Steven Whitelock v Catholic Parish Our Lady of the Rosary

[2013] FWC 7841

[2013] FWC 7841

The attached document replaces the document previously issued with the above code on 9 October 2013.

Please note that the paragraph numbering has been corrected.

Katrina Alviano

Associate to Deputy President Gooley

Dated: 10 October 2013

[2013] FWC 7841

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Whitelock
v
Catholic Parish Our Lady of the Rosary
(U2012/15988)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 9 OCTOBER 2013

Application for relief from unfair dismissal.

[1] On 26 November 2012, Mr Steven Whitelock 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 21 December 2012, however did not settle. The matter was listed for hearing and Mr Whitelock was directed to file his submissions and witness statement by 27 May 2013.

[3] On 4 June 2013, the representative of Catholic Parish Our Lady of the Rosary emailed the Fair Work Commission (the Commission) advising that the matter had resolved and that a Notice of Discontinuance should be filed by Mr Whitelock.

[4] On 18 June 2013, the Commission contacted Mr Whitelock to enquire whether the mater had settled. Mr Whitelock confirmed that the matter had settled and advised that he would not be filing a Form F50 - Notice of Discontinuance (Form F50). The Commission advised Mr Whitelock that a completed Form F50 was required to formally close the file.

[5] On 6 June 2013, the Commission sent email correspondence to Mr Whitelock attaching a Form F50. To date the Commission has not received a completed Form F50.

[6] On 20 September 2013, Catholic Parish Our Lady of the Rosary filed an application pursuant to s.399A of the Act to have the matter dismissed given that Mr Whitelock had not discontinued his application.

[7] 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.

[8] Section 399A of the Act came into effect on 1 January 2013 by the Fair Work Amendment Act 2012 (the Amendment Act). At Schedule 11 of the Amendment Act it provides that s.399A powers are only applicable to unfair dismissal applications that were made after the Amendment Act came into effect (being 1 January 2013).

[9] As Mr Whitelock was dismissed prior to this date, I must dismiss the application made under s.399A of the Act.

[10] However, having regard to the facts before me, I am satisfied that Mr Whitelock no longer wishes to pursue his application.

[11] 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.

[12] Rule 4 of Fair Work Rules 2010 (the Rules) provides that the Commission may dispense with compliance with the Rules.

[13] I have decided to waive compliance with the requirement that Mr Whitelock file and serve a Form F50 as I am satisfied that Mr Whitelock has discontinued his application.

DEPUTY PRESIDENT

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