Peter Caldwell v G.S. Yuill & Company Pty Limited

[2019] FWC 5284

[2019] FWC 5284

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Caldwell
v
G.S. Yuill & Company Pty Limited
(U2019/2517)

VICE PRESIDENT CATANZARITI SYDNEY, 30 JULY 2019

Application for an unfair dismissal remedy.

[1] On 6 March 2019, Peter Caldwell applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal against his former employer, G.S. Yuill & Company Pty Limited (the Respondent). Mr Caldwell’s application indicated that his dismissal took effect on 10 February 2019. If that is correct, then his application was lodged three days outside the 21-day period prescribed by s.394(2) of the Act.

[2] On 31 March 2019, the Respondent lodged a Form F3 – Employer Response to Unfair Dismissal Application. The response indicated that the Respondent objected to Mr Caldwell’s application on the basis that it was made out of time.

[3] Despite its jurisdictional objection, the Respondent agreed to participate in conciliation before a Commission staff conciliator, to attempt to resolve this matter. This occurred on 4 April 2019.

[4] On 18 April 2019, the staff conciliator indicated that the parties reached an in-principle settlement at the conciliation before him, and that the scope of any subsequent discussions would be limited to the wording of the terms of settlement drafted by the Respondent’s representative.

[5] Over the subsequent two months, Commission staff contacted representatives for both parties on several occasions to obtain updates on the progress of settlement.

[6] On 30 May 2019, the Respondent’s representative advised Commission staff that the Respondent understood the matter had settled. Commission staff then attempted to contact Mr Caldwell’s representative to confirm this, but they were unable to reach him.

[7] On 19 June 2019, the application was referred to me.

[8] On 20 June 2019, my chambers contacted both parties’ representatives to clarify the status of this matter. Both representatives advised that the matter had settled, but that the form of the deed was still being finalised, as the latest draft was still with Mr Caldwell for comment. Mr Caldwell’s representative further advised that he was only able to contact Mr via email at that stage.

[9] On 4, 8 and 16 July 2019, my chambers sent further follow-up emails to Mr Caldwell’s representative. On 5, 12 and 22 July 2019, Mr Caldwell’s representative advised that he had not been able to contact his client.

[10] Later on 22 July 2019, I caused the following to be sent to both parties’ representatives:

“The Fair Work Commission (the Commission) was advised that this matter settled in principle on 18 April 2019, and was further advised that the remaining discussion between the parties was limited to the wording of the deed of settlement.

The Commission has since made numerous attempts to follow up with the Applicant regarding the status of this matter. Mr Britt has advised that he has tried to contact the Applicant, without success.

Given the lengthy delay in either resolving or progressing this matter, the Commission is minded to dismiss this application on its own initiative, principally on the basis that the parties have reached a settlement and therefore it has no reasonable prospects of success.

Please advise your views on this proposed course of action within seven days, i.e. by 4:00 pm on Monday, 29 July 2019.”

[11] To date, it appears Mr Caldwell’s representative still has not been able to obtain instructions in order to respond to any of the correspondence from my chambers. My chambers did not receive a response to the 22 July 2019 email from either party.

[12] Section 587 of the Act relevantly 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 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.”

[13] In the circumstances, I have decided to dismiss the application pursuant to s.587(1)(c) of the Act. There is no utility in the matter remaining open as it has no reasonable prospects of success, given the settlement.

[14] An order to that effect will issue with this decision.

VICE PRESIDENT

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