Paul Gibbs v Equanim Developments Pty Ltd

[2020] FWC 6567

[2020] FWC 6567

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Gibbs
v
Equanim Developments Pty Ltd
(U2020/11980)

DEPUTY PRESIDENT COLMAN MELBOURNE, 7 DECEMBER 2020

Unfair dismissal application – non-compliance with directions – no explanation – prior settlement agreement – ss 399A and 587(1)(c) – application dismissed

[1] This decision concerns an application by Mr Paul Gibbs for an unfair dismissal remedy under s 394 of the Fair Work Act 2009(Cth) (Act). Mr Gibbs contends that he was unfairly dismissed from his employment with Equanim Developments Pty Ltd (company), where he had worked for some three and a half years before his dismissal on 28 August 2020. In his F2 application, Mr Gibbs states that he was forced to resign because of a ‘toxic work environment’.

[2] The company objects to the application on the jurisdictional ground that Mr Gibbs was not dismissed but agreed to resign from his employment. The company submits that on 27 August 2020 Mr Gibbs was involved in an altercation with another employee during which he drove a forklift towards his co-worker, threw a set of keys at his head, and then abused him. The company submits that on 28 August 2020 it advised Mr Gibbs that it proposed to dismiss him summarily, whereupon Mr Gibbs asked to resign and receive payment in lieu of notice.

[3] Attached to the company’s F3 response document is a separation and release agreement dated 28 August 2020, signed by Mr Gibbs, which states that Mr Gibbs has resigned and given notice of the termination of his employment, and that the company has agreed to pay Mr Gibbs $3,306. The agreement states that its terms are in full and final settlement of the parties’ claims.

[4] On 28 October 2020 I issued directions to the parties to file and serve outlines of argument and statements of evidence. Mr Gibbs was required to file his materials by 25 November 2020. He failed to do so. On 26 November 2020, I issued to the parties a notice of listing for a telephone non-compliance hearing, to occur at 1.00pm on 27 November 2020. The parties were advised that the hearing had been scheduled because Mr Gibbs had not complied with the directions issued by the Commission.

[5] Mr Gibbs failed to participate in the non-compliance hearing. At the hearing, the company made an oral application under s 399A of the Act that Mr Gibbs’ unfair dismissal application be dismissed. Section 399A states:

“(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.”

[6] After the telephone non-compliance hearing, my associate wrote to Mr Gibbs and advised him that the company had made an application under s 399A, and conveyed to him my directions that by 4.00pm on 4 December 2020 he file submissions on his reasons for not attending the non-compliance hearing and not complying with the original directions of the Commission, and submission as to why the Commission should not dismiss his application under s 399A (s 399A submissions).

[7] I also directed that by 4.00pm on 4 December 2020 Mr Gibbs file submissions as to why the Commission should not dismiss his unfair dismissal application under s 587(1)(c) on the basis that it had ‘no reasonable prospects of success’, because Mr Gibbs had resigned and signed a separation and release agreement (s 587 submissions). I further advised Mr Gibbs that if no submissions were filed, the Commission might dismiss his application without further notice.

[8] Mr Gibbs did not file s 399A submissions or s 587 submissions. I have decided to determine the company’s s 399A application, and to consider whether the unfair dismissal application should be dismissed under s 587, based on the material before the Commission.

Consideration

[9] In relation to the application under s 399A, it is clear that Mr Gibbs ‘failed to comply with a direction of the FWC relating to the application’ (s 399A(1)(b)), because he did not file materials in accordance with my directions of 28 October 2020, and failed to comply with my directions of 27 November 2020 to file s 399A submissions and s 587 submissions. Mr Gibbs also ‘failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application’ because he did not attend the telephone non-compliance hearing (s 399A(1)(a)). I note that the application under s 399A was made by the employer (s 399A(2)). The requirements of s 399A have therefore been met and the Commission’s discretion to dismiss Mr Gibbs’ application under that provision has been enlivened.

[10] As to the exercise of my discretion, it is relevant to note that Mr Gibbs has now on several occasions failed to comply with the requirements of the Commission, and that he has offered no explanation for this failure, despite being afforded a reasonable opportunity to do so. I also take into account that Mr Gibbs’ application is not one that I consider to have merit, and that in my view there are no considerations militating against the exercise of my discretion to dismiss Mr Gibbs’ application in this case.

[11] I have therefore decided that it is appropriate in all the circumstances to dismiss Mr Gibbs’ unfair dismissal application under s 399A, and I do so.

[12] Had the employer not made its application under s 399A, I would nevertheless have decided to dismiss Mr Gibbs’ unfair dismissal application under s 587(1)(c). Based on the materials before the Commission, I consider that Mr Gibbs resigned from his employment, and that, because there was no termination of his employment on the employer’s initiative (s 386), his unfair dismissal application is incompetent. Mr Gibbs was not forced to resign (s 386(1)(b)) because, although the company had resolved to dismiss him summarily for serious misconduct, Mr Gibbs wished to resign and receive a payment of three weeks’ wages, and he agreed with the company to end his employment on this basis.

[13] A further effect of the settlement agreement was that, even if Mr Gibbs had been dismissed, his right to bring an unfair dismissal application under Part 3-2 of the Act was extinguished by the parties’ agreement to settle their claims. The settlement agreement is an accord and satisfaction which is a complete answer to the applicant’s claim. The Commission may have regard to in considering whether an application has no reasonable prospects of success under s 587 of the Act (see Australian Postal Corporation v Gorman [2011] FCA 975, Besanko J, at [31]-[33]). 1

Conclusion

[14] Mr Gibbs’ application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   See also Stasiak v ISS Security[2020] FWC 6383, per Clancy DP at [21] to [24]