Natasha Weir v Community Living Association Inc

[2023] FWC 1563

[2023] FWC 1563

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Natasha Weir
v

Community Living Association Inc

(U2023/1666)

COMMISSIONER BISSETT MELBOURNE, 29 JUNE 2023

Application for an unfair dismissal remedy

1. On 1 March 2023 Ms Natasha Weir made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Ms Weir alleges she was unfairly dismissed by Community Living Association Inc (Respondent) on 10 February 2023.

1. For the reasons that follow, the application is dismissed.

Background

1. The application was listed for conciliation before a staff conciliator on 28 March 2023. At the conciliation, the parties reached a settlement agreement. Accordingly, terms of settlement were sent to each party and a settlement letter was sent to parties specifying the following:

   Unless I hear from either of you in writing by the close of business Friday 29 March 2023 the case is resolved in the terms attached and I will close the file accordingly.

   If one of the parties does not want to proceed with the settlement and advises me during the cooling off period, I will refer the case for arbitration before a Member of the Commission. Visit our website to find out more about the process for unfair dismissal claims.

1. On 31 March 2023, Ms Weir was called on her nominated telephone number and advised that, given the cooling off period had expired and a binding agreement had been reached, the matter would be closed.

1. On 7 June 2023, the Respondent made an application for the Commission to dismiss the application of Ms Weir pursuant to s.399A of the FW Act on the grounds that the Applicant unreasonably failed to discontinue her application for unfair dismissal following an agreement being reached or pursuant to the Commission’s general powers to dismiss an application pursuant to s.587 of the FW Act. The Respondent noted that since the conference, they have not received any correspondence or communications from Ms Weir.

1. In response to the Respondent’s application, my chambers wrote to Ms Weir on 15 June 2023 noting the application had been made and that the matter could be finalised by her filing a Form F50 – Notice of discontinuance by 19 June 2023. A failure of her to do so would result in the issue of formal directions seeking submissions as to why her application should not be dismissed.

1. On 20 June 2023, my chambers sent another email to Ms Weir noting she had not provided advice to discontinue and that submissions were now sought as to why her application should not be dismissed by no later than 26 June 2023. Ms Weir failed to respond to respond to this correspondence.

Consideration

1. Section 399A of the FW Act states as follows:

   399A Dismissing applications

(1)    The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

1. In this case I am satisfied, absent any advice to the contrary, that a settlement agreement was reached between Ms Weir and the Respondent. Despite this, and requests for her to do so, Ms Weir has failed to discontinue her application. She has provided no reason for this failure and has consistently failed to respond to any communication with the Commission. I am therefore satisfied that Ms Weir has unreasonably failed to discontinue her application after a settlement agreement has been reached.

1. The application having been made by the Respondent pursuant to s.399A, I am satisfied that the requirements of s.399A(1)(c) have been met. I therefore order that the application of Ms Weir be dismissed.

COMMISSIONER

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