville on 13 December 2016 and 22 December 2016 regarding the status of a Notice of Discontinuance. Telephone messages were left with Ms Neville seeking a return call on 20 December 2016 and 10 January 2017. Ms Neville did not respond to any of the Commission’s attempts to contact her.

[6] On 12 January 2017, I determined to list the matter for telephone mention on 24 January 2017. The Notice of Listing was sent to Ms Neville by email and express post. The Australia Post tracking ID indicates that the Notice of Listing was delivered successfully on 13 January 2017.

[7] On 24 January 2017, my chambers attempted to contact Ms Neville three times, however, none of the calls were answered or returned. At the telephone mention, Mr Loton confirmed that Quest Echuca had met its obligations pursuant to the terms of settlement. Mr Loton made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Neville had failed to discontinue the application after a settlement agreement had been concluded. I waived compliance with the Fair Work Commission Rules 2013 and accepted Quest Echuca’s oral application.

[8] Correspondence was sent to Ms Neville, via express post and email, on 24 January 2017 informing her of Quest Echuca’s s.399A application. Ms Neville was directed to file submissions and other documentary material in respect of Quest Echuca’s application by close of business, on 31 January 2017. Ms Neville was advised that if she failed to comply with this direction, her application would be dismissed. The Australia Post tracking ID indicates that the letter was delivered successfully on 27 January 2017.

[9] Ms Neville did not file any material with the Commission.

[10] Section 399A of the 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.

....
(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.

[11] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[12] As Ms Neville did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[13] The power to dismiss an application under s.399A of the Act is discretionary. Ms Neville has failed to respond to the many attempts by the Commission to contact her. I am satisfied that Quest Echuca has performed its obligations under the terms of settlement and Ms Neville has unreasonably failed to discontinue her unfair dismissal application. In these circumstances, I will exercise my discretion under s.399A(1)(c) and dismiss Ms Neville’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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