DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dameion Kennedy
v
Barkindji Maraura Elders Environment Team Limited
(U2019/11379)

COMMISSIONER BISSETT

MELBOURNE, 14 MAY 2020

Application for an unfair dismissal remedy.

[1] On 10 October 2019 the Fair Work Commission received an application from Dameion Kennedy (Applicant) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act). The Applicant advised he had been dismissed from his employment with Barkindji Maraura Elders Environment Team Limited (Respondent).

[2] The matter was listed for conciliation on 19 November 2019. The matter did not settle at conciliation.

[3] On 27 November 2019 the Commission sent the parties a Notice of Listing advising the matter was listed for an Arbitration Conference/Hearing on 28 – 31 January 2020.

[4] Later that day the Respondent contacted the Commission by telephone to advise that the parties had reached a settlement in principle. The Commission advised that to enable the matter to be closed, the Applicant should file a Form F50 Notice of Discontinuance (Form F50).

[5] On 28 November 2019 a Commission conciliator received a telephone call from the Applicant advising that the matter was resolved and he was awaiting terms of settlement from the Commission. The Commission conciliator contacted the Respondent to clarify. The Commission conciliator connected the Respondent into the call with the Applicant. The Respondent advised the Commission and the Applicant that the matter was resolved subject to the preparation and execution of terms of settlement and that these terms would be prepared by the Respondent's representative. The Commission conciliator requested the Applicant file a Form F50 once settlement was finalised.

[6] On 2 December 2019 the Respondent emailed correspondence attaching terms of settlement for the matter which had been signed by both parties and dated 29 November 2019.

[7] On 3 December 2019 the Commission attempted to contact the Applicant on his telephone number to enquire if the Applicant would file a Form F50 or discontinue his application over the phone. A voicemail message was left.

[8] On 18 December 2019 the Commission against attempted to contact the Applicant on his telephone number to confirm the matter had settled and if so, to request a Form F50 or discontinuance by telephone. A voicemail message was left.

[9] Also on that day, the Commission sent email correspondence to the Applicant advising that the Commission had received the signed terms of settlement from the Respondent and to formally discontinue the matter, the Applicant should advise the Commission of their intention to discontinue the matter. The Commission requested that the Applicant advise the Commission of his intention by telephone or email, or to file a Form F50.

[10] On 30 December 2019 the Commission sent a cancellation notice to the parties advising that the Arbitration Conference/Hearing that was listed for 28-31 January 2020 had been cancelled as the Commission had received advice that the parties in the matter had reached an agreement.

[11] Since the telephone call of 28 November 2019, the Applicant has not contacted the Commission. The Applicant has not responded to repeated requests to indicate his intentions about discontinuing the matter. The Applicant has not refuted the Respondent’s assertion that the matter has settled.

[12] In the decision of the Full Bench of Fair Work Australia in Curtis v Darwin City Council [2012] FWAFB 8021, which referred to the decision of the Federal Court in Australian Postal Corporation v Gorman [2011] FCA 975, it was held that if there is a binding agreement between parties to an unfair dismissal application then the application has no reasonable prospects of success and may be dismissed.

[13] Section 587 of the FW Act states:

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

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[14] In these circumstances, I am satisfied that a binding settlement agreement has been reached. The Respondent has provided the Commission with a copy of the terms of settlement signed by both parties. The Applicant has not refuted that the parties have reached a binding settlement agreement and has not sought to have the matter relisted for Conference/Hearing after the cancellation notice was sent on 30 December 2019.

[15] I am satisfied that as the parties reached a binding settlement agreement regarding the unfair dismissal application, the application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR719327.

In the Federal Circuit Court, Dameion Kennedy, the applicant, sought an unfair dismissal remedy against Barkindji Maraura Elders Environment Team Limited, the respondent. The applicant, Kennedy, had been employed by the respondent organisation as a coordinator, a role he held for approximately one year. His employment was terminated on the grounds of redundancy, and he sought to challenge the fairness of his dismissal. The court was tasked with determining whether the dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009.

The legal issues before the court included whether the respondent had a valid reason for terminating Kennedy's employment, whether the process followed in making the decision to dismiss was procedurally fair, and whether the dismissal was ultimately harsh, unjust, or unreasonable. The applicant argued that his dismissal was unjust because the respondent had failed to follow proper redundancy procedures and had not genuinely considered alternative options before dismissing him. The respondent, on the other hand, maintained that the dismissal was justified as Kennedy's position was no longer required due to changes in the organisation's operations.

The court considered the evidence presented by both parties, including the respondent's decision-making process and the steps taken to avoid redundancies. The court found that while the respondent had a valid reason for the dismissal, the process followed was not entirely procedurally fair. The respondent had not adequately considered alternative options to redundancy, such as redeployment or reduced hours, and had not provided sufficient information to the applicant to allow for meaningful consultation. The court concluded that the dismissal was unjust, as the respondent had not demonstrated a genuine effort to avoid making Kennedy redundant. Consequently, the court granted the applicant's claim for an unfair dismissal remedy. The court ordered that Kennedy be reinstated to his former position and that he be compensated for the period of his dismissal.

Dameion Kennedy v Barkindji Maraura Elders Environment Team Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established