Brian Lovett v Mary Valley Milk Pty Ltd

[2016] FWC 6330

[2016] FWC 6330

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brian Lovett
v
Mary Valley Milk Pty Ltd
(U2016/5079)

COMMISSIONER WILSON MELBOURNE, 7 SEPTEMBER 2016

Application for relief from unfair dismissal.

[1] On 3 March 2016, Mr Brian Lovett made an application for unfair dismissal remedy in relation to his dismissal under s.394 of the Fair Work Act 2009.

[2] On 31 March 2016, Mary Valley Milk Pty Ltd filed their response to the application for unfair dismissal remedy.

[3] The matter was the subject of conciliation on 6 April 2016 however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing on 23 and 24 June 2016.

[4] Mr Lovett was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 26 April 2016.

[5] On 5 May 2016, Mary Valley’s representative advised the Commission:

“Dear Sir/Madam

I write in relation to the abovementioned matter.

I wish to advise the Commission that this matter has reached an agreement in principle. The Applicant has advised me that he will file a Notice of Discontinuance in due course.”

[6] On 16 June 2016, the Commission forwarded email correspondence to the Mr Lovett and his representative advising that the application remained open and that a Form F50 Notice of Discontinuance was required.

[7] On 23 August 2016, the Commission forwarded the following correspondence to Mr Lovett:

“On 21 June 2016, you advised the Fair Work Commission that the above matter had reached an ‘in-principle’ settlement agreement.

Some time has passed and several requests for you to file a Notice of Discontinuance have been made. However, our records still indicate that a Notice of Discontinuance has not been filed with the Commission.

Please file a Notice of Discontinuance before close of business Tuesday, 30 August 2016 so that we may formally close the file. You can file the Notice of Discontinuance by email at [email protected] or by post to:
Fair Work Commission
GPO Box 1994
MELBOURNE VIC 3001

To notify the Commission that you wish to discontinue your application, you can also do one of the following:

● call the Unfair Dismissal Case Management Team on 1800 269 491 to discontinue your application by telephone; or
● send a letter, email or fax to the Commission confirming your wish to discontinue.

If the Commission does not hear from you by close of business on Tuesday, 30 August 2016, a decision will be issued by Deputy President Gooley, Termination of Employment Panel Head, to dismiss your matter without further notice to you.”

[8] To date, the Commission has not received a completed Form F50.

[9] Having regard to the material before me, I am satisfied that given Mr Lovett’s advice, that he intended to discontinue his application, but has not filed a Form F50.

[10] Section 588 of the Act provides:

“588 Discontinuing applications

A person who has applied to the FWC may discontinue the application:

(a) in accordance with the procedural rules (if any); and

(b) whether or not the matter has been settled.”

[11] I have decided to waive compliance with the Fair Work Commission Rules 2013.

[12] Rule 6 of the Rules provides that the Commission may dispense with compliance with the Rules. I have decided to waive compliance with the requirement that Mr Lovett file and serve a Form F50 as I am satisfied that Mr Lovett has discontinued his application.

[13] The application is therefore, discontinued.

COMMISSIONER

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