Matthew Pickering v Woolworths Group Limited

[2019] FWC 8390

[2019] FWC 8390

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Pickering
v
Woolworths Group Limited
(U2019/2788)

COMMISSIONER BISSETT MELBOURNE, 16 DECEMBER 2019

Application for an unfair dismissal remedy.

[1] On 13 March 2019, Mr Matthew Pickering (Applicant) made an application to the Fair Work Commission (Commission) for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The matter was listed for conciliation on 12 April 2019. However the conciliation did not proceed as the Applicant’s representative emailed correspondence to the Commission on 12 April 2019 advising that the Applicant wished to proceed directly to arbitration for his unfair dismissal claim.

[3] On 15 April 2019 directions were issued to the parties and the matter was listed for Arbitration Conference/Hearing on 19 – 21 June 2019.

[4] On 6 May 2019 the Applicant’s representative telephoned the Commission to advise that the matter had settled in principle and that they would be emailing correspondence to the Commission shortly to confirm this and request that the directions set for filing materials be vacated.

[5] Later that day the Applicant’s representative emailed correspondence to the Commission advising that the parties had participated in without prejudice discussions and have reached agreement in-principle subject to the execution of a deed. The Applicant’s representative requested that the directions be vacated pending finalisation of the agreement and filing in due course by the Applicant of a Form F50 Notice of Discontinuance (Notice of Discontinuance).

[6] The Commission issued an amended Notice of Listing confirming that the Applicant’s representative had advised that the parties have reached an in-principle agreement. The directions to file material were vacated however the Arbitration Conference/Hearing remained listed. The Notice of Listing advised that upon receipt of a Notice of Discontinuance, the Conference/Hearing dates would be vacated. The Notice of Listing was emailed to the Applicant’s representative and the Respondent. It was also sent to the Applicant’s nominated email address however the Commission received an undeliverable notification (as it did for all Notices of Listing sent to the Applicant’s nominated email address).

[7] On 13 June 2019 the Commission emailed correspondence to the Applicant’s representative following up on the filing of a Notice of Discontinuance. The correspondence advised this was necessary to ensure eligibility for a refund could be assessed, and so that the matter could be closed.

[8] On 14 June 2019, as no response was received, an amended Notice of Listing was issued to the Applicant’s representative and the Respondent advising that the Conference/Hearing listed for 19 – 21 June 2019 had been cancelled. The Notice of Listing advised that the matter would be held open pending the receipt of a Notice of Discontinuance.

[9] On 30 August 2019 the Commission emailed correspondence to the Applicant’s representative following up on the filing of a Notice of Discontinuance. The correspondence again requested the Applicant’s representative file a Notice of Discontinuance to enable the file to be closed.

[10] On 3 September 2019 email correspondence was received by the Commission from the Applicant’s representative’s administration email address. The email correspondence did not contain a signature or sign-off, thus it is unclear who sent the correspondence. The correspondence advised that a Notice of Discontinuance would be filed as soon as possible.

[11] On 7 October 2019 the Commission emailed correspondence to the Applicant’s representative following up on the filing of a Notice of Discontinuance.

[12] On 25 November 2019 the Commission emailed correspondence to the Applicant’s representative requesting that a Notice of Discontinuance be filed with the Commission. The correspondence advised that if a Notice of Discontinuance was not filed within two weeks, the matter may be listed for a Mention before a Member of the Commission.

[13] On 6 December 2019 the Commission attempted to contact the Applicant’s representative. A voicemail message was left requesting a return call to advise on the status of this matter.

[14] Later that day, the Commission attempted to contact the Applicant on his nominated telephone number. A voicemail message was left requesting a return call to advise on the status of this matter.

[15] 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, and it has not been possible to contact the Applicant or their representative. In these circumstances, I have decided that attempts to arrange a Mention of the application would be futile.

[16] 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.

[17] 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.

[18] 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   PR715066.