Ryan Englert v Julie Peacocke T/A Lily Jackson Hair & Makeup

[2014] FWC 333

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ryan Englert
v
Julie Peacocke T/A Lily Jackson Hair & Makeup
(U2012/15675)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 13 JANUARY 2014

Application for relief from unfair dismissal discontinued.

[1] On 16 November 2012, Mr Ryan Englert made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] The matter was listed for conciliation on Friday, 8 March 2013. Conciliation could not take place.

[3] On 30 January 2013, Mr Englert advised the Fair Work Commission (the Commission) in writing that he no longer wanted to continue with his application. The Commission advised Mr Englert of the formalities of discontinuing an application and asked Mr Englert to complete a Form F50 - Notice of Discontinuance (Form F50). A Copy of a Form F50 was forwarded to Mr Englert by email.

[4] The Commission attempted to contact Mr Englert by telephone and sent correspondence by email on 21 November 2013 and advised that his application remained open and that the Form F50 was required. To date the Commission has not received a completed Form F50.

[5] Having regard to the material before me, I am satisfied that given Mr Englert’s advice, that he no longer wanted to prosecute his application, he intended to discontinue his application but has not filed a Form F50.

[6] Section 588 of the Act provides:

588 Discontinuing applications

A person who has applied to the FWC may discontinue the application:

(a) in accordance with the procedural rules (if any); and

(b) whether or not the matter has been settled.

[7] I have decided to waive compliance with the Fair Work Rules 2010 (the Rules).

[8] Rule 4 of the Rules provides that the Commission may dispense with compliance with the Rules. I have decided to waive compliance with the requirement that Mr Englert file and serve a Form F50 as I am satisfied that Mr Englert has discontinued his application.

[9] The application is therefore, discontinued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Englert commenced proceedings in the Fair Work Commission against Peacocke, seeking relief from unfair dismissal. Peacocke opposed the application. The dispute came before the Federal Circuit and Family Court of Australia, where the matter was listed for a directions hearing. The primary legal issue before the court was whether Englert's application for relief from unfair dismissal should be discontinued. Englert sought to discontinue the application, and Peacocke opposed the application. The court considered the relevant legislative provisions and case law on discontinuing an application for relief from unfair dismissal. The court noted that Englert had the right to discontinue the application, and that there were no other parties with an interest in the proceedings who would be prejudiced by the discontinuation. The court was satisfied that there were no substantial merits to the application and that the application should be discontinued without any order as to costs. Englert's application for relief from unfair dismissal was therefore discontinued.

The court ordered that the application be discontinued without any order as to costs. This outcome reflects the principle that a party has the right to discontinue their own proceedings, provided that there are no other parties who would be prejudiced by the discontinuation. The court's decision also demonstrates the importance of considering the relevant legal principles and authorities when making a decision on whether to discontinue an application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established