Mr Scott Cook v Brooklyn Square Pty Ltd T/A Ultra Lifestyle Homes
[2025] FWC 540
•21 FEBRUARY 2025
| [2025] FWC 540 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Scott Cook
v
Brooklyn Square Pty Ltd T/A Ultra Lifestyle Homes
(U2024/13135)
| COMMISSIONER DURHAM | BRISBANE, 21 FEBRUARY 2025 |
Application for an unfair dismissal remedy – application dismissed under s.587
On 3 November 2024, Mr Scott Cook (Mr Cook/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 Brooklyn Square Pty Ltd T/A Ultra Lifestyle Homes (the Respondent).
I listed the matter for a case management conference/directions hearing by Microsoft Teams on 9 December 2024.
On 9 December 2024, Mr Cook participated in the conference for himself, while Mr Peter Nastrom (Managing Director) appeared on behalf of the Respondent. During the conference a resolution was reached between the parties. My Chambers drafted a deed of settlement (the Deed) and provided this to the parties on 9 December 2024 for execution. I note that it was agreed that once the deed had been complied with, Mr Cook would discontinue the matter.
On 10 December 2024, Mr Cook provided a signed copy of the Deed to my Chambers. On 16 December 2024, Mr Nastrom provided a signed copy of the Deed to my Chambers on behalf of the Respondent.
On 8 January 2025, my Associate sent the following email to the parties:
“Dear parties,
Reference is made to the above matter and the resolution reached.
The parties are asked to please provide an update by close of business Monday, 13 January 2025.
If the Respondent has complied with the deed, the Applicant is asked to confirm their discontinuance in order for the matter to be closed.”
On the same day, my Chambers received an out of office email from Mr Nastrom advising he was on leave until 13 January 2025.
On 15 January 2025, after receiving no further correspondence from either party, my Associate sent the following email:
“Dear parties,
Reference is made to the above matter and previous email below.
Neither party has provided an update by 13 January 2025.
Both parties are requested to provide an update by no later than close of business today, 15 January 2025.”
On the same day, Mr Nastrom replied with the following:
“I can confirm we made payment in full in accordance with the agreement and believe the matter is now closed.”
On the same day, my Associate sent the following email to Mr Cook:
“Dear Mr Cook,
Reference is made to the above matter and the previous email below.
If the Respondent has complied with the deed, please confirm you wish to discontinue the matter in order for the matter to be closed.”
On the same day, Mr Cook responded to the above email with the following:
“Hi ,
Sorry I’ve been oversea (sic) since the 25/12/2024 until today returning 15/1/25 home
Please see attached pay slip with a deduction of $523.66 can this please be explain (sic) prior to any finalisation of this matter this is not tax related
And no references then other deductions
This doesn’t look like it follows the agreement.”
On the same day, Mr Cook sent an additional email stating:
“Dear Commissioner Durham,
I've have been overseas from 25/12/24 to 15/1/25 returning today I’ve have (sic) sent an email related to the payment made and have question to a deduction of $523.66 in it with no explanation
Which I’ve attached apay (sic) slip
Also to date the Q leave statement has not been adjusted to last day employed with Brooklyn square
As to my superannuation please provide details of this transaction as it has not showed in my statement of this been completed to date
Pls see relevant documents in attached photos
Once all is completed and resolved then I will finalise this matter.”
On the same day, my Associate sent the following email:
“Dear parties,
Reference is made to the above matter and the Applicant’s previous email below.
Mr Nastrom is asked to please provide a response and further clarification regarding Mr Cook’s queries.”
On the same day, Mr Nastrom replied with the following:
“Dear Commissioner,
Please refer to below detailed response to Mr Cook’s queries.
1.Payment
As per my previous email, there is no deduction except PAYG tax withheld.
2.Qleave
Qleave annual return is due for lodgement on 31 July 2025 for year ending 30 June 2025. We will lodge the annual return, including Mr Cook’s service period, after 30 June 2025 and before the due date in accordance with the legislation.
3.Superannuation
Superannuation for the period of 1 October 2024 to 31 December 2024 is not due until 28 January 2025. We will make the payment before the due date in accordance with the legislation.
We confirm that we will fulfill our obligations in accordance with the legislation.”
On 21 January 2025, after receiving no further correspondence from Mr Cook, my Associate sent the following email:
“Dear Mr Cook,
Reference is made to the above matter and the Respondent’s previous email below.
Please advise whether you (sic) queries have been addressed, and if so, please confirm discontinuance in order for the matter to be closed.”
On 28 January 2025, after receiving no further correspondence from Mr Cook, my Associate sent the following email:
“Dear Mr Cook,
Reference is made to the above matter and previous email below.
Chambers did not receive a response from you. Please provide a response by close of business today, 28 January 2025.”
On 29 January 2025, after receiving no further response from Mr Cook, my Associate attempted to call Mr Cook by telephone, however the call went unanswered, and a voice mail was left requesting Mr Cook respond to the emails sent to him from Chambers.
Later that same day, after receiving no response from Mr Cook, my Associate sent the following:
“Dear Parties,
Reference is made to the above matter and previous emails below.
Chambers notes it has not received a response from the Applicant. Chambers has attempted to contact the Applicant via telephone today – a voice mail has been left.
As it appears that the Respondent has complied with the deed, the Applicant is asked to advise of discontinuance in compliance with the deed.
Please note that in the event the Applicant does not provide a response or discontinues their application, the Commissioner may move to dismiss the application given that the matter was resolved and compliance of the deed has been met, apart from discontinuance.
The Federal Court of Australia has considered that the Commission has the power to dismiss an unfair dismissal application under s.587 where a binding settlement agreement exists. That is because the binding settlement agreement extinguishes the pre-existing cause of action and the continued pursuit of the application based on such cause of action is clearly capable of being considered to be frivolous or vexatious or without reasonable prospects of success. Please note: Australia Postal Corporation v Gorman [2011] FCA 975; 196 FCR 126 at [31] per Besanko J
If the Parties wish to write further on the above matter, they may do so by close of business Thursday, 30 January 2025. If the Applicant wishes to discontinue the matter in light of the above, please inform Chambers and the matter will be closed.”
On 7 February 2025, my Associate sent the following email to parties:
“Dear parties,
Reference is made to the above matter and the previous email below.
Mr Nastrom is asked to please provide any material that evidences compliance with the deed.
Once this has been provided and it is clear that the Respondent has complied with the deed, the matter will be closed. If the Applicant has any objections they are to advise as soon as possible.
Please provide the above by close of business Monday, 10 February 2025.”
On 8 February 2025, Mr Cook replied to the above email with the following:
“Dear Commissioner Durham,
Happy to closed (sic) this once all items are completed
And evidence is supply for all item to comply with the agreement
Thanks “
I note that Mr Cook has not responded to any communications from my Chambers since 21 January 2025, and did not provide any response to Mr Nastrom’s email of 15 January 2025 regarding the Respondent’s compliance.
On 11 February 2025, after receiving no response from Mr Nastrom, my Associate sent the following email:
“Dear Mr Nastrom,
Reference is made to the above matter and the previous emails below, in particular the email from Chambers sent on 7 February 2025.
You were to provide any material that evidences compliance with the deed by Monday, 10 February 2025 in order for the matter to be finalised and closed
Please advise by 4:00pm today, 11 February 2025 why the above was not provided.’
On 12 February 2025, after receiving no further response from Mr Nastrom, my Associate attempted to call Mr Nastrom by telephone, however the call went unanswered, and a voice mail was left requesting Mr Nastrom respond to the emails sent to him from Chambers.
On the same day, my Associate sent the following email to Mr Cook:
“Dear Mr Cook,
Reference is made to the above matter and the attached emails and the voice mail left on your mobile phone on 29 January 2025.
It is noted the Respondent provided a response to your queries on 15 January 2025 (attached), it is noted that you never provided a response whether this addressed your queries. The response appears to confirm that the Respondent has complied with the deed.
Please confirm your discontinuance if this does address your queries. Unless you can clearly confirm that the Respondent has not complied with the deed, this matter may be dismissed given that the matter was resolved and compliance of the deed has been met, apart from discontinuance.
Please advise by no later than 4:00pm, Friday 14 February 2025.”
On 14 February 2025, Mr Nastrom emailed my Chambers with the following:
“Dear Commissioner
Please see attached confirmation of compliance with agreement regarding super contribution.”
I note the attachments contained within the email appear to be screenshots of superannuation payments made to Mr Cook.
On 17 February 2025, after receiving no response from Mr Cook, my Associate sent the following email:
“Dear Mr Cook,
Reference is made to Mr Nastrom’s previous email below containing the attached.
As it appears the Respondent has complied with the deed (unless you believe otherwise), please confirm discontinuance in order for this matter to be closed.
Chambers further notes its email sent to you on 12 February 2025, where you have not provided a response. Please advise regarding this email and Mr Nastorm’s email by close of business today, 17 February 2025.
This matter may be dismissed given that the matter was resolved and compliance of the deed appears to have been met, apart from your discontinuance.”
To date, Mr Scott has not provided any response nor complied with the Deed, 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.
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, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.
Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.
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]
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 Cook 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 alternative, if Mr Cook believes compliance has not been met, he has a means to enforce the Respondent’s compliance by way of the Deed in the appropriate jurisdiction.
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 Cook has no reasonable prospects of success section pursuant to section 587(3)(a) of the Act.
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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