Ebony Smith v Majestic Sound Unit Trust

[2020] FWC 1653

[2020] FWC 1653

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ebony Smith
v
Majestic Sound Unit Trust
(U2019/7425)

COMMISSIONER BISSETT MELBOURNE, 2 APRIL 2020

Application for an unfair dismissal remedy.

[1] On 7 July 2019 Ms Ebony Smith (Applicant) made an application to the Fair Work Commission seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). The Applicant was employed by Majestic Sound Unit Trust (Respondent). Her employment was terminated on 19 June 2019.

[2] The matter was listed for conciliation conference on 29 August 2019. The matter was not settled at this conciliation conference.

[3] On 9 September 2019 Directions were issued to the parties and the matter was listed for Jurisdiction (Genuine redundancy) and Arbitration Conference/Hearing on 31 October and 1 November 2019. As the Respondent raised a jurisdictional objection, they were required to file material prior to the Applicant.

[4] On 19 September 2019 the Respondent representative telephoned the Commission to advise that the Respondent had sent an offer to the Applicant in an attempt to settle the matter.

[5] On 23 September 2019 the Respondent’s representative emailed correspondence to the Commission requesting an extension to file materials as the Respondent had drafted terms of settlement that had been sent to the Applicant’s representative to consider. This email was forwarded to the Applicant’s representative.

[6] Later that day the Applicant’s representative telephoned the Commission to advise that they had not yet reached an in principle settlement with the Respondent. The Commission advised that they would await advice from the Applicant or their representative that the matter had settled.

[7] As a result of the Respondent’s request, an amended Notice of Listing was dispatched to the parties with amended Directions for filing.

[8] On 26 September 2019 the Respondent’s representative telephoned the Commission to advise that the Respondent had made an offer to the Applicant who returned a counter offer however, the Respondent contact person who was authorised to provide instructions was suffering from a medical condition and was not fit to participate in proceedings.

[9] Later that day, the Respondent’s representative emailed correspondence to the Commission requesting a three week extension of time to file materials to allow the Respondent contact person to recover prior to giving instructions. On 30 September 2019 the Respondent’s representative provided the Commission with a medical certificate in support of their request.

[10] On 1 October 2019 an amended Notice of Listing was issued to the parties granting an extension of time to file materials. As a result of the extension, the Conference/Hearing was adjourned to 18 – 19 November 2019.

[11] On 21 October 2019 the Applicant’s representative emailed correspondence to the Commission advising that the parties have reached an in principle agreement to settle the matter, subject to the parties complying with the Terms of Settlement. The correspondence also advised that the settlement involved part payments over a period of time so the Applicant could not file a Form F50 Notice of Discontinuance (Form F50) until the last payment on 17 January 2020.

[12] On 6 December 2019 the Commission telephoned the Applicant’s representative to seek an update on the progress of the matter. The Applicant’s representative advised that the settlement payment was taking place over monthly instalments with the last being due in late January 2020. The Applicant’s representative advised that after that time they would file a Form F50.

[13] On 17 February 2020 the Commission emailed correspondence to the Applicant’s representative advising that the Commission was awaiting a Form F50 to be filed to close the matter. The correspondence advised if a Form F50 is not filed within 2 weeks, the matter may be listed for a mention before a Member of the Commission.

[14] Later that day the Applicant’s representative telephoned the Commission to advise that the settlement payment had only been partly paid and they were considering seeking a remedy through the Magistrates’ Court. The Applicant’s representative asked the Commission if the matter could be continued in the Commission. The Applicant’s representative was advised to put this request in writing so that it could be considered by a Member of the Commission.

[15] To date, neither the Applicant nor their representative has taken any further steps to engage with the Commission regarding the application. Neither the Applicant nor their representative have filed a Form F50 with the Commission. Additionally, there has been no correspondence providing an update on the status of this matter nor any assertion that the parties have not reached a binding settlement agreement.

[16] In the decision of the Federal Court in Australian Postal Corporation v Gorman 1, it was held that if there is a binding agreement in place between the parties, an application for unfair dismissal can be dismissed for having no reasonable prospects of success. In this respect I would further note that issues in relation to compliance with a settlement agreement are not matters for the Commission and do not provide grounds for the Commission to deal with the originating application.

[17] Section 587(1) of the FW 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.

[18] In the circumstances I am satisfied that the parties reached a binding agreement regarding Ms Smith’s application for unfair dismissal. This does not appear to be disputed. Accordingly, the application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the FW Act. An Order 2 to this effect will be issued shortly.

COMMISSIONER

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 1 [2011] FCA 975.

 2   PR717857.