James Kelly v Stramit Corporation Pty Ltd T/A Stramit

[2017] FWC 3428

[2017] FWC 3428

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Kelly
v
Stramit Corporation Pty Ltd T/A Stramit
(U2017/1409)

DEPUTY PRESIDENT CLANCY MELBOURNE, 28 JUNE 2017

Application for an unfair dismissal remedy.

[1] On 9 February 2017, Mr James Kelly made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Kelly said his employment had been terminated by Stramit Corporation Pty Ltd (Stramit) on 6 February 2017.

[2] The matter was the subject of conciliation on 17 March 2017, after which, the parties agreed that the file would be held open for a period in order for them to consider their positions.

[3] On 7 June 2017, Stramit filed an application under s.399A(1)(c) of the Act, that the matter be dismissed as Mr Kelly had failed to discontinue the application after a settlement agreement has been concluded. Stramit submitted the parties had settled the claim on the terms contained in a Deed of Settlement and Release dated 6 April 2017, which had been executed by both parties in counterpart form, copies of which it attached to its s.399A application. Stramit said it had complied with all its obligations under the Deed, however, Mr Kelly who was required to file a Notice of Discontinuance within seven days of executing the Deed, had not done so.

[4] On 16 June 2017, correspondence was sent to Mr Kelly, via express post and email, informing him of Stramit’s s.399A application. Mr Kelly was provided with a copy of Stramit’s s.399A application and the executed Deeds. Mr Kelly was directed to file submissions and other documentary material in respect of the s.399A application by close of business on Friday 23 June 2017. Mr Kelly was advised that if no material was received, his application for relief from unfair dismissal would be dismissed.

[5] On review of the Australia Post tracking number, it appears the correspondence of 16 June 2017 was delivered to Mr Kelly on 20 June 2017.

[6] To date, Mr Kelly has not filed any material or made contact with the Commission.

[7] 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.

[8] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[9] As Mr Kelly did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[10] On review of the material, I am satisfied Mr Kelly concluded a settlement agreement with Stramit. I am also satisfied Mr Kelly has unreasonably failed to discontinue his unfair dismissal application. He has provided no explanation for his 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 Mr Kelly’s application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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