Benjamin Clear v The Trustee for TSWG Discretionary Trust

[2025] FWC 722

[2025] FWC 722

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Benjamin Clear
v

The Trustee For TSWG Discretionary Trust

(U2024/5803)

COMMISSIONER SIMPSON BRISBANE, 13 MARCH 2025

Application for relief from unfair dismissal – signed deeds of release – dismissal under s.587(1)(c) at the Commission’s initiative - application has no reasonable prospects of success.

1. Mr Benjamin Clear (the Applicant) was employed by The Trustee for TSWG Discretionary Trust (the Respondent) until he was dismissed on 17 May 2024. On 22 May 2024, the Applicant filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth) (the Act)

1. For the following reasons I am satisfied that the application made by the Applicant has no reasonable prospects of success and should be dismissed.

1. The matter was settled via a fully executed deed on 28 July 2024.

1. On 12 August 2024, my Chambers followed up on the discontinuance of the matter as per the deed. The Applicant’s then representative advised that the Applicant was still waiting on the Statement of Service and payment of his annual leave.

1. On 5 September 2024, my Chambers followed up on the discontinuance of the matter again.

1. On 20 September 2024, my Chambers followed up on the discontinuance of the matter again. On the same day, the Applicant’s then representative noted that the matter was not finalised as the Applicant’s annual leave entitlements were being withheld and deducted.

1. On 12 February 2025, the Applicant contacted my Chambers as he had received a Federal Circuit and Family Court order for the Respondent to pay his annual leave entitlements but was unsure how to proceed with the Commission case.

1. On 11 March 2025, I listed the matter for a short procedural hearing to discuss the parties’ positions and advise the Applicant again of the issues with failing to discontinue his application. The Applicant was advised that the Commission did not have the jurisdiction to enforce Orders or Deeds of Settlement, and parties were able to pursue their concerns in a court of competent jurisdiction should they wish.

1. On the same day, as requested, the Applicant provided my Chambers a copy of the executed terms of settlement.

1. Section 587 of the 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.

…

(3) The FWC may dismiss an application:

(a)   on its own initiative; or

(b)   on application.

1. Section 587 allows the Commission to dismiss an application on the Commission’s own initiative, subject to affording procedural fairness.

1. Applications can be dismissed under s.587 when there is no reasonable prospect of an outcome other than the dismissal of the application. The power under s.587 should be used with caution, particularly if the matter involves complex questions of fact or law and is not available if there are live facts in issue that could affect the outcome of the proceedings.[1]

1. I am satisfied that the Applicant’s claim has no reasonable prospect of success within the meaning of s.587(1)(c), and that it is appropriate in the circumstances to dismiss the application on the Commission’s own initiative using the facility available in s.587(3)(a).

1. I have decided to dismiss Mr Clear’s unfair dismissal applications and make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Benjamin Clear on 22 May 2024 is dismissed.

COMMISSIONER

[1] Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302.

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