Ms Jan Waldron v Jeanette Margaret Kennedy T/A Healthy Jeanettes

[2017] FWC 2344

[2017] FWC 2344

FAIR WORK COMMISSION

DECISION

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

Ms Jan Waldron
v
Jeanette Margaret Kennedy T/A Healthy Jeanettes
(U2016/14991)

COMMISSIONER HUNT BRISBANE, 28 APRIL 2017

Application for an unfair dismissal remedy.

[1] On 16 December 2016, Mrs Jan Waldron made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] The matter was listed for hearing on 28 April 2017 and the parties entered into an agreement to settle the application prior to the commencement of the proceedings. As part of the terms of settlement, the parties agreed that Mrs Waldron’s unfair dismissal application would be dismissed by consent, with no order to be sought or made as to costs.

[3] The parties did not specify in the settlement agreement which section of the Act the application be dismissed.

[4] Section 587 of the Act states:

“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.”

[5] The parties have entered into a binding settlement agreement and consent to the application being dismissed. Accordingly, I consider it appropriate to dismiss the application pursuant to s.587(1)(c) of the Act in that the application can no longer proceed to determination where the Applicant has agreed with the Respondent not to prosecute the application.

[6] Pursuant to s.587(1)(c) of the Act, Ms Waldron’s unfair dismissal application is dismissed.

COMMISSIONER

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