Nicholas Burnett v Concrew NSW Pty. Limited

[2023] FWC 2018

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nicholas Burnett
v

Concrew NSW Pty. Limited

(U2022/7958)

COMMISSIONER BISSETT

MELBOURNE, 14 AUGUST 2023

Application for an unfair dismissal remedy

On 1 August 2022 Mr Nicholas Burnett (the Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 (FW Act) in which he claimed that he was unfairly dismissed from his employment with Concrew NSW Pty. Limited (the Respondent).

The matter was not subject to conciliation for some time for reasons that are not relevant to this decision. Conciliation was conducted by a staff conciliator on 7 February 2023 at which the matter apparently settled.

On 9 May 2023 the Commission received an email from the Respondent enquiring as to whether the matter could be re-opened as no signed terms of settlement had been received from the Applicant.

On 28 June 2023 the Commission received an email from the Applicant requesting that the matter be re-opened.

On 10 July 2023 the matter was subject to a mention before me. Following from the mention a settlement agreement was signed by the Applicant and subsequently sent to the Commission on 11 July 2023.

On 17 July 2023 the Applicant telephoned my chambers and advised that he had received payment from the Respondent in accordance with the terms of the agreement. However, he indicated some concerns with this as it was an amount less than that provided for in the settlement agreement.

In order to assist the parties my chambers sent an email to the parties later that day confirming that Mr Burnett was paid an amount that was taxed in accordance with the applicable law, as was outlined in the agreement. Given his confirmation that the terms of the agreement had been fulfilled (as payment was made and received), I requested that the Applicant provide a Form F50 - Notice of Discontinuance to the Commission.

My chambers then contacted Mr Burnett by telephone on 27 July 2023. A voicemail message was left asking that he contact the Commission or provide a Notice of Discontinuance.

On 28 July 2023 my chambers again attempted to contact Mr Burnett. On that day there were five attempts to contact the Applicant, including answering two phone calls from the Applicant that were terminated by him after my associate identified himself.

On 1 August 2023 my chambers sent further correspondence to Mr Burnett. That correspondence advised that I was considering dismissing his application due to his apparent failure to engage in the processes of the Commission and prosecute his claim. The Applicant was advised to provide any submissions as to why his application should not be dismissed by 4.00 pm on 7 August 2023.

No submissions or further correspondence has been received from the Applicant.

Section 587 sets out when the Commission may dismiss an application. It provides:

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 prospect of success.

Section 587 does not limit the circumstances where the Commission can consider dismissing an application. In this matter I consider it appropriate to exercise my discretion to dismiss the application of Mr Burnett in accordance with s.587(1) of the FW Act. I do so as Mr Burnett has unreasonably refused to engage with the Commission in relation to the finalisation of his application and I do not consider that he will do so in the future.

The application is therefore dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Nicholas Burnett lodged an application for unfair dismissal against his former employer, Concrew NSW Pty. Limited, under section 394 of the Fair Work Act 2009. The application was initially made on 1 August 2022, but the matter did not proceed to conciliation for a period due to unspecified reasons. On 7 February 2023, conciliation was conducted by a staff conciliator, which seemingly resulted in a settlement. However, the matter was re-opened when no signed terms of settlement were received from Mr Burnett. Following further communication between the parties and the Commission, a settlement agreement was signed on 11 July 2023, with payment made to Mr Burnett on the same day. Despite the agreement being fulfilled, Mr Burnett contacted the Commission expressing concerns over the amount received. After repeated attempts to contact Mr Burnett to confirm whether the application should proceed, the Commission determined to dismiss the application on the basis that Mr Burnett had failed to engage with the Commission in relation to finalising his claim.

The primary legal issue before the Commission was whether the application should be dismissed under section 587 of the Fair Work Act 2009. Section 587(1) allows the Fair Work Commission to dismiss an application if it is not made in accordance with the Act, is frivolous or vexatious, or has no reasonable prospect of success. The Commissioner exercised his discretion to dismiss Mr Burnett's application, finding that his failure to engage with the Commission and his lack of further correspondence or submissions constituted unreasonable behaviour, and that he would not engage in the future. The Commissioner considered the dismissal appropriate given Mr Burnett's apparent refusal to participate in the Commission's processes.

In reaching the decision to dismiss the application, the Commissioner noted that Mr Burnett had been contacted multiple times by the Commission, with efforts to confirm whether the application should proceed or be discontinued. Despite these efforts, Mr Burnett did not respond, and no submissions or correspondence were received from him after being advised of the potential dismissal. The Commissioner concluded that Mr Burnett's actions demonstrated a lack of reasonable engagement with the Commission, leading to the dismissal of the application. The dismissal was made in accordance with the Commissioner's discretion under section 587(1) of the Fair Work Act, as Mr Burnett had unreasonably refused to engage with the Commission and there was no reasonable prospect that he would do so in the future.

The Fair Work Commission dismissed the application for unfair dismissal brought by Nicholas Burnett against Concrew NSW Pty. Limited. The dismissal was based on Mr Burnett's unreasonable refusal to engage with the Commission and the lack of reasonable prospect that he would do so in the future. The Commissioner found that Mr Burnett had failed to respond to multiple attempts to contact him and provide necessary submissions or correspondence. Consequently, the application was dismissed in accordance with section 587(1) of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established