David Abrahams v Central Desert Shire Council

[2017] FWC 2366

[2017] FWC 2366

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.365—General protections

David Abrahams
v
Central Desert Shire Council
(C2012/5585)

COMMISSIONER PLATT ADELAIDE, 1 MAY 2017

Application for directions on procedure – request to re-open matter refused.

[1] On 9 October 2012, Mr Abraham lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging his employment was terminated by Central Desert Shire Council in contravention of the general protections provision. The Fair Work Commission’s (the Commission) records indicate that the matter was settled on 27 November 2012.

[2] On 5 April 2017, Mr Abraham lodged a Form F48 Application for Directions on Procedure in respect of the matter described above.

[3] The matter was listed for a conference on 11 April 2017 to determine whether permission would be granted to re-open the matter, and any jurisdictional issues. Mr Abraham represented himself and Mr Scott Roffey of the Western Australian Local Government Association represented the Central Desert Shirt Council. A sound file record of the telephone conference was kept. At the conclusion of the conference, I advised Mr Abraham that the matter would not be re-opened these are the reasons for that decision.

[4] At the conference, Mr Abraham explained that in 2012 he had reached agreement with Central Desert Shire Council to settle his s.365 application and as part of that settlement a non-disparagement clause had been agreed. The settlement agreement is not contained in the Commission’s records and a copy was not produced in these proceedings.

[5] Mr Abraham sought to have the matter re-opened on the basis that in February 2013 he applied for a casual/part-time position with a water transport company in the Adelaide Hills. Mr Abraham advised he had sent a resume via email applying for a position and received a very positive response from the prospective employer. He was invited to an interview and upon arrival was made to wait on the verandah for almost one hour. When the interviewer arrived, they appeared to have changed their mind. Mr Abraham suggests that the hour that he waited on the verandah (which he advises is the time difference between South Australia’s daylight savings time and Northern Territory’s time) the interviewer had contacted Central Desert Shire Council and received an adverse reference. Mr Abraham explained that he is aware that although Central Desert Shire Council opens at 8:00am, staff do not arrive until 8:30am/9:00am and therefore no one would have been available on the switchboard at the time he arrived for the interview.

[6] During the conference, I asked Mr Abraham whether the interviewer, someone from the Central Desert Shire Council or a third party had told him that the perspective employer had contacted Central Desert Shire Council. Mr Abraham advised he did not have any further evidence.

[7] Mr Scott Roffey on behalf of the Central Desert Shire Council advised he was not aware of any contact.

[8] Mr Abraham believes that the non-disparagement provisions of the deed have been breached. The evidence supporting this contention is speculative at best. In any event, the Commission does not have jurisdiction to enforce settlement agreements. Generally speaking, the Commission has the power to determine rights – enforcement of those rights is a matter for a Court. In addition, the Commission powers in s.365 applications are limited to the conduct of mediation and/or conciliation, and the issue of a certificate if these processes are unsuccessful. The Commission does not have power to determine s.365 applications.

[9] Mr Abraham was unable to satisfactory explain the 4 year delay in seeking to re-open the matter, other than suggesting that the prospective employer had refused to provide copies of its telephone records in the absence of a Court Order.

[10] In light of the lack of jurisdiction to deal with complaints concerning the breach of the settlement agreement, the lack of evidence and the delay in bringing this application, I decline to exercise my discretion to re-open the matter.

COMMISSIONER

Appearances (by telephone):

Mr Abraham, the Applicant.

Mr Roffey of the Western Australian Local Government Association on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

April 11.

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