Scott Cairns v Rak Ceramics Pty Ltd T/A Rak Ceramics

[2019] FWC 5474

[2019] FWC 5474

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Scott Cairns
v
RAK Ceramics Pty Ltd T/A RAK Ceramics
(U2019/4480)

COMMISSIONER JOHNS MELBOURNE, 16 AUGUST 2019

Application for an unfair dismissal remedy - Section 399A - Dismissing Applications – Failure to discontinue application after a settlement agreement has been concluded - Failure to comply with a direction of the Commission.

[1] On 18 April 2019, Mr Scott Cairns (the Applicant) made an application in the Fair Work Commission (Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act). The Application was made in respect of his employment at RAK Ceramics Pty Ltd (the Respondent/Employer).

[2] The Applicant commenced working for the Respondent in February 2017. On 29 March 2019, the Respondent notified the Applicant of its intention to dismiss the Applicant. The dismissal took effect that same day.

[3] On 17 May 2019, the Respondent lodged a Form F3 in response to the Applicant’s unfair dismissal application.

[4] On 30 May 2019 the parties attended conciliation before a conciliator of the Commission. However, the matter remained unresolved.

[5] On 21 June 2019, the matter was allocated to me. Later that same day, my Chambers sent a notice of listing via email to the parties, listing the matter before me for conference on 26 June 2019 at the Commission in Sydney.

[6] At the conference, the parties resolved the matter. A settlement agreement was drafted and it was signed by both parties in the presence of my Associate.

[7] At the conclusion of the conference my Associate handed the Applicant a Form F50 (notice of discontinuance) to complete and return once the preliminary terms of the settlement agreement had been adhered to.

[8] On 19 July 2019 my Chambers called the Applicant on his mobile phone. The call went unanswered. A voicemail was left asking the Applicant to return the call. An email was also sent later that day to remind the Applicant to file a notice of discontinuance. The Applicant did not respond.

[9] On 30 July 2019 my Chambers sent a further email further the Applicant to file a notice of discontinuance. This email was also sent via Australia Post and delivered on 31 July 2019 to the Applicant’s address nominated on his unfair dismissal application. The Applicant did not respond.

[10] On 7 August 2019, my Chambers received a Form F1 application seeking an order pursuant to s.399A of the FW Act. The Respondent also served this Form F1 application on the Applicant.

[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 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.”

[12] To afford the Applicant with further notice and an opportunity to respond to the Respondent’s s.399A application, my Chambers sent the Applicant a letter via email and Australia Post on 7 August 2019.

[13] The letter of 7 August 2019 (7 August Correspondence) stated,

“We refer to the conference held at the Fair Work Commission (Commission) in Sydney in relation to your unfair dismissal application on Wednesday, 26 June 2019 before Commissioner Johns. At the conference, the parties reached a settlement agreement with the assistance of the Commissioner. The terms of settlement were drafted up and the settlement agreement was signed by both parties at the conference in the presence of Commissioner Johns’ Associate.

At the conclusion of the conference, my Associate handed you a copy of a Form F50 – Notice of Discontinuance. You were requested to complete and return this form to the Commission once the terms of the settlement agreement had been concluded.

On 19 July 2019, my Chambers called you on your mobile to follow up in relation to the return of a completed Notice of Discontinuance. The call was left unanswered and a voicemail was left requesting you to return our call via telephone or email. On 19 July 2019, my Chambers sent you an email reminding you to complete and return to the Commission a Notice of Discontinuance. We have received no response to this email. On 30 July 2019, you were further requested to complete and return to the Commission a Notice of Discontinuance. This email was also express posted to you address nominated on your Form F2 in Zetland, NSW (see enclosed). We have received no response to this email either.

On 7 August 2019 the Respondent made an application pursuant to section 399A of the Fair Work Act 2009 (Cth) (FW Act) to have your unfair dismissal application dismissed (see enclosed).

…

This means the Respondent has applied to have your unfair dismissal application dismissed because you have failed to discontinue your unfair dismissal application after a settlement agreement has concluded.

Commissioner Johns DIRECTS you to lodge with the Commission, and serve on the Respondent a Form F50 – Notice of Discontinuance (see enclosed). Alternatively, Commissioner Johns DIRECTS you to lodge with the Commission, and serve on the Respondent, your reason/s for not filing a Form F50 – Notice of Discontinuance.

You must do this by no later than 4:00 pm on Wednesday, 14 August 2019.”

[14] The 7 August Correspondence was delivered by Australia Post to the Applicant’s address listed on his unfair dismissal application on 8 August 2019.

[15] To date, there has been no response received from the Applicant.

[16] Pursuant to s.399A of the FW Act, the Commission, as presently constituted, dismisses the Applicant’s s.394 application for an unfair dismissal remedy on the basis that the Applicant has unreasonably failed to discontinue his unfair dismissal application after a settlement agreement had been concluded. I am also satisfied that the Applicant has unreasonably failed to comply with a direction of the Commission.

[17] An order [PR711083] giving effect to this decision will be issued simultaneously with this decision.

COMMISSIONER

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