Sophie Hammond v Super Woolstore Pty Ltd T/A the Old Woolstore Apartment Hotel
[2022] FWC 1737
•6 JULY 2022
| [2022] FWC 1737 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sophie Hammond
v
Super Woolstore Pty Ltd T/A The Old Woolstore Apartment Hotel
(U2021/6248)
| COMMISSIONER BISSETT | MELBOURNE, 6 JULY 2022 |
Application for an unfair dismissal remedy – s.399A(1)(c) application to dismiss – application granted – matter dismissed.
On 16 July 2021 Ms Sophie Hammond (the Applicant) made an application to the Fair Work Commission (Commission) for an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act). Ms Hammond alleged she was unfairly dismissed by Super Woolstore Pty ltd T/A The Old Woolstore Apartment Hotel (the Respondent) on 28 June 2021.
The application was subject to staff conciliation on 5 August 2021 during which the matter settled. Correspondence to this effect, enclosing the Terms of Settlement, was issued to the parties on this date. That correspondence provided the parties with a cooling off period of three business days, to expire by close of business 10 August 2021 after which the file would be closed unless either party withdrew. As neither party opted to withdraw from the agreement during the cooling off period the file was closed on 11 August 2021.
On 8 June 2022 the Respondent’s representative wrote to the Commission advising that the Applicant had not filed with the Commission and served on the Respondent a Form F50 Notice of Discontinuance pursuant to a clause of the agreement. The Respondent requested that the matter be dismissed in accordance with s399A(1)(c) of the FW Act on the basis that the Applicant had unreasonable failed to discontinue their application after a settlement agreement had been concluded.
On 15 June 2022 my chambers wrote to the Respondent representative. In that correspondence I waived compliance with Rule 6 of the Fair Work Commission Rules 2013 and accepted the letter of 8 June 2022 as a valid application to dismiss the matter pursuant to s.399A(1)(c) of the FW Act. That day correspondence was emailed to the Applicant, attaching the Respondent’s letter of 8 June 2022. The Applicant was informed of the s399A application and provided with the relevant section of the FW Act. The correspondence further advised the Applicant:
The Commissioner is considering dismissing your application as it appears that you have unreasonably failed to discontinue your matter following the conclusion of your settlement agreement. Prior to the Commissioner making a decision you are invited to:
1. File any submission you may wish to make as to why the Commission should not dismiss your application; or
2. Complete and return the attached Form F50. If you return this form the application will be formally closed.
Commissioner Bissett requires your response by 4.30pm Monday 20 June 2022. Should you fail to provide any response the Commissioner will issue a decision without any further correspondence.
The Applicant was also sent a blank Form F50 so that it may be filed with the Commission
To date there has been response from the Applicant.
Section 399A of the FW 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.
Section 593 of the FW Act provides that the Commission is not required to hold a hearing except as provided by the FW Act. As the Applicant did not file any material in opposition to the application to dismiss, I will determine the application on the papers.
The power to dismiss an application if an applicant has failed to discontinue an application after a settlement has been concluded is discretionary. The Applicant has failed to file a Form F50 and has not provided an explanation to the Commission for this omission.
In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss the Applicant’s application. An order[1] to this effect will be issued separately to this decision.
COMMISSIONER
[1] PR743387
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