Jack Mcmaster v McDonalds Australia Ltd T/A McDonalds Australia

[2016] FWC 5402

[2016] FWC 5402

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Jack Mcmaster
v
McDonalds Australia Ltd T/A McDonalds Australia
(U2016/52)

COMMISSIONER WILSON MELBOURNE, 4 AUGUST 2016

Application for relief from unfair dismissal; application discontinued.

[1] An application for unfair dismissal remedy made pursuant to s.394 of the Fair Work Act 2009 (the Act) was lodged by Mr Jack Mcmaster on 5 January 2016, alleging unfair dismissal against his former employer, McDonalds Australia.

[2] The matter was listed before me for an Extension of Time hearing on 5 February 2016, to determine whether exceptional circumstances existed for the acceptance of Mr Mcmaster’s application outside the prescribed 21 day limit for the filing of such applications.

[3] At the time the matter was allocated to my Chambers, perusal of the file indicated email correspondence and files notes of telephone conversations indicating that the parties were in settlement discussions. Significantly, the following email was received from the Applicant on 18 January 2016;

“To whom it may concern,
I Jack McMaster case number U2016/52 here by withdraw my unfair dismissal case against mcdonalds i have decided to enter into negation with Mcdonalds.
with the view of returning.

sincerely Jack McMaster”

[4] On 2 February 2016, my Chambers contacted the parties seeking an update on the status of any settlement discussions. On 3 February and 4 February the Respondent and Applicant, respectively, advised by telephone that the matter had resolved. The listing was vacated and the Applicant was instructed to file and serve a Form F50 – Notice of Discontinuance in due course.

[5] On 15 March 2016 and 20 June 2016 my Chambers wrote to Mr Mcmaster, seeking a Form F50 be filed. No response has been received from the Applicant.

[6] On 21 Jun 2016, the Respondent advised the Commission that the matter had resolved by agreement in March 2016 and that the file should be closed.

[7] No contact has been received from Mr Mcmaster since 4 February 2016, and certainly not in response to the aforementioned email correspondence.

[8] Having regard to the material before me, I am satisfied that the matter has settled, and that Mr Mcmaster, in so doing, intended to discontinue his application but has not filed a Form F50.

[9] 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.

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

[11] 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 Mcmaster file and serve a Form F50 as I am satisfied that Mr Mcmaster has discontinued his application.

[12] The application is, therefore, discontinued.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR583783>