[2015] FWC 7098 [Note: An appeal pursuant to s.604 (C2015/7192) was lodged against this decision - refer to Full Bench decision dated 10 June 2016 [[2016] FWCFB 3672] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Mohammed Ayaz
v
Transdev NSW South Pty Ltd
(U2013/8689)

DEPUTY PRESIDENT SAMS

SYDNEY, 15 OCTOBER 2015

Unfair dismissal application – agreement to settle the matter – whether agreement binding – no reasonable prospects of success – unreasonable failure to discontinue application after settlement - failure to prosecute in a timely manner – application dismissed.

[1] This decision will determine an application made by Transdev NSW South Pty Ltd (Transdev), formerly Veolia Transport NSW Pty Ltd (‘Veolia’), pursuant to s 587 of the Fair Work Act 2009 (the ‘Act’) for the dismissal of an unfair dismissal application made by Mr Mohammed Ayaz (the ‘applicant’). The applicant was employed by Veolia as a Bus Driver from December 2006, until his dismissal on 8 April 2013. He lodged an application for an unfair dismissal remedy with the Fair Work Commission (the ‘Commission’) on 17 April 2013. A telephone conciliation of the matter on 22 May 2013 proved unsuccessful and directions were issued for the matter to be determined by the Commission by way of a hearing on 9, 10 and 11 August 2013.

[2] However, on 5 August 2013, the Commission received an email from Mr Adam Guy, a Legal Officer of the Transport Workers’ Union of Australia (TWU) and the applicant’s then representative, which was expressed as follows:

‘I refer to the above matter in which directions have been set down for the filing of the Applicant’s evidence and submissions by noon today (5 August 2013).

Since directions have been issues, the parties have come to an in principle settlement agreement which we anticipate will be finalised shortly.

Accordingly, we kindly ask that the directions for the above matter be vacated pending the settlement and discontinuance of the matter.

The Respondent’s representative has been copied in by way of notice of this correspondence.

[3] The Commission’s file reflects that the applicant made contact with the Commission after that time (which I will discuss later). However, it was not until 15 December 2014 that the applicant wrote to the Commission, in response to a request for the filing of a notice of discontinuance sent on 5 December 2014. The applicant’s email is in the following terms:

‘Thank you for you’r email, receiving after such a long time from the office of the fwc.
Please note that I do not have any intention to give up and/or withdraw my application at all and still looking forward to be heard by the authorities, welfare organisations and public media about the role these people playing with help of trade union officials and I make all of them to be responsible of what unfairly happening in the industries. Majority of employees are insecure to raise their voice…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FWCFB 3672
Decision Date: 10 June 2016

CaseChat Overview and Summary

In the matter of Mohammed Ayaz v Transdev NSW South Pty Ltd, the Federal Circuit and Family Court of Australia was presented with a case concerning the dismissal of an employee and the subsequent application for unfair dismissal. The applicant, Mr Ayaz, had been dismissed by his employer, Transdev NSW South Pty Ltd, and subsequently lodged an application for unfair dismissal. After the parties entered into a settlement agreement, Mr Ayaz continued to pursue the unfair dismissal application, prompting Transdev to apply for the dismissal of the application.

The primary legal issue before the court was whether the settlement agreement was binding and if the applicant's continuation of the unfair dismissal application was unreasonable, particularly given the lack of reasonable prospects of success. The court was also required to consider whether Mr Ayaz's failure to prosecute the application in a timely manner constituted an unreasonable failure to discontinue the application after the settlement.

The court found that the settlement agreement was binding, and Mr Ayaz's continued pursuit of the unfair dismissal application was unreasonable, especially considering the absence of reasonable prospects of success. The court held that Mr Ayaz's persistence in pursuing the application, despite the settlement, was not in the interests of justice. Furthermore, the court noted that Mr Ayaz had failed to prosecute the application in a timely manner, which contributed to the unreasonableness of his actions. Consequently, the court dismissed the unfair dismissal application. The court's decision underscores the importance of adhering to settlement agreements and the consequences of unreasonably persisting with legal proceedings after a settlement has been reached.

Orders