Jai Carroll v Advanced Circular Polymers

[2020] FWC 6076

[2020] FWC 6076

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jai Carroll
v
Advanced Circular Polymers
(U2020/11102)

COMMISSIONER BISSETT MELBOURNE, 12 NOVEMBER 2020

Application for an unfair dismissal remedy – failure to discontinue the application after a settlement agreement has been concluded– s.399A application to dismiss – application granted.

[1] On 14 August 2020 Mr Jai Carroll (Applicant) made an application to the Fair Work Commission (Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act). The Applicant said that his employment had been terminated by Advanced Circular Polymers (Respondent) on 28 July 2020.

[2] The matter was listed for conciliation on 23 September 2020. The matter was settled at this conciliation with a cooling off period that ended on 30 September 2020.

[3] On 1 October 2020 the Commission issued correspondence to the parties advising the matter had settled and that the file would be closed.

[4] On 19 October 2020 the Respondent’s representative contacted the Commission by telephone and informed the Commission that a Notice of Discontinuance had not been received from the Applicant.

[5] On 23 October 2020 the Respondent submitted a Form F1 in which it requested that the application of the Applicant be dismissed under section 399A(1)(c) of the FW Act, as the Applicant had not submitted a Notice of Discontinuance. On 26 October 2020 the Commission attempted to contact the Applicant by telephone. There was no answer so a voice message was left informing the Applicant that the Respondent had submitted a Form F1 requesting the unfair dismissal application be dismissed and whether the Applicant intended to file a Notice of Discontinuance. Two further telephone calls were made to the Applicant on 27 October 2020. There was no answer in both instances, and similar voice messages were left.

[6] On 29 October 2020 this matter was referred to my Chambers for consideration. On that day my Chambers issued correspondence to the parties by email. That correspondence informed the Applicant that an application had been received from the Respondent seeking that the Commission dismiss his application as he had failed to discontinue the application having reached a settlement with Respondent.

[7] The correspondence further stated:

In order for the Commission to give proper consideration to the application of the Respondent Commissioner Bissett directs that you file with the Commission and serve on (send to) the Respondent submissions:

1. As to whether you reached a settlement agreement with the Respondent;

2. If you intend to notify the Commission that you discontinue your application.

Alternatively you can, by return email, notify the Commission that you wish to discontinue your application for relief from unfair dismissal.

You are directed to provide a response to this requirement by 4.00pm Wednesday 11 November 2020.

You should note that if you fail to respond to this email the Commission may determine the application of the Respondent to dismiss your application without further contact with you.

[8] There was no submission received from the Applicant.

[9] Section 399A of the FW 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.

[10] Section 593 of the FW Act provides that the Commission is not required to hold a hearing except as provided by the FW Act. As the Applicant did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[11] The power to dismiss an application if the applicant unreasonably failed to discontinue an application following a settlement agreement is discretionary. The Applicant has failed to respond to numerous attempts made by the Commission to contact him. The Applicant and has not provided an explanation to the Commission for his failure to discontinue his application following the payment of the settlement sum.

[12] In these circumstances, I am persuaded that I should exercise my discretion under s.399A(1)(c) and dismiss the Applicant’s application. An order 1 giving effect to this decision will be issued separately.

COMMISSIONER

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