Margaret Schaffer v Vidhate Family Trust T/A Malaga Dental Clinic

[2020] FWC 3256

[2020] FWC 3256

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Margaret Schaffer
v
Vidhate Family Trust T/A Malaga Dental Clinic
(U2019/6094)

COMMISSIONER BISSETT MELBOURNE, 23 JUNE 2020

Application for an unfair dismissal remedy.

[1] On 2 June 2019 Mrs Margaret Schaffer (Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). The Applicant advised her employment with Vidhate Family Trust T/A Malaga Dental Clinic (Respondent) was terminated.

[2] After an unsuccessful conciliation conference on 9 August 2019, the matter was listed for Jurisdiction (Small Business Fair Dismissal Code) and Arbitration Conference/Hearing on 12 – 13 November 2019. Directions were issued to the parties for the filing of submissions.

[3] On 9 September 2019 the Respondent’s representative emailed correspondence to the Commission advising that the parties had continued negotiations since the conciliation conference and had reached an in principle settlement agreement.

[4] Later that day the Applicant’s representative emailed correspondence to the Commission confirming that an agreement had been reached subject to the execution of a deed of settlement which they were awaiting from the Respondent’s representative.

[5] On 10 September 2019 the Commission dispatched an amended Notice of Listing to the parties that advised while the Conference/Hearing remained listed, the directions to file submissions were vacated as the Applicant’s representative had advised the parties reached an in principle settlement agreement. That Listing also advised that when a Notice of Discontinuance is filed with the Commission the Conference/Hearing dates will be vacated.

[6] On 28 October 2019 the Commission emailed correspondence to the Applicant’s representative advising that some time had passed since they had advised of the in principle settlement agreement and no Notice of Discontinuance had been filed. The correspondence advised the Notice of Discontinuance was necessary to ensure eligibility for a refund could be assessed and so that the matter could be closed. The Respondent’s representative was carbon copied into this correspondence.

[7] Later that day the Respondent emailed correspondence to the Commission attaching a deed of settlement and release signed by both parties and dated 4 October 2019. The Respondent’s representative also emailed correspondence to the Commission advising that settlement monies had been paid, the Applicant disputes the taxation of the settlement sum and the Respondent was considering the taxation.

[8] On 11 February 2020 the Commission emailed correspondence to the Applicant’s representative requesting they confirm whether the matter was wholly discontinued and advising that the Commission can only accept a discontinuance by the Applicant or their representative. No response was received.

[9] On 12 May 2020 the Commission contact the Applicant’s representative by telephone to enquire about the Notice of Discontinuance. The Applicant’s representative advised that they would file a Notice of Discontinuance with the Commission. No such Notice has been received.

[10] Later that day the Commission emailed correspondence to the Applicant’s representative requesting a Notice of Discontinuance be filed and if no such notice was received within two weeks the matter may be listed for a mention before a Member of the Commission. No reply has been received.

[11] To date, neither the Applicant nor their representative have filed a Notice of Discontinuance with the Commission. Additionally, there has been no correspondence providing an update on the status of this matter nor any assertion that the parties have not reached a binding settlement agreement. In these circumstances, I have decided that attempts to arrange a Mention of the application would be futile.

[12] In the decision of the Federal Court in Australian Postal Corporation v Gorman 1, it was held that if there is a binding agreement in place between the parties, an application for unfair dismissal can be dismissed for having no reasonable prospects of success.

[13] Section 587(1) of the FW Act provides:

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.

[14] In the circumstances I am satisfied that the parties reached a binding agreement regarding the Applicant’s application for unfair dismissal. Accordingly, the application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the FW Act. An Order 2 to this effect will be issued shortly.

COMMISSIONER

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 1 [2011] FCA 975.

 2   PR720382.