Mr Keith Maguire v Tradelink Pty Limited

[2024] FWC 353

[2024] FWC 353

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Keith Maguire
v

Tradelink Pty Limited

(U2023/10001)

COMMISSIONER DURHAM BRISBANE, 8 FEBRUARY 2024

Application for an unfair dismissal remedy - application dismissed under s.587

1. On 12 October 2023, Mr Keith Maguire (Mr Maguire/the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, alleging he was unfairly dismissed from his employment with Tradelink Pty Limited (the Respondent).

1. I listed the matter for a case management conference/directions hearing by telephone on 13 December 2023.

1. On 13 December 2023, Mr Maguire participated in the conference with his representative Miss Avanya Dehaloo from Employee Dismissals, while Ms Carolyn McKibbon and Ms Alison Frances appeared on behalf of the Respondent. During the conference a resolution was reached between the parties with the parties to liaise with each other to finalise and execute a deed of settlement. I note that it was agreed that once the deed had been complied with, Mr Maguire would discontinue the matter.

1. On 12 January 2024, my Associate sent the following correspondence to the parties, including Mr Maguire’s representative:

“Dear parties,

Reference is made to the above matter and the conference held on 13 December 2023.

Further to the resolution reached during the conference, the parties are asked to please provide an update regarding the matter by no later than close of business Wednesday, 17 January 2024.”

No response was received from either party.

1. On 18 January 2024, my Associate attempted to call Mr Maguire multiple times by telephone, however the calls appeared to not go through or connect, and as such no voice mail was left.

1. On the same day, my Chambers received the following email from Mr Maguire:

“I apologise for the late reply to your request.  I have had an issue communicating with Employee Dismissals. The issue being they have not to date contacted me except for one email requesting my bank details. (I can only assume they received the settlement). This was on 09/01/2024. I have not been informed by them if they have replied to this email. If they have responded I was not included in the email.

I have received a payslip and Statement of Service from Tradelink.

At this point I cannot confirm receipt of settlement amount as representatives of Employee Dismissals have not been in touch with me to verify receipt of settlement payment nor have they forwarded payment to me.

I have tried to contact them by email (all emails are available on request) and by telephone.  I booked a teleconference with them but they did not ring. Originally they had an incorrect phone number but that was sorted before Settlement discussions last year.  There was no issue contacting me for Settlement proceedings.

Tradelink sent me something as proof of settlement paid but i cannot open it.

I am frustrated to say the least and I do not know what to do from here.”

1. On 19 January 2024, my Associate sent the following correspondence to the parties, including Mr Maguire’s representative:

“Dear parties,

Reference is made to the above matter and the Applicant’s previous email below.

The Commissioner asks that the parties provide a copy of the deed of settlement, including proof of settlement paid to the Applicant.

Furthermore, an update is requested from all parties, in particular the Applicant’s representative (Employee Dismissals) by close of business today, 19 January 2024.

Parties are reminded to ensure that they copy in all parties to emails sent to Chambers.”

1. On the same day, my Chambers received the following email from the Respondent:

“Dear Associate to Commissioner Durham

Please see attached deed signed by both parties.

With respect to the proof of settlement, the payslip is attached, however, we do not have a banking receipt.  Our payroll team provided the below exert from the a report which provides the data for what was sent to the bank.  They have also advised that the amount is the after tax amount that is represented on Mr Maguire’s pay slip.”

1. On 29 January 2024, my Associate wrote to the parties, noting that as the Commission was not involved with the drafting of the deed, it appears that payment was to be made directly to Employee Dismissals rather than Mr Maguire. Based on the documentation provided by the Respondent, it was apparent that payment of the settlement sum was made in accordance with this requirement and thus the deed had been complied with. I noted that unfortunately due to Employee Dismissals being considered as paid agents, they were not subject to stringent regulations and codes of conduct in comparison to other representatives such as registered organisation and lawyers. I noted that the issue appears to be a civil matter between Mr Maguire and Employee Dismissals. I provided Mr Maguire with information regarding the Australian Competition and Consumer Commission by way of a link to their website. I subsequently invited Mr Maguire to discontinue his application as agreed upon during the conference and pursuant to the deed of settlement, noting I may dismiss the application given that the matter was resolved from the Commission’s perspective between Mr Maguire and the Respondent by way of compliance with the deed of settlement as agreed to and signed by the parties.

1. On 8 February 2024, my Associate attempted to call Mr Maguire by telephone at 9:44am, however the call appeared to not go through or connect, and as such no voice mail was left.

1. To date, no correspondence or telephone contact has been received from Mr Maguire. Noting it is not appropriate for the Commission to hold open matters that have settled, with the expectation that parties comply with their settlement obligations.

1. Section 587 of the Act provides as follows:

“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.

Note:   For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2)       Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a)       is frivolous or vexatious; or

(b)       has no reasonable prospects of success.

(3)       The FWC may dismiss an application:

(a)       on its own initiative; or

(b)       on application.”

1. Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

1. I note that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so.[1] Such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form relief from a beneficial statutory provision.[2]

1. Noting that section 587(1)(c) provides that the Commission may dismiss an application that has no reasonable prospects of success and that the Commission may do so on its own initiative under section 587(3), I am satisfied that the settlement between the parties in this matter was reached during the conference and was finalised by way of the fully executed deed of settlement. Mr Maguire in signing the deed, and the Respondent complying with said deed, he has released the Respondent from any liability connected to his employment. He had also agreed to discontinue his application once payment was received in the nominated bank account, being Employee Dismissals.

1. As the Commission may have regard to such a settlement in considering whether to dismiss an application under section 587 of the Act, in these circumstances, I am persuaded that I should exercise my discretion under section 587 of the Act and dismiss the Applicant’s application in light of the settlement agreement, as Mr Maguire has no reasonable prospects of success section pursuant to section 587(3)(a) of the Act.

1. An order to that effect will issue with this decision.

COMMISSIONER

[1] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8].

[2] Nick Williams v Sydney Gay & Lesbian Business Association [2019] FWC 4399 at [12].

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