Kylie Harrison v Gippsland and East Gippsland Aboriginal Co-operative Ltd T/A Geagc

[2018] FWC 7625

[2018] FWC 7625

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kylie Harrison
v
Gippsland and East Gippsland Aboriginal Co-operative Ltd T/A GEAGC
(U2018/8296)

DEPUTY PRESIDENT CLANCY MELBOURNE, 17 DECEMBER 2018

Application for an unfair dismissal remedy.

[1] On 12 August 2018, Ms Kylie Harrison 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). Ms Harrison said her employment had been terminated by Gippsland and East Gippsland Aboriginal Co-operative Ltd T/A GEAGC (GEGAC) on 25 July 2018.

[2] The matter was listed for conciliation on 7 September 2018, however it could not take place as GEGAC did not wish to participate. Consequently, directions were issued for the filing of material. Ms Harrison was directed to file her material by no later than noon on 1 October 2018. GEGAC was directed to file its material by no later than noon on 22 October 2018.

[3] As no material was received by noon on 1 October 2018, the Commission attempted to contact Ms Harrison on 2 October 2018 regarding the status of her submissions. A voicemail message was left seeking a return call.

[4] On 3 October 2018, a further voicemail message was left for Ms Harrison where it was noted that if no material was received, the matter may proceed to a non-compliance hearing. An email was then sent to Ms Harrison which advised if no contact was made with the Commission by noon the following day, the matter would be listed for a non-compliance hearing on 5 October 2018.

[5] On 4 October 2018, another voicemail message was left for Ms Harrison seeking her return call as soon as possible. Later that day, a Notice of Listing was sent to the parties confirming the details of the non-compliance hearing on 5 October 2018. Ms Harrison forwarded an email to the Commission later that evening which contained an offer of settlement from GEGAC’s legal representative. Ms Harrison did not otherwise write anything in the body of the email.

[6] The non-compliance hearing proceeded before Commissioner Wilson on 5 October 2018. Ms Harrison attended along with GEGAC’s legal representative. Commissioner Wilson determined to extend the time for the filing of material and amended directions were sent to the parties. Ms Harrison was directed to file her material by no later than noon on 22 October 2018. An email was also sent to Ms Harrison with template documents to assist her in the preparation of her material. Ms Harrison subsequently filed her material.

[7] On 31 October 2018, GEGAC’s legal representative wrote to the Commission and advised the parties had reached an in-principle settlement of the matter.

[8] On 2 November 2018, an attempt was made to telephone Ms Harrison in relation to the settlement advice the Commission had received. A voicemail message was left seeking a return call.

[9] On 14 November 2018, GEGAC’s legal representative advised the Commission that both parties had signed the terms of settlement. Email correspondence was then sent to Ms Harrison seeking her confirmation that the matter had reached a settlement.

[10] On 26 November 2018, Ms Harrison wrote to the Commission and advised the correct settlement amount was not received.

[11] On 27 November 2018, GEGAC filed an application to dismiss Ms Harrison’s application pursuant to s.399A(1)(c) of the Act. The s.399A application is made on the basis Ms Harrison has unreasonably failed to discontinue her application after a settlement agreement has been concluded.

[12] GEGAC submitted that on 29 October 2018, its legal representative wrote to Ms Harrison and made an offer of settlement. Attached to the email was a Settlement Agreement (the Agreement) which provided a payment term of $3,292.39 gross, less applicable taxation. Two days later, Ms Harrison telephoned the representative and advised she would accept the Agreement. Ms Harrison confirmed she had read the Agreement and reiterated that she accepted the offer. On the same day, Ms Harrison returned an executed copy of the Agreement. On 1 November 2018, a fully executed copy of the Agreement was provided to Ms Harrison. This was attached to GEGAC’s s.399A application. GEGAC submitted Ms Harrison demonstrated her understanding of the requirement to file a Notice of Discontinuance when she asked the firm for a copy of the form which she could send off once the money was in her account.

[13] GEGAC submitted on or around 7 November 2018 Ms Harrison was paid $2,248.39, which represented $3,292.39 less applicable taxation. Ms Harrison has then not complied with her obligation to file a Notice of Discontinuance within seven days of receiving the settlement amount, or at all. GEGAC submitted that in text messages with its representative, Ms Harrison now claims that the settlement amount should not have been taxed and she is entitled to be paid GST.

[14] On 4 December 2018, I caused correspondence to be sent to Ms Harrison directing her to provide a response to GEGAC’s s.399A application by 4.00pm on 11 December 2018. The correspondence was sent to Ms Harrison via email and express post. The Australia Post tracking ID indicates the letter was delivered on 5 December 2018.

[15] To date, Ms Harrison has not filed any material in response to the s.399A application.

[16] 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.

[17] The power to dismiss an application if the non-compliance was unreasonable is discretionary. GEGAC has provided evidence of both the signed Settlement Agreement and a payslip which demonstrates it has complied with its obligations under the terms. I am therefore satisfied Ms Harrison has unreasonably failed to discontinue her application after a settlement agreement has been concluded. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Ms Harrison’s application. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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