Marina Papagelou v Haughton Stotts Pty Ltd

[2020] FWC 2382

[2020] FWC 2382

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marina Papagelou
v
Haughton Stotts Pty Ltd
(U2019/14246)

COMMISSIONER BISSETT MELBOURNE, 7 MAY 2020

Application for an unfair dismissal remedy.

[1] On 18 December 2019 Mrs Marina Papagelou (Applicant) made an application to the Fair Work Commission seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act). The Applicant advised she was employed by Haughton Stotts Pty Ltd (Respondent).

[2] The matter was listed for conciliation on 31 January 2020. The matter did not settle at conciliation however, parties continued settlement discussions.

[3] On 14 February 2020 the Commission conciliator emailed correspondence to the parties advising that the conciliator understood that the parties had reached a settlement agreement. The correspondence attached a template terms of settlement to assist the parties.

[4] On 2 April 2020 the Applicant emailed correspondence to the Commission advising that the settlement had collapsed. The Applicant requested that the matter be relisted.

[5] On 6 April 2020 the Respondent contacted the Commission by telephone and advised that the settlement had collapsed. The Commission advised that the matter would be reviewed by a Member of the Commission who would advise of the next steps.

[6] On 9 April 2020 the Commission emailed correspondence to the Applicant advising that:

…the Commissioner is considering whether she should, of her own motion, dismiss Mrs Papagelou’s application under s.587 of the Fair Work Act 2009 because it has no reasonable prospects of success.

The Commissioner is considering this course of action having regard to the decision of the Full Bench of Fair Work Australia in Curtis v Darwin City Council[2012] FWAFB 8021. In that case, the Full Bench referred to the decision of the Federal Court in Australian Postal Corporation v Gorman [2001] FCA 975, which is authority for the proposition that if there is a binding agreement between parties to an unfair dismissal application then the application has no reasonable prospects of success and may be dismissed.

[7] Submissions were sought from the Applicant and the Respondent as to whether there was a binding agreement reached between the parties and, if so, why the application for unfair dismissal should not be dismissed on the grounds that it had no reasonable prospect of success.

[8] On 17 April 2020 the Applicant filed with the Commission and served on the Applicant submissions as to why the application should proceed in the Commission. The Applicant submitted that after the Commission’s correspondence on 14 February 2020, the parties had exchanged email correspondence on 21 and 22 February 2020 in relation to disagreement on an additional term the Respondent wished to be included in the settlement. The Applicant provided the Commission with that email correspondence. The Applicant also provided a copy of the unsigned terms of settlement provided by the Commission on 14 February 2020.

[9] On 24 April 2020 the Respondent filed their submissions with the Commission and served them on the Applicant. The Respondent advised that “there was not a binding settlement agreement reached on this matter”.

[10] While it appears that discussions were fruitful between the parties in relation to a settlement of the matter, both parties agree that the settlement did not come to fruition. Neither party has submitted that a binding settlement agreement had been reached in this matter.

[11] In these circumstances, I am satisfied that there is no binding settlement agreement between the parties. Accordingly, the unfair dismissal application will be referred for future programming. The parties will be advised of the next steps in due course.

COMMISSIONER

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