Lucy King v Pinkys Pizza and Ribs on the Run Warrnambool

[2020] FWC 2033

[2020] FWC 2033

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lucy King
v
Pinkys Pizza and Ribs on the Run Warrnambool
(U2020/704)

COMMISSIONER BISSETT MELBOURNE, 22 APRIL 2020

Application for an unfair dismissal remedy – failure to discontinue the application after a settlement agreement has been concluded – application dismissed.

[1] On 22 January 2020, Ms Lucy King (Applicant) made an application to the Fair Work Commission seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). The Applicant said her employment had been terminated by Pinkys Pizza and Ribs on the Run Warrnambool (Respondent) on 21 January 2020.

[2] A Notice of Listing was issued to the parties on 24 January 2020 scheduling a conciliation by telephone on 27 February 2020.

[3] That same day the Commission telephoned the Applicant on her nominated telephone number to confirm her preferred contact number for the purpose of conciliation. The Applicant did not answer the call and a voicemail message was left requesting a call back. This was followed by email correspondence to the Applicant’s nominated email address requesting contact details for the conciliation.

[4] The Applicant contacted the Commission later that day and provided her preferred telephone number for the conciliation.

[5] On 5 February 2020 the Commission received email correspondent from the Respondent advising that the parties were in discussions in an attempt to resolve the matter.

[6] On 19 February 2020 the Respondent wrote to the Commission advising that the parties had “reached a settlement…and Terms of Settlement were signed over the weekend. We are hopeful that you will have Lucy King’s Notice of Discontinuance in the next few days. Lucy has been cc’d in on this email”.

[7] On 24 February 2020 the Commission twice attempted to telephone the Applicant on her nominated telephone number to seek confirmation of the settlement agreement. The Applicant failed to answer the call. A voicemail message was left asking the Applicant to contact the Commission. The Applicant did not return the Commission’s call.

[8] On 26 February 2020 the Respondent sent email correspondence to the Commission advising that “[t]he parties have signed Terms of Settlement and the relevant payment under the terms has been paid to the Applicant.  The Applicant is yet to file the Notice of Discontinuance.”

[9] That same day the Commission made several attempts to telephone the Applicant on her nominated telephone number to confirm her preferred telephone number for the conciliation and to confirm whether a settlement agreement had been reached in the matter. The Applicant did not answer the call and a voicemail message was left asking the Applicant to contact the Commission. An SMS message was sent to the parties’ nominated telephone number reminding them of the conciliation for the following day.

[10] The conciliation on 27 February 2020 did not proceed as scheduled due to conciliator unavailability. Subsequently the Commission sent the following correspondence to the parties’ nominated email address advising that:

Unfortunately due to Conciliator unavailability the matter cannot proceed today.

The matter will be relisted after the 16^th March. Please provide any dates you are unavailable from the 16^th March onwards…

If parties have been able to reach a settlement prior to the conciliation, the applicant needs to advise the Commission…to withdraw the matter.

[11] The Applicant did not respond to the correspondence.

[12] On 3 March 2020 an Amended Notice of Listing was issued to the parties scheduling a conciliation by telephone for 24 March 2020.

[13] On 18 March 2020, the Respondent filed an application to dismiss the Applicant’s unfair dismissal application pursuant to s.399A(1)(c) of the FW Act on the basis that the Applicant had failed to discontinue her application after a settlement agreement had concluded.

[14] On 19 March 2020 the Commission attempted several times to contact the Applicant on her nominated mobile number to confirm whether a settlement agreement had been reached. The Applicant did not answer the calls and voicemail messages were left requesting the Applicant contact the Commission. The Applicant failed to return the Commission’s calls.

[15] On 23 March 2020 the Commission again attempted to telephone the Applicant on her nominated telephone number to confirm her preferred telephone number for the conciliation and to enquire whether a settlement agreement had been reached in the matter. The Applicant did not answer the call and a voicemail message was left requesting she contact the Commission urgently. The Applicant did not return the Commission’s call.

[16] An SMS message was later sent to the parties’ nominated telephone number reminding them of the conciliation for the following day.

[17] The conciliation on 24 March 2020 did not proceed as scheduled due to the Applicant’s failure to attend.

[18] On 27 March 2020, the Commission sent email correspondence to the Applicant’s nominated email address advising that the Respondent had made an application to have her unfair dismissal application dismissed as the parties had reached a settlement and in light of this, the Commission was considering whether to dismiss her application under s.587 of the FW Act because it has no reasonable prospects of success. The Applicant was directed to file with the Commission submissions and evidence by 4.00 pm on 2 April 2020 as to whether a binding settlement agreement had been reached between the parties and whether the application should or should not be dismissed on the basis that it has no reasonable prospects of success. The correspondence also warned the Applicant that if the Commission did not receive a response, it may determine the matter with no further correspondence.

[19] The Applicant did not file any material in opposition to the application to dismiss.

[20] To date, the Applicant has failed to respond to numerous attempts made by the Commission to contact her. The Applicant has not complied with the directions of the Commission to file submissions on why her unfair dismissal application should not be dismissed and she has not contested the Respondent’s assertion that the parties have reached a binding settlement.

[21] 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.

[22] 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.

[23] Section 587(1) of the FW Act provides as follows:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

[24] I am satisfied that in the circumstances where there is a binding agreement between the parties, and in the absence of any material to the contrary, I should exercise my power under s.587(1)(c) of the FW Act to dismiss the Applicant’s application. An order 1 to this effect will be issued shortly.

COMMISSIONER

<PR718377>

 1   PR718378.