Scott Shaw v ITW Australia Pty Ltd T/A Ramsetreid

[2018] FWC 1306

[2018] FWC 1306

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Scott Shaw
v
ITW Australia Pty Ltd T/A Ramsetreid
(U2017/1924)

DEPUTY PRESIDENT CLANCY MELBOURNE, 5 MARCH 2018

Application for an unfair dismissal remedy.

[1] On 23 February 2017, Mr Scott Shaw made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Shaw said that his employment had been terminated by ITW Australia Pty Ltd T/A Ramsetreid (Ramsetreid) on 13 February 2017.

[2] The matter was the subject of conciliation on 29 March 2017, at which the parties agreed to a settlement.

[3] On 29 January 2018, Ramsetreid filed an application under s.399A(1)(c) of the Act, that the matter be dismissed as Mr Shaw had failed to discontinue his unfair dismissal application after settlement had been concluded.

[4] Ramsetreid submits the parties had agreed to settle the claim on 29 March 2017, however Mr Shaw had failed to execute the Deed of Settlement and Release (the Deed) until 12 November 2017. Ramsetreid subsequently executed the Deed on 30 November 2017 and the Commission has been advised that the agreed settlement sum was paid to Mr Shaw on 1 December 2017. Ramsetreid attached copies of the executed Deed to its s.399A application.

[5] Ramsetreid submits that it has now complied with all of its obligations under the Deed, however, Mr Shaw who was required to file a Notice of Discontinuance within two business days of executing the Deed, has not done so. Ramsetreid submits that they contacted Mr Shaw regarding the filing of the Notice of Discontinuance on 5 December 2017 and 9 January 2018 but received no response.

[6] On 13 February 2018, the Commission wrote to Mr Shaw seeking any submissions from him regarding Ramsetreid’s application under s.399A(1)(c). This correspondence stated that the matter would be determined on the material before the Commission if he failed to respond by 4.00pm on 21 February 2018.

[7] On 21 February 2018, Mr Shaw responded to the Commission’s correspondence by stating that he did not understand the request for submissions and believed the matter to be closed. The Commission wrote to Mr Shaw clarifying the reason it was requesting submissions and stated that if he failed to reply, the application would be decided on the material before the Commission. This correspondence included a reference to the settlement sum having been paid on 1 December 2017. Mr Shaw was again asked that he respond by 4.00pm on 21 February 2018, however he failed to do so.

[8] Section 399A of the Act provides as follows:

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.

....

(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.

[9] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[10] As Mr Shaw did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[11] On review of the material, I am satisfied Mr Shaw concluded a settlement agreement with Ramsetreid and that Ramsetreid complied with its obligations under the Deed. I am also satisfied Mr Shaw has unreasonably failed to discontinue his unfair dismissal application. Apart from initially advising that he thought the matter had closed, Mr Shaw has provided no explanation for his failure to do so. In these circumstances, I am persuaded that I should exercise my discretion under s.399A(1)(c) of the Act and dismiss Mr Shaw’s application. This will deliver finality to the parties. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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