Jacqueline Burns v Australian Taxation Office
[2018] FWC 3277
•7 JUNE 2018
| [2018] FWC 3277 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jacqueline Burns
v
Australian Taxation Office
(U2017/13010)
| COMMISSIONER BISSETT | MELBOURNE, 7 JUNE 2018 |
Application for an unfair dismissal remedy – Application dismissed.
On 5 December 2017, Mrs Jacqueline Burns made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mrs Burns said that her employment had been terminated by the Australian Taxation Office (the ATO) on 14 November 2017.
The matter was listed for conciliation on 9 January 2018, however the matter did not settle.
On 9 January 2018, directions were issued by the Commission. Mrs Burns was directed to file material in support of her application by no later than noon on 29 January 2018. The ATO was directed to file its material in opposition to the application by no later than noon on 19 February 2018. The directions were reconfirmed in a Notice of Listing sent by email to the parties on 11 January 2018.
On 25 January 2018, an SMS reminder was sent to Mrs Burns reminding her that her submissions were due to be filed on 29 January 2018. Mrs Burns did not file any material.
On 29 January 2018, the Commission contacted Mrs Burns by telephone regarding her failure to file submissions. Mrs Burns advised that the parties had reached an in principal agreement that morning. On the same day, Mrs Burns sent email correspondence to the Commission confirming that she had reached an in principle settlement agreement with the ATO. The Commission then confirmed receipt of Mrs Burn’s correspondence and sent the following to the parties:
“The Applicant has advised the Fair Work Commission that the parties have reached an in principal agreement. The Requirements [for the filing of material] have now been vacated. When a Notice of Discontinuance is filed with the Fair Work Commission, the hearing/conference dates will be vacated.”
On 20 February 2018, the Commission sent email correspondence to Mrs Burns advising that the Commission had not yet received a Form F50 – Notice of Discontinuance (Notice of Discontinuance) from her. The correspondence requested that she file a Notice of Discontinuance so that the file may be assessed for eligibility to have the filing fee refunded and then closed. A copy of a Notice of Discontinuance was attached to the email.
On 13 March 2018, the Commission sought to contact Mrs Burns by telephone regarding her Notice of Discontinuance, however she did not answer the call and the Commission was unable to leave a voicemail message.
On 14 March 2018, the Commission vacated the hearing dates of 15 and 16 March 2018. This notification was emailed to the parties, and also posted to Mrs Burns, and provided that the matter would not be closed until a Notice of Discontinuance had been filed with the Commission.
On 19 March 2018, Ms Regina Rutten, Lawyer, General Counsel at the ATO, sent email correspondence to Mrs Burns, copying the Commission, stating:
“I refer to the email [dated 20 February 2018] from the Fair Work Commission (FWC), and to our deed of settlement and release in relation to this matter.
As agreed in that deed, please immediately lodge a Notice of Discontinuance with the FWC and provide a copy to me by return email. For your ease of reference, I have attached a FWC Notice of Discontinuance form.”
On 22 March 2018, the Commission again sought to contact Mrs Burns by telephone regarding her Notice of Discontinuance. She did not answer the call and the Commission was unable to leave a voicemail message.
On 13 April 2018, the Commission sent an email to Mrs Burns requesting she file a Notice of Discontinuance. This correspondence stated that if Mrs Burns failed to file a Notice of Discontinuance by close of business on 20 April 2018, her matter would be referred to the Panel Head to be dismissed.
On 2 May 2018, the Associate to Deputy President Clancy sent email correspondence to the parties advising that the matter had been allocated to the Deputy President in his capacity as Panel Head of Termination of Employment. The correspondence requested the ATO provide a copy of the Deed of Settlement and Release (the Deed) referred to in the email dated 19 March 2018, together with advice as to whether it intended to make an application pursuant to s.399A of the Act.
On 9 May 2018, a representative of the ATO contacted the Chambers of Deputy President Clancy by telephone. The ATO advised the Deputy President’s Associate that it was unsure as to whether it should file an application pursuant to s.399A as it wished to minimise the cost and time spent on the matter. It also noted that the ATO believed this matter to be finalised from its perspective. The ATO sought confirmation from the Associate as to how the matter would progress if a s.399A application was to be made. The Associate advised that it was at the Deputy President’s discretion as to how the matter would proceed and if they wished to seek further clarification, a request should be made in writing for the Deputy President’s consideration.
On 10 May 2018, the ATO sent email correspondence to the Chambers of Deputy President Clancy attaching an executed copy of the Deed dated 16 February 2018. The ATO also advised that it had complied with all of its obligations under the Deed. Further, the ATO noted that:
“Clause 4 of the Deed requires Ms Burns to lodge a Notice of Discontinuance with the Fair Work Commission (“FWC”) within 7 days of the Deed being executed, and we understand that she has not yet done this. At this stage, the ATO does not intend to make an application under section 399A of the Fair Work Act 2009 (Cth). We understand the FWC may dismiss the matter on its own motion under section 587, and we are happy to provide any further assistance the FWC requires.”
On 14 May 2018, the Associate to Deputy President Clancy sent further email corrospondence to the ATO advising that the Deputy President had reviewed the recent correspondence and directed that an application be made under s.399A of the Act if the ATO sought to have the matter dismissed.
On 15 May 2018, Ms Rutton, contacted the Chambers of Deputy President Clancy by telephone. She advised that whilst the ATO had not intended to make an application under s.399A of the Act, it would assist the Commission if this was considered to be a requirement. The Deputy President’s Associate advised Ms Rutton that as per the email of 14 May 2018, the Deputy President directed that if the ATO wished for the matter to be dismissed, an application pursuant to s.399A of the Act should be made. The Associate further advised the process by which the application will take upon receipt, and requested that should the ATO wish to make an application, that it be filed within one week.
On 21 May 2018, the ATO filed an application pursuant to s.399A(1)(c) of the Act. It sought to have the matter dismissed on the basis that Mrs Burns had “unreasonably failed to discontinue the application after a settlement agreement [had] been concluded”.
The ATO submitted that the parties agreed to settle the matter in the terms set out in the Deed which was executed on 16 February 2018. Further, it submitted that it satisfied all of its obligations under the Deed on 23 February 2018 and Mrs Burns was required by the Deed to lodge a Notice of Discontinuance with the Commission within seven days of the Deed being executed. The ATO referred to the Commission’s email correspondence to Mrs Burns on 20 February 2018 and 13 April 2018, and its email correspondence to Mrs Burns on 19 March 2018, each requesting that Mrs Burns file a Notice of Discontinuance. The ATO noted that Mrs Burns has not responded to these requests.
The ATO submitted that all terms of the Deed, other than the filing of the Notice of Discontinuance, have been met and that Mrs Burns has been afforded a number of opportunities to fulfil her obligations and has failed to do so. Further, it noted that Mrs Burns has not indicated that she does not wish for her matter to be discontinued. Accordingly, the ATO submitted that Mrs Burns has “unreasonably failed to discontinue the application after a settlement agreement has been concluded” and the matter should be dismissed pursuant to s.399A(1)(c) of the Act.
On 24 May 2018, correspondence was sent to Mrs Burns’ nominated email and postal addresses advising her of the ATO’s s.399A application. Mrs Burns was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 1 June 2018. This correspondence stated that if the Commission did not receive a response, Mrs Burns’ application for relief from unfair dismissal would be dismissed. This correspondence was sent to Mrs Burns by express post and was confirmed to have been delivered on 25 May 2018.
To date, Mrs Burns has not filed any material with the Commission.
Section 399A of the Act provides as follows:
399A Dismissing applications
(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:
(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(b) failed to comply with a direction or order of the FWC relating to the application; or
(c) failed to discontinue the application after a settlement agreement has been concluded.
....
(2) The FWC may exercise its power under subsection (1) on application by the employer.
(3) This section does not limit when the FWC may dismiss an application.
Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.
As Mrs Burns did not file any material in opposition to the application to dismiss, I will determine the application on the papers.
On review of the material, I am satisfied Mrs Burns entered into a settlement agreement with the ATO and that the ATO complied with its obligations under the Deed. I am also satisfied Mrs Burns has unreasonably failed to discontinue her application after a settlement agreement has been concluded. Furthermore, Mrs Burns has provided no explanation for her failure to do so.
In these circumstances, I am persuaded that I should exercise my discretion under s.399A(1)(c) of the Act and dismiss Mrs Burns’ application. This will deliver finality to the parties. An order giving effect to this decision will be issued today.
COMMISSIONER
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