Salvador Tudela v TD Services (Aust) Pty Ltd T/A Topdrill

[2020] FWC 7078

[2020] FWC 7078

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Salvador Tudela
v
TD Services (Aust) Pty Ltd T/A Topdrill
(U2020/14667)

DEPUTY PRESIDENT BINET PERTH, 31 DECEMBER 2020

Application for an unfair dismissal remedy.

[1] On 10 November 2020, Mr Salvador Tudela (Mr Tudela) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by TD Services (Aust) Pty Ltd T/A Topdrill (Topdrill).

[2] On 24 November 2020 a paid agent purporting to act on behalf of Topdrill sent an email to the FWC indicating that the parties had entered into a binding settlement agreement. The email attached a copy of a settlement agreement which appeared to have been executed by the parties (Settlement Agreement).

[3] The FWC contacted Mr Tudela who did not dispute the existence of the Settlement Agreement but indicated that nevertheless he wished to proceed with the Application. The matter was listed for conciliation on 7 December 2020, but the Application could not be resolved.

[4] On 4 December 2020 Topdrill filed a Form F3 – Employer response to an unfair dismissal application raising a jurisdictional objection to the Application, namely that Mr Tudela was not dismissed and noted that the parties had entered into the Settlement Agreement.

[5] The Application was listed for a conciliation conference with a staff conciliator on 7 December 2020. At the listed start time of the Conference Mr Tudela could not be contacted.

[6] The Application was then allocated to my Chambers for determination.

[7] On 9 December 2020 Chambers sent an email to the parties drawing their attention to section 399A of the FW Act.

[8] On 14 December 2020 Topdrill filed with Chambers and served on Mr Tudela an application for the matter to be dismissed pursuant to section 399A of the FW Act. Topdrill submitted that the Application should be dismissed pursuant to section 399A on the grounds that Mr Tudela unreasonably failed to attend a conference conducted by the FWC in relation to the Application and failed to discontinue the Application after a settlement agreement was reached (Dismissal Application).

[9] On 14 December 2020 Mr Tudela was invited to file submissions and evidence as to why the Application should not be dismissed by 4pm on Thursday 17 December 2020.

[10] Mr Tudela failed to file any materials by this date or the date of this Decision.

[11] Section 399A of the FW Act provides:

“399A Dismissing applications

(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 other 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.”

[12] Mr Tudela failed to file the materials he was directed to file by the dates specified. Mr Tudela failed to seek an extension to file his materials or provide a reason for failing to do so. As at the date of this decision Mr Tudela has still not filed any materials in opposition to the Dismissal Application. I am satisfied that Mr Tudela has failed to discontinue the Application after a settlement agreement had been reached.

[13] On application of Topdrill and in the exercise of my discretion under section 399A of the FW Act I have decided to dismiss the Application. An order to this effect [PR725876] will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR725875>