Mrs Rina Centofanti v Transfield Services T/A Light City Buses
[2018] FWC 755
•6 FEBRUARY 2018
| [2018] FWC 755 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Mrs Rina Centofanti
v
Transfield Services T/A Light City Buses
(U2013/9080)
DEPUTY PRESIDENT ANDERSON | ADELAIDE, 6 FEBRUARY 2018 |
Application for relief from unfair dismissal – request for reopening of closed Commission file – whether settlement agreement reached at conciliation proceedings in 2013 – principles applicable to settlement agreements – principles applicable to reactivating stale matters – no reasonable prospects of success – whether proceedings frivolous or vexatious - prejudice to administration of justice – sections 587 and 589 Fair Work Act 2009 – application dismissed
[1] This decision concerns a request made on 13 December 2017 by an applicant to an unfair dismissal matter to have that matter (U2013/9080) re-listed notwithstanding the Fair Work Commission (Commission) having closed its file on 30 May 2013, that is, four and a half years earlier.
Background
[2] Rina Centofanti (Mrs Centofanti) made an unfair dismissal application dated 30 April 2013 to the Commission under section 394 of the Fair Work Act 2009 (FW Act) on 1 May 2013. She was represented by the Transport Workers Union (TWU). The claim was made against Transfield Services trading as Light City Buses (Transfield). Transfield is now operated by Broadspectrum (Australia) Pty Ltd (Broadspectrum).
[3] On 14 May 2013 Mrs Centofanti was advised in writing by the Commission that the application had been referred to a Commission-appointed conciliator for a telephone conciliation conference. The letter included the following:
“If at any time you and Transfield Services T/A Light City Buses resolve your application or you decide to discontinue your application, you must advise the Commission.”1
[4] On 16 May 2013 Transfield filed a response to the application. It contested the unfair dismissal application. However, Transfield agreed to participate in the conciliation.
[5] The conciliation was conducted by Conciliator Cashen at 11.15am on 30 May 2013. The Commission’s file records the following being sent by Conciliator Cashen to Mr Ian Gonsalves of the TWU and to Ms Alex Howieson of Transfield by email at 1.24pm on Thursday 30 May 2013:
“Dear Ian/Rina and Alex/Graham/Amber (Applicant and Respondent)
Thank you for your participation in the conciliation U2013/9080 - Centofanti, Rina v Transfield Services T/A Light City Buses held 29/5/13 during which the parties agreed to settle this application. I attach the terms of settlement.
As this is an agreement reached between the parties, you must send your signed terms to the other party. Do not send a copy to the Fair Work Commission (the Commission) as we do not keep any record of your agreement.
The Applicant will need to file a Form F50 “Notice of Discontinuance” (see with the Commission when the agreed terms have been complied with. The Applicant must send a copy of the Form F50 to the Respondent. The Commission will refund the application fee, if applicable, within four to six weeks of receipt of the Form F50.
To assist the Commission in monitoring our unfair dismissal applications’ process we would appreciate if you could please take the time to complete this short form and provide us with your valuable feedback regarding your experiences during this process. All feedback is confidential, with no parties identified during the process.
Please select the following link to complete the form.
concludes my involvement in the process. If any queries arise about implementing the terms of settlement please contact the other party directly.
Yours faithfully
Catherine Cashen
Conciliator”
[6] The Commission’s electronic case history records an entry at 1.24pm on 30 May 2013 as follows: “Result: Settled: Monetary C: no cooling off period settlement email sent”.
[7] The Commission’s electronic case history records the file as “Closed: Archive Internally” at 1.26pm on 30 May 2013.
[8] There is no record on the Commission’s hard copy or electronic history (CMS) file of any further communication to or from any party to the matter. No Notice of Discontinuance was filed.
[9] The matter remained dormant on the closed Commission file for the following four years and seventy-seven days.
The Request for Re-Listing
[10] On 15 August 2017 the Commission received an email from Mrs Centofanti in the following terms:
“Subject: Re: unpaid wages
I sent the original email to the wrong department: here is the email again to you and copy below from the wrong dept.
Hi,
I had an arbitration over the telephone with my work and union a few years ago now. It was agreed by the Union and Ex-work place to pay me 8 weeks at $1250 per week. I have tried a number of times to get my money but get the run around with the union who say they have not (sic) records. Can you please help me and what I can do please? thanks
Rina”
[11] This email to the Commission attached an on-line feedback form that had been sent by Mrs Centofanti to the South Australian Employment Tribunal on 12 August 2017 at 10.38am in which Mrs Centofanti said as follows:
“Hi, I had an arbitration with my work and union a few years ago now. It was agreed by the Union and Ex-work place to pay me 8 weeks at $1250 per week. I have tried a number of times to get my money but get the run around with the union who say they have not (sic) records. Can you please help me and what I can do please? Thanks”
[12] It also attached an emailed reply sent to Mrs Centofanti by the South Australian Employment Tribunal at 10.36am on 15 August 2017 as follows:
“Rina,
Are you referring to a workers compensation dispute that was arbitrated? If so I can provide you with a copy of the orders made. But if you are referring to a wages claim not related to workers compensation then I can’t find any records for that. If you are referring to an unfair dismissal case then I presume that case would have been lodged with the federal Fair Work Commission (T: 8308 9864 or E: [email protected]).
Please ring to discuss, or email me, if I can assist you further.
Peter Kinne
Senior Operations Officer”
[13] On 17 August 2017 the Adelaide Registry of the Commission sent the following email to Mrs Centofanti:
“Good afternoon,
The Fair Work Commission received an unfair dismissal application from you on 1 May 2013.
Your matter was allocated the following case number: U2013/9080.
This matter was settled after conciliation on 30 May 2013.
For information about enforcing a decision or order, please see the following link to the Fair Work Commission’s website:
particular, please note the information regarding Terms of Settlement:
A Terms of Settlement is a document signed by two parties agreeing to a settlement, and is usually obtained during a conciliation process with the Commission or through mediation at the Fair Work Ombudsman. For information on enforcing a Terms of Settlement document you may need to seek legal advice.
For further advice about enforcing the Terms of Settlement you should contact your representative, Mr Ian Gonsalves of Transport Workers Union on 0401 147 244 or [email protected].
For contact details of the Transport Workers Union-SA Branch please see the following link:
note the Fair Work Commission does not provide legal advice. For legal advice you may wish to contact the Working Women’s Centre SA on 1800 652 697 or visit their website:
see the following link for the National Association of Community Legal Centres that may offer you assistance if required:
Adelaide Registry
Fair Work Commission”
[14] Mrs Centofanti replied by email on 25 September 2017 at 7.11pm as follows:
“Thank you but I still haven’t gotten my money and the Union is giving me the run around.
It was agreed by Alex Howison (sic) and Mr Ian Gonsalves that I would receive 8 weeks at $1250 per week as I didn’t agree with the original offer as I was earning over $1300 per week. Ian talked to Alex and the agreement was made.
I cannot get an answer out of the Union as Ian is no longer there.
I shouldn’t have to wait 4 years for my money. I have been trying on and off for my money since June 2013.
thanks
Rina”
[15] The Adelaide Registry of the Commission replied on 27 September 2017 at 11.49am as follows:
“Good morning,
Please refer to the information sent to you by email on 17 August 2017.
Thanks.
Adelaide Registry
Fair Work Commission”
[16] The Commission was next informed of the matter two months sixteen days later on 13 December 2017 when Mr Edward Lawrie of the TWU emailed the Commission at 9.35am in the following terms:
“Subject: U2013/9080 Centofanti v Transfield
Dear Registrar
I write in relation to the subject matter number and on behalf of the Applicant Ms Centofanti.
It has been brought to the attention of parties that the matter has not been resolved.
Accordingly, the Applicant requests that the matter be listed for directions hearing so that the parties may be provided guidance moving forward.
The Respondents representative has been CC’d for service purposes.
Please feel free to call me directly if necessary.
Kind Regards,
Edward Lawrie
Branch Assistant Secretary”
[17] The Adelaide Registry then brought the matter to my attention as the senior Commission member based in South Australia.
[18] At my direction, my Associate wrote to the TWU (copied to Ms Centofanti and to Mr Costi of Broadspectrum) on 22 December 2017 in the following terms:
“Dear Mr Lawrie,
I refer to your email dated 13 December 2017 addressed to the Fair Work Commission’s (the Commission) Adelaide Registry. This matter has been referred to Deputy President Anderson.
We understand Ms Centofanti (the Applicant) wishes to have her unfair dismissal application dated 30 April 2013 re-listed for a Directions hearing. Our records show that this matter was settled at a conciliation conducted by the Commission on Thursday, 30 May 2013. A letter to that effect was provided by email to the parties on the same day (copy attached).
In light of this, the Deputy President is considering whether he should, of his own motion, dismiss Ms Centofanti’s application under section 587 of the Fair Work Act 2009 because it has no reasonable prospects of success, or whether there is an arguable case warranting the re-listing of the matter despite the considerable effluxion of time.
He refers the parties to the decision of the Full Bench of the Commission 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.
Prior to deciding whether he should dismiss this application or re-list it for directions, the following is requested.
The Applicant is to file and serve on the Commission and Transfield Services T/A Light City Buses by close of business on Monday, 8 January 2018 submissions and evidence as to why her application should not be dismissed because it has no reasonable prospects of success, or alternatively, why it should be re-listed after the effluxion of such a considerable period of time.
Should the Deputy President consider the Applicant to have an arguable case that her application should not be dismissed on this basis then Transfield Services T/A Light City Buses will be given an opportunity to make submissions on these questions.
If on the material filed by the Applicant there is no arguable case, the application will be dealt with on the material before the Commission, without any further proceeding.
Please note that at this stage the matter has simply been referred to Deputy President Anderson by the Adelaide Registry. The Commission file has not been re-opened and the matter has not been formally re-allocated to a Member.
Yours sincerely,
Deanna Pignone
Associate to Deputy President Anderson”
[19] On 8 January 2018 the TWU filed submissions on the merits and effluxion of time.
[20] At my direction, my Associate wrote to Broadspectrum (copied to Mr Lawrie and Ms Centofanti) on 9 January 2018 in the following terms:
“Dear Mr Costi,
The Fair Work Commission (the Commission) received an email on 13 December 2017 from the Transport Workers’ Union (SA and NT Branch) on behalf of a former member Ms Rina Centofanti seeking the relisting of an unfair dismissal application made by Ms Centofanti in 2013.
A copy of the email of 13 December 2017 and the original application by Ms Centofanti dated 30 April 2013, as extracted from the Commission’s records, is attached.
On instructions from Deputy President Anderson, I wrote to the Transport Workers’ Union on 22 December 2017 requesting the filing of written submissions and evidence by 8 January 2018 as to why Ms Centofanti’s application should not be dismissed because it has no reasonable prospects of success or alternatively why it should be re-listed after the effluxion of such a considerable period of time. A copy of that letter, which was forwarded to the Respondent employer, is also attached.
On 8 January 2018 the Commission received written submissions from the Transport Workers’ Union on behalf of Ms Centofanti. A copy of these are attached.
Deputy President Anderson has not yet formed a view as to whether the application should be dismissed on the ground that it has no arguable prospects of success given the effluxion of time, or whether the matter should be re-listed for directions. However the Deputy President considers it appropriate to provide the employer with an opportunity to respond to the written submission prior to that decision being made. In particular, the Deputy President invites (but has not directed) the Respondent employer to provide to the Commission (and the Transport Workers’ Union) a written submission in response and any evidence or written material which it wishes to rely upon by close of business Monday 22 January 2018.
The Deputy President is particularly interested in the Respondent employer’s response, if any, to the submissions made at paragraphs 21 to 28 and 34 to 42 of the written submission made by the Transport Workers’ Union.
If the Respondent provides such material, the Deputy President will then provide a further seven days, until close of business 29 January 2018 for Ms Centofanti or her representative Union an opportunity to provide a written reply.
Unless either party seeks to be heard orally, the Deputy President will then proceed to determine, on the papers, whether the matter is to be dismissed or whether the Commission file will be re-opened and the matter re-listed. It is to be noted at this stage the matter has simply been referred to the Deputy President and the file, which had been administratively closed, has not been formally re-opened or re-allocated.
A copy of this correspondence has also been provided to Ms Centofanti’s representative Union and Ms Centofanti.
Yours sincerely,
Deanna Pignone
Associate to Deputy President Anderson”
[21] On 22 January 2018 Broadspectrum filed submissions on the merits and effluxion of time.
[22] On 25 January 2018 my Associate sent by email to the TWU and to Mrs Centofanti a reminder that the applicant “may provide a written reply” by close of business 29 January 2018.
[23] On 29 January 2018 Mrs Centofanti sent a three page email to the Commission (but not the respondent). It was expressed as a reply prepared by her without being able to “get hold” of the TWU. It contained relevant information concerning events between 2013 and 2017. Some of this was highly personal. At my direction, my Associate advised Mrs Centofanti that any reply needed to be provided to all parties to proceedings and that an opportunity would be provided to her to resubmit her reply in an amended form if she wished to do so in light of the personal information it contained.
[24] On 31 January 2018 at 10.23am Mrs Centofanti sent a reply in the same form to the Commission and copied it to the TWU and the respondent.
[25] On 31 January 2018 at 12.21pm the TWU emailed me advising that the applicant was awaiting further directions from the Commission based on the submissions of 8 January 2018 and the employer response of 22 January 2018.
Consideration
[26] The issue before me is whether I should grant the applicant’s request to re-list the matter or, alternatively, whether I should dismiss the matter. I have the power to relist the matter under section 589 of the FW Act. I have the power to dismiss the matter of my own motion under section 587.
[27] I identified these as the issues in my correspondence to the parties of 22 December 2017 and 9 January 2018. I have provided both parties a reasonable opportunity to put evidence and submissions before me on these questions. Both have done so by way of written submission.
[28] I make this decision based on all of the information before me, being the material on the Commission’s hard copy and electronic file (as recited in this decision) and in particular the submissions of the parties of 8 and 22 January 2018. While I have regard to the email reply of Mrs Centofanti sent on 31 January 2018 as it is before me, I note however that the factual and personal matters it refers to have not been tested in an evidentiary sense. I refer to it only where I need to do so.
The statutory scheme
[29] The power to dismiss a matter is provided for in section 587 of the FW Act:
“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.”
[30] The power to relist a matter is a power exercisable under the Commission’s general powers in section 589:
“589 Procedural and interim decisions
(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.
(2) The FWC may make an interim decision in relation to a matter before it.
(3) The FWC may make a decision under this section:
(a) on its own initiative; or
(b) on application.
(4) This section does not limit the FWC’s power to make decisions.”
[31] Whether Mrs Centofanti’s application should be relisted or alternatively dismissed is a discretionary matter. It is a discretion to be exercised objectively and according to judicial principles. In considering whether to relist the matter or alternatively dismiss the matter, an appropriate starting point is the Commission’s general obligations expressed in section 577 and 578 of the FW Act:
“577 Performance of functions etc. by the FWC
The FWC must perform its functions and exercise its powers in a manner that:
(a) is fair and just; and
(b) is quick, informal and avoids unnecessary technicalities; and
(c) is open and transparent; and
(d) promotes harmonious and cooperative workplace relations.”
“578 Matters the FWC must take into account in performing functions etc.
In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:
(a) the objects of this Act, and any objects of the part of this Act; and
(b) equity, good conscience and the merits of the matter; and
(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”
[32] I have regard to these general duties and apply them in the context of the following matters I consider of particular relevance to determining this matter:
● The unfair dismissal statutory scheme;
● The history of the matter (including the conduct of the parties);
● The length of the delay;
● The reason for the delay;
● Prejudice (if any) should the matter be relisted or dismissed; and
● Relevant authorities on the operation of sections 587 and 589.
The unfair dismissal statutory scheme
[33] Mrs Centofanti’s application was made under Part 3-2 of the FW Act ‘Unfair Dismissal’. The statutory scheme establishes a framework that does not exclusively focus on a dismissed employee. The framework seeks to balance “the needs of business” and “the needs of employees”.2 It has the further object of providing procedures that are “quick, flexible and informal”.3 It provides remedies with an emphasis on reinstatement.4 It requires applications to be made within a short time period after dismissal (21 days), with an extension of time only in exceptional circumstances.5 Compensation orders for an unfair dismissal can only be made if reinstatement is inappropriate and even then, only at the discretion of the Commission.6
[34] This statutory framework places emphasis on accessing the jurisdiction and having matters determined in relative close proximity to the date a dismissal takes effect. There are clear policy reasons for doing so. The primary remedy (reinstatement) is less viable the longer a dismissed employee has been absent from the workplace. An employer’s business is not a static concern. A dismissed employee needs to know of their rights and get on with their life, one way or the other, within a reasonable period after dismissal.
[35] The FW Act’s statutory scheme also places emphasis on conciliation and settlement between the parties as a precursor to Commission arbitration.7
[36] In this matter, the emphasis placed by the statutory scheme on the proximity between the date a dismissal takes effect and the date a matter is determined is a factor that weighs against the matter being relisted.
[37] Further, the recognition given in the statutory scheme to conciliation and settlement as a precursor and alternative to arbitration is a factor that weighs against the matter being relisted should I find that a settlement agreement had been reached between Transfield and Mrs Centofanti.
The history of the matter (including the conduct of the parties)
[38] I have recited the history of this matter in this decision.
[39] Mrs Centofanti made her application in a timely manner, within 21 days after her dismissal took effect. She had the benefit of being represented by her union and taking their advice.
[40] Transfield responded in a timely manner, as required by Commission rules.
[41] Both parties agreed to conciliation. The conciliation was held in a timely manner, and both parties participated, with Mrs Centofanti assisted by her union.
[42] The letter by Conciliator Cashen to the parties on 30 May 2013 was sent the day of the conciliation conference. It is evidence that a settlement agreement had been reached at that conference. The notation on the Commission’s electronic case history to the effect “no cooling off period settlement email sent” is an indication that a cooling off period was not applicable to the settlement made before Conciliator Cashen. The conciliator’s letter is evidence that the agreement was to be reduced to writing between the parties, and that the responsibility for doing so and giving effect to the terms of settlement would be a matter for the parties. There is no evidence that the agreement was conditional in the sense of being ‘subject to agreement’, or further consideration or re-consideration or subject to further negotiation; rather the evidence is that an agreement itself was reached and that agreement included a mutual intent to record its terms in writing.
[43] The submission to me by the TWU on the applicant’s behalf says:
“21. The Application was subject to a conciliation by consent and it is the Applicants understanding that the matter was resolved by way of an agreed monetary settlement.
22. However, no written Deed/Terms of Settlement was executed by either party and the matter was not formally discontinued.”8
[44] For her part, the applicant acknowledges that a settlement had been reached but claims that she was awaiting receipt of the terms of settlement from her union but did not receive them. I also note that the email by Mrs Centofanti to the SA Employment Tribunal of 12 August 2017 makes reference to the settlement and what she believed to be its terms. She repeated that in on-forwarding that email to the Commission on 15 August 2017 and again in her email to the Commission of 25 September 2017.
[45] The submission by the employer claims that a settlement had been reached.
[46] The question of whether there was or was not a binding settlement agreement is a question of fact, informed by legal principles.9 On the basis of the material before me, I am satisfied on the balance of probabilities that a binding and operative settlement agreement had been reached on 30 May 2013 between the parties at the telephone conciliation conference before Conciliator Cashen, and I make that finding.
[47] I further find that Conciliator Cashen forwarded documentation to the parties to record and sign the terms of their settlement agreement and in doing so indicated that the Commission would have no further role in the matter and did not require the written settlement agreement to be relayed back to the Commission.
[48] I further find that the settlement agreement was not expressed to be ‘subject to contract’ or an expression of similar import such as to create an overriding condition to the effect that what was agreed was the intended basis of a future contract, rather than constituting a contract of itself.10
[49] I further find that no party in the ensuing days, weeks or months following the 30 May 2013 conciliation conference and the letter from Conciliator Cashen communicated with the Commission raising any question about either the correspondence received from Conciliator Cashen, the progress of the matter, the terms of the settlement agreement or its implementation.
[50] The fact that a binding and operative settlement agreement was reached between the parties is a factor that weighs strongly against the matter being relisted.
[51] The fact that a binding and operative settlement agreement was reached by Mrs Centofanti in a formal Commission appointed process in which she participated and did so with the assistance and advice of her union representative is a factor that weighs against the matter being relisted.
The length of the delay
[52] The delay between the telephone conciliation conference and the request for relisting on 13 December 2017 is four years and one hundred and ninety-seven days. On any measure, this is an extreme delay. In the context of a statutory scheme placing emphasis on being “quick, flexible and informal” it is extraordinary and, in the absence of an equally compelling explanation and set of circumstances, almost in and of itself prohibitive to exercising a discretion in favour of relisting.
[53] At over four and a half years, the length of the delay in this matter is a factor that weighs strongly against the matter being relisted.
The reason for the delay
[54] Mrs Centofanti says that the delay in seeking the matter to be relisted is because she alleges that the settlement agreement has not been given effect to and that she has “tried a number of times to get my money but get the run around with the union who say they have not (sic) records.”11
[55] In its submission on her behalf, the TWU says:
“Terms of Settlement agreement was not duly composed or executed by either party;
A commercial sum was not deposited into the Applicant’s Bank Account, indicating that a settlement was reached; and
The Fair Work Commission (FWC) did not receive a notice of discontinuance from the Applicant.”12
[56] For its part, the employer says:
“The Applicant has not provided any explanation or justification for her delay.
In the period since this claim was originally brought and the attempt to revive this matter by the TWU, the Applicant also pursued a workers compensation claim against the Respondent. It would appear the Applicant having finalised a workers compensation claim is now seeking to revive a dormant unfair dismissal claim.”13
[57] I note that Mrs Centofanti’s email reply of 31 January 2018 also makes general reference to attempts to contact the union as well as references to work commitments, family commitments, moving interstate, “a court case about my ex”, “my injury and my case taking nearly 4 years” and certain other personal and health issues.
[58] The material relating to the reasons for the delay set out in the submissions, from both sides, are assertions on which I cannot make reliable findings.
[59] However, even if I accept that the settlement agreement has not been given effect to and even if I accept that Mrs Centofanti periodically followed the matter up with her union in the weeks, months and years following 30 May 2013, this does not explain inaction and a failure to follow-up and bring the matter to the Commission’s attention over the whole four and a half year period. Even if the contentions of the applicant are accepted, very substantial periods exist when there appears to have been no follow-up and no action.
[60] Nor am I able to draw any conclusion on whether implementation of the settlement agreement was or was not impacted by her workers compensation claim over which I have only scant and indirect information.
[61] In these circumstances, the reason for the delay is unpersuasive and is a factor that weighs against the matter being relisted.
Prejudice (if any) should the matter be relisted or dismissed
[62] I consider prejudice in three contexts:
● Prejudice to the applicant;
● Prejudice to the respondent; and
● Prejudice to the administration of justice.
[63] If the matter is not relisted, the merits of the applicant’s unfair dismissal claim will not be heard and determined. The submissions filed on her behalf by the TWU assert that whilst the dismissal was for conduct related reasons (an incident on 17 April 2013 whereby the applicant as a bus driver struck another road user on a public road), it is “not without a reasonable prospect of success”.14 The employer in its response lodged in 2013 said that the incident was investigated at the time and the dismissal supported by CCTV footage.
[64] Although I am in no position to weigh the merits or otherwise of these contentions, I accept that a failure to relist the matter will deny the applicant the belated chance to prosecute the merits of her case, and that this weighs in favour of relisting the matter.
[65] Conversely, if the matter is relisted the employer asserts considerable prejudice:
“The delay in this matter inevitably makes any determination as to merits of the case unsafe. The Applicant self servingly claims to have a strong case, after a delay of five years in circumstances where the Applicant knows the Respondent is in a position of complete disadvantage in refuting her claim.”15
[66] I accept that the effluxion of a very substantial period of time since the incident of 17 April 2013 took place would create substantial prejudice to the employer in its defence of this matter. Further, although the employer is a large business this fact alone does not mitigate the prejudice. The prejudice to the employer in its defence of the claim that would be likely to arise is a factor that weighs against it being relisted.
[67] I also take into account the impact on the administration of justice and in particular the Commission’s obligations to determine matters in a fair and just manner according to law. Proceedings of this nature require the taking of evidence, findings as to credit of witnesses, the application of facts (as found) to the law and the capacity to provide timely and meaningful remedies that are appropriate to the circumstances.
[68] There is a high likelihood that after such an extraordinary effluxion of time it would be difficult if not impossible to access relevant witnesses, to secure a reliable recall from those witnesses and to access or reliably rely on documentary or CCTV material relevant to the case. Compromising proceedings in this manner would, if those proceedings were to occur, compromise the administration of justice. Moreover, the TWU submissions filed on behalf of the applicant indicate that the TWU’s files on the matter (including the settlement agreement) are “scarce”. They also indicate that “the TWU organiser who had assisted the Applicant died in or about November 2015”.16 The employer contends:
“Given the five (5) year delay in this matter all relevant employees who could reasonably give evidence in this matter have left the employ of the Respondent. Any revival of this matter would put the Respondent in the unfortunate position of trying to respond to evidence from the Applicant that cannot be refuted. Memories and recollections of events which are now five years are also inevitably unreliable.”17
[69] In these circumstances, I consider that the compromise to a fair and just determination of the matter is a factor that weighs strongly against the matter being relisted.
Relevant authorities on the operation of sections 587 and 589
[70] A decision to relist the matter exercising the powers of the Commission under section 589 of the FW Act is a discretionary matter. Even where a matter has been inactive or ‘stale’ and the tribunal file has been closed for a considerable period the discretion should be exercised judicially and having regard to the factors I have outlined in this decision.
[71] If the matter is not relisted, the Commission file will remain closed and the matter not proceed. However, in circumstances where a Notice of Discontinuance has not been filed by the applicant and the matter not otherwise dismissed or disposed of, the prospect remains that a request of the type before me could again be made. This is to be avoided. The Commission rules, and the proper administration of matters before the Commission, require matters to be disposed of to finality, either by determination or discontinuance. Where settlement occurs, the Commission rightly expects parties to file notices of discontinuance. This has not occurred in this case despite the applicant being advised at the outset of these proceedings18 that it was the parties’ obligation to advise the Commission and discontinue proceedings if agreement was reached (as I have found it was).
[72] The parties, including the applicant have failed to comply with that directive.
[73] A decision to dismiss the matter where a settlement agreement has been reached is capable of being made under section 587.
[74] The decision of a Full Bench of the Commission in Curtis v Darwin City Council19 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. That decision gave effect to well-established authority set out by the Federal Court in Australian Postal Corporation v Gorman.20
[75] I have made findings that a settlement agreement was made on 30 May 2013, that it was not subject to a cooling-off period and that it was not conditional or subject to a written agreement. I have found that it was a binding and operative agreement in its own right which was intended to be reduced to writing. As such, it formed an agreement that fell within one of the first two categories in Masters v Cameron, and not the third.21 It was a binding contract.
[76] I take into account the assertion by Mrs Centofanti supported by the TWU submission that the 2013 settlement agreement has not been given effect to. If that is so, it has been open to Mrs Centofanti over this period to exercise her rights to enforce such an agreement. As the Federal Court said in Australian Postal Corporation v Gorman “any action to enforce the contract may need to be taken in another jurisdiction and that is almost certainly so. However, that circumstance is not a reason to conclude that FWA cannot recognise a binding settlement agreement.”22
[77] Reactivating a stale unfair dismissal claim, including the one that gave rise to the settlement agreement, is neither appropriate nor reasonable. That is especially so where the factors weighing against the relisting of the matter profoundly weigh against such a course.
[78] It is in the interests of justice that these proceedings be brought to a finality.
[79] I refuse the application to relist the matter for the above reasons.
[80] I conclude that the continued pursuit of the application in circumstances where a settlement agreement has been reached to be frivolous and vexatious and that the application has no reasonable prospects of success within the meaning of subsections (1)(b) and (1)(c) of section 587 of the FW Act.
[81] I further conclude, for the reasons set out in this decision and irrespective of whether a settlement agreement had been reached on 30 May 2013, that the extreme delay in prosecuting the application over the intervening four and a half years means that it would now have no reasonable prospects of success and that the application is frivolous and vexatious within the meaning of subsections (1)(b) and (1)(c) of section 587 of the FW Act.
[82] In any event, for the reasons set out in this decision, I would consider it appropriate in the interests of justice to dismiss the application exercising my general discretion under section 587(1) of the FW Act on the ground that the extreme delay would render further proceedings before the Commission unsafe.
[83] For these reasons, I consider it appropriate in the exercise of my discretion and on my initiative, and on the basis of established authority, to dismiss Mrs Centofanti’s application using the powers vested in me under section 587(1)(b), 587(1)(c) and 587(1) of the FW Act.
[84] I draw to the attention of Broadspectrum my finding that a binding and operative settlement agreement was reached on 30 May 2013. I draw to the attention of Mrs Centofanti and her advisers the legal right a party to a contract has to seek the enforcement of binding agreements should it be the case that the terms of an agreement have not been given effect to.
[85] An Order giving effect to this decision is issued in conjunction with its publication.
DEPUTY PRESIDENT
Final written submissions:
Applicant (Rina Centofanti represented by the Transport Workers’ Union), 8 and 29 January 2018
Respondent (Broadspectrum), 22 January 2018
<PR600127>
1 Letter Fair Work Commission to Mrs Rita Centofanti dated 14 May 2013
2 section 381(1)(a)
3 (section 381(1)(b)
4 section 381(1)(c)
5 Section 394(2) and (3)
6 Section 390(3)
7 Section 595
8 Applicant’s Outline of Submissions Re Merits and Effluxion of Time (undated) paragraphs 21 - 22
9 Australian Postal Corporation v Gorman [2011] FCA 975 at [37]
10 See Curtis v Darwin City Council[2012] FWAFB 8021 at [72]
11 Email Mrs Centofanti to the Commission 17 August 2017. See also email of 25 September 2017
12 Applicant’s Outline of Submissions Re Merits and Effluxion of Time (undated) paragraph 27
13 Respondents Submissions (undated) paragraphs 4 - 5
14 Applicant’s Outline of Submissions Re Merits and Effluxion of Time (undated) paragraph s 30 and 33
15 Respondents Submissions (undated) paragraph 8
16 Applicant’s Outline of Submissions Re Merits and Effluxion of Time (undated) paragraph s 24 and 25
17 Respondents Submissions (undated) paragraph 7
18 Letter from Commission to applicant 14 May 2013
19 [2012] FWAFB 8021
20 [2011] FCA 975 at [33] per Besanko J: “…a valid and effective accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such cause of action is clearly capable of being considered to be frivolous or vexatious or without reasonable prospects of success.”
21 [1954] 91 CLR 353 at 360-361
22 [2011] FCA 975 at [35]
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