Michael Keskic v Amcor Packaging (Australia) Pty Ltd T/A Amcor Flexibles Moorabbin

[2013] FWC 8883

[2013] FWC 8883

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Keskic
v
Amcor Packaging (Australia) Pty Ltd T/A Amcor Flexibles Moorabbin
(U2013/8559)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 12 NOVEMBER 2013

Application for relief from unfair dismissal dismissed.

[1] On 15 April 2013, Mr Michael Keskic made an application for remedy for unfair dismissal remedy under s.394 of the Fair Work Act 2009. Mr Keskic’s employment had been terminated by Amcor Packaging (Australia) Pty Ltd T/A Amcor Flexibles Moorabbin (Amcor) on 25 March 2013.

[2] The matter was the subject of conciliation however, the matter was not resolved.

[3] On 26 August 2013, Amcor filed an application for Mr Keskic’s application to be dismissed under s.399A of the Act for the following reasons:

a) Mr Keskic advised Amcor that “he intended to withdraw his application”; and

b) Mr Keskic advised the Fair Work Commission (the Commission) that “he intended to withdraw his application...[and] a notice of discontinuance...has not been filed”.

[4] Section 399A of the 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.

[5] Taking into account the provisions of s.399A of the Act, I am not satisfied that Mr Keskic’s application can be dismissed under this section. Therefore, I dismiss Amcor’s application.

[6] Having regard to the history of the matter, I note that Mr Keskic advised the Commission on 10 July 2013 that he wished to discontinue his application. Mr Keskic was reminded of his obligations to file a notice of discontinuance and a copy was forwarded to him with a reply paid envelope.

[7] On 4 September 2013, correspondence was sent to Mr Keskic requesting that he confirm in writing whether he intended to discontinue his application with the Commission. This correspondence also enclosed another notice of discontinuance. Mr Keskic was asked to provide his response by 11 September 2013.

[8] The Commission has not received any written advice from Mr Keskic.

[9] Having regard to the material before me, I am satisfied that given Mr Keskic’s advice, that he no longer wanted to prosecute his application and his failure to respond to the Commission’s correspondence of 4 September 2013, he intended to discontinue his application but has not filed a Form F50.

[10] Section 588 of the Act provides:

588 Discontinuing applications

A person who has applied to the FWC may discontinue the application:

(a) in accordance with the procedural rules (if any); and

(b) whether or not the matter has been settled.

[11] Rule 4 of the Fair Work Rules 2010 provides that the Commission may dispense with compliance with the Rules. I have decided to waive compliance with the requirement that Mr Keskic file and serve a Form F50 as I am satisfied that Mr Keskic has discontinued his application.

[12] The application is therefore, discontinued.

DEPUTY PRESIDENT

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