Michael Glazier v Queensland Appliances

[2018] FWC 550

[2018] FWC 550

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Glazier
v
Queensland Appliances
(U2017/11995)

COMMISSIONER BISSETT MELBOURNE, 25 JANUARY 2018

Application for an unfair dismissal remedy – application dismissed under s.587 at the Commission’s initiative.

[1] On 10 November 2017, Mr Michael Glazier made an application to the Fair Work Commission (Commission) seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act). Mr Glazier was employed by Queensland Appliances. His employment was terminated on 24 November 2015.

[2] The matter was subject to conciliation on 30 November 2017 before the Commission where the matter was resolved by way of a monetary and non-monetary settlement.

[3] On 18 December 2017 Mr Bob Hall from Queensland Appliances emailed the Commission advising that Queensland Appliances had complied with their requirements under the agreement made on 30 November 2017 however Mr Glazier had not complied with his part of the terms of the agreement. The Respondent stated that Mr Glazier had failed to sign the terms of settlement, failed to return company property and failed to discontinue his application. Accordingly, the Respondent requested that the Commission exercise its discretion to formally close the matter.

[4] On 18 December 2017 the Commission sent an email to Mr Glazier attaching the correspondence from Queensland Appliances. The Commission also attempted to telephone Mr Glazier on 18 December 2017 without success. A voicemail message was left for Mr Glazier requesting that he contact the Commission however he did not return the call.

[5] On 2 January 2018 the Commission wrote to Mr Glazier as follows:

…The Commission’s records show that this matter was settled at a conciliation on Thursday, 30 November 2017. In particular, it appears from the Commission’s file that you reached a settlement agreement with Queensland Appliances, terms of settlement were prepared reflecting this and sent to both parties and the cooling off period that applied to this agreement was waived by both parties. As such, there are a number of indicators of a binding agreement having been reached.

The Deputy President refers the parties to the decision of the Full Bench in Curtis v Darwin City Council [2012] FWAFB 8021 which 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. If your position is that no binding agreement was reached, please outline why.

In light of this, the Deputy President is considering whether he should, on his own motion, dismiss your application under s.587 of the Fair Work Act 2009 because it has no reasonable prospects of success.

Prior to deciding whether he should dismiss this application you are to file and serve, by close of business on Tuesday, 16 January 2018, submissions and any evidence as to why your application should not be dismissed because it has no reasonable prospects of success…

[6] A follow up telephone call was made to Mr Glazier on 16 January 2018 to remind him that his submissions were due to be filed on that day and seeking a return call. Mr Glazier did not return the call.

[7] A further attempt to telephone Mr Glazier was made on 17 January 2018 regarding his failure to file submissions. A voicemail message was left for Mr Glazier seeking a return call. Mr Glazier did not return the call.

[8] 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.

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

COMMISSIONER

 1   PR599852.

Printed by authority of the Commonwealth Government Printer