Ms Isabella DeFazio v State of Victoria (Department of Education and Early Childhood Development)

[2011] FWA 7806

[2011] FWA 7806

FAIR WORK AUSTRALIA

EX TEMPORE DECISION

Fair Work Act 2009
s.394—Application for unfair dismissal remedy

Ms Isabella DeFazio
v
State of Victoria (Department of Education and Early Childhood Development)
(U2011/7940)

COMMISSIONER SMITH MELBOURNE, 11 NOVEMBER 2011

Matter settled; applicant sought a relisting; s.587 made by the respondent; jurisdiction when matter settled; application dismissed.

[1] The following decision, now edited, was issued during proceedings conducted on 7 November 2011.

[2] On 17 May 2011, Ms DeFazio made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking relief in relation to her termination of employment by the State of Victoria (Department of Education and Early Childhood Development) (the Department).

[3] The matter was listed for Conference/Hearing on 7 September. Pursuant to ss.398 and 399 of the Act, I conferred with the parties to ascertain their views on whether a hearing would be the most efficient way to resolve the matter. Discussion took place and, on the basis of matters conveyed to me, I considered that it was not appropriate to hold a hearing.

[4] During those discussions, both parties were represented and agreement was reached. Ms DeFazio now seeks to abandon that agreement. The basis for abandoning that agreement is that she never intended to reach agreement and she felt intimidated by the position taken by her former employer. The employer sought for the matter to be dismissed as frivolous or vexatious.

[5] Today, in open proceedings dealing with the application by the employer to dismiss the application, Ms DeFazio stated that she did reach agreement.

[6] The Department submits that, as an agreement was reached, the Tribunal no longer has the jurisdiction to continue to hear the application. I agree. An agreement was reached where parties were represented and there was no issue raised in relation to alleged intimidation at the time. It follows that nothing remains to determine. The file will be closed. Out of an abundance of caution, I dismiss the application for want of jurisdiction.

COMMISSIONER

Appearances:

I. DeFazio the applicant.

C. Symons of counsel on behalf of the State of Victoria (Department of Education and Early Childhood Development).

Hearing details:

2011.
Melbourne:
November, 7.

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