Roberto Bertolini v National Sustainability Institute Pty Ltd

[2023] FWC 3467

[2023] FWC 3467

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Roberto Bertolini

v
National Sustainability Institute Pty Ltd

(U2023/8998)

DEPUTY PRESIDENT CLANCY MELBOURNE, 22 DECEMBER 2023

Application for an unfair dismissal remedy – application dismissed.

1. On 18 September 2023, an application was made on behalf of Mr Roberto Bertolini (Applicant) to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). The National Sustainability Institute Pty Ltd was named as the Respondent to the application. The application was lodged by Mr Bertolini’s paid agent, Unfair Dismissals Experts.

1. On 26 October 2023, an amended Form F2 was lodged on behalf of Mr Bertolini. A staff conciliation conference was initially listed for 2 November 2023, and then following the granting of an adjournment request, was then listed for 27 November 2023. During this time, the Commission sent out correspondence to the Respondent notifying that no Form F3 Employer Response had been received.

1. On 27 November 2023, Mr Bertolini attended the staff conciliation with his representative and Mr Mark Ryan attended on behalf of the Respondent. The Commission’s file indicates that the conciliation did not proceed because:

• Mr Ryan asserted that Mr Bertolini had already signed a release agreement; and

• Mr Bertolini requested the matter nonetheless proceed to hearing on the basis that he was forced to sign the settlement agreement under duress.

1. Mr Bertolini’s representative ceased to represent him that day and the matter was subsequently referred to me. On 28 November 2023, I directed correspondence to be sent from my Chambers. This correspondence directed the Respondent to file a Form F3 and a copy of the signed released agreement with my Chambers without delay. No response was received from the Respondent. I subsequently listed the matter for a Mention Hearing on 8 December 2023. Mr Jason Besser appeared for the Respondent but despite multiple attempts by my Chambers to confirm of Mr Bertolini’s attendance, Mr Bertolini could not be contacted. The Mention proceeded in his absence.

1. During the Mention Hearing, Mr Besser confirmed the Respondent’s position was that Mr Bertolini had signed a release agreement. Mr Besser was asked to produce a copy of this release agreement to my Chambers and was advised that the matter would be listed for further case management if this did not occur.

1. On 13 December 2023, the Respondent provided to my Chambers a copy of a signed release agreement. The release agreement has been signed by both parties and witnessed by a third party. Clause 2.1 of the release agreement provides that Mr Bertolini releases and discharges the Respondent from any claims arising out of or connected with the employment. The Respondent has also provided a statutory declaration from the witness, who declares that she witnessed Mr Bertolini signing the release agreement.

1. A settlement agreement extinguishes an unfair dismissal application and a new cause of action arises out of the agreement reached.[1] On considering the release agreement, I am satisfied that there is a valid agreement reached such the unfair dismissal application has no reasonable prospect of success.

1. Section 587(1) of the FW Act provides as follows:

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.

1. I have therefore determined that this application has no reasonable prospects of success. The application is therefore dismissed under s.587(1)(c) of the FW Act.

1. That this matter had to be finally determined by a Decision of the Commission reflects poorly on all parties involved. I suspect none of them will care. Mr Bertolini reached a settlement agreement and while earlier insisting that the unfair dismissal application proceed, thereafter failed to engage with the Commission’s processes. Unfair Dismissal Experts once again demonstrated that they rarely, if ever, play any useful part in Commission proceedings and the Respondent failed to respond to initial correspondence from my Chambers, thereby necessitating the requirement to hold a Mention, to which it sent someone to speak for it who lacked any knowledge of the matters in dispute.

1. An Order[2] dismissing the application for a remedy for unfair dismissal will be issued with this Decision.

DEPUTY PRESIDENT

[1] See Australian Postal Corporation v Gorman [2011] FCA 975 at [31].

[2] PR769800. 

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