Stewart Aston v The Trustee for RSD Family Trust T/A Bakers Delight Cobram

[2020] FWC 3357

[2020] FWC 3357

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stewart Aston
v
The Trustee for RSD Family Trust T/A Bakers Delight Cobram
(U2019/10707)

COMMISSIONER BISSETT MELBOURNE, 2 JULY 2020

Application for an unfair dismissal remedy.

[1] On 22 September 2019 Mr Stewart Aston (Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). The Applicant advised that The Trustee for RSD Family Trust T/A Bakers Delight Cobram (Respondent) had terminated his employment.

[2] On 28 October 2019 the Commission issued a Notice of Listing to the parties advising the matter was listed for Arbitration Conference/Hearing for 14 – 17 January 2020. Directions to file submissions were issued to the parties.

[3] On 18 November 2019 the Commission contacted the Applicant to advise his submissions were overdue. The Applicant advised that he was in discussions with the Respondent and is awaiting a settlement. The Commission requested that the Applicant make a written request for an extension to file his submissions.

[4] On 19 November 2019 the Commission emailed correspondence to the Applicant’s nominated email address advising his submissions were overdue and requesting he contact the Commission to advise when they would be filed. The Applicant returned this email and requested an extension to file as he was in negotiations with the Respondent. This extension was granted to 28 November 2019.

[5] On 28 November 2019 the Commission attempted to contact the Applicant on his nominated telephone number. A voicemail message was left advising that his submissions were overdue. The Commission also emailed correspondence to the Applicant advising the same and requesting he contact the Commission.

[6] On 29 November 2019 the Commission emailed correspondence to the Applicant advising his submissions were overdue and the matter was at risk of being listed for a Non-Compliance Hearing.

[7] On 3 December 2019 the Commission attempted to contact the Applicant on his nominated telephone number. A voicemail message was left advising that his submissions were overdue and that his matter was at risk of being listed for a Non-Compliance Hearing. The Commission emailed correspondence to the Applicant advising the same.

[8] On 5 December 2019 the Commission issued a Notice of Listing to the parties advising the matter was listed for a Non-Compliance Hearing.

[9] Later that day the Applicant contacted the Commission by telephone to advise that he had signed a deed of settlement and was awaiting the settlement to be finalised. The Commission requested he confirm this advice in writing. Following that phone call, the Applicant emailed the Commission advising that he had come to an agreement with the Respondent and had signed a deed of settlement and sent it to the Respondent.

[10] Following this correspondence the Commission sent two Notices to the parties cancelling the Non-Compliance Hearing and the Arbitration Conference/Hearing. The Notice cancelling the Arbitration Conference/Hearing also advised the Directions to file had been vacated. That Notice advised that the matter remained open with the Commission awaiting a Notice of Discontinuance but if one was not filed after such time the Commission deemed reasonable, the Commission may close the matter by its own initiative.

[11] On 20 December 2019 the Respondent’s representative emailed correspondence to the Commission advising the matter was settled and attaching the deed of settlement signed by both parties dated 29 November 2019.

[12] On 3 January 2020 the Commission emailed correspondence to the Applicant advising that some time had passed since he notified the Commission the matter had settled and no Notice of Discontinuance had been received. That correspondence advised that if the Applicant did not file a Notice of Discontinuance in 2 weeks, the matter may be listed for a Mention before a Member of the Commission. No response to this correspondence was received.

[13] On 30 January 2020 the Commission attempted to contact the Applicant on his nominated telephone number. A voicemail message was left advising the Commission was attempting to confirm if he wished to discontinue his matter. No return call was received.

[14] On 12 May 2020 the Commission again attempted to contact the Applicant on his nominated telephone number. A voicemail message was left advising to return the Commission’s call. The Commission also emailed correspondence to the Applicant advising that since he had advised the Commission his matter had settled, no Notice of Discontinuance had been received. A blank Notice of Discontinuance was provided to the Applicant. That correspondence advised that if no Notice of Discontinuance was received within 2 weeks, the matter may be listed for a Mention before a Member of the Commission.

[15] Later that day the Applicant contacted the Commission by telephone. The Applicant asked why he had received a call. The Commission advised that it was in relation to his unfair dismissal matter and that if it had settled, he could discontinue the application. The Applicant advised he would read the email correspondence the Commission sent. The call was disconnected.

[16] Since that telephone call, the Commission has not had any further contact from the Applicant.

[17] To date, the Applicant has not filed a Notice of Discontinuance with the Commission. Additionally, there has been no correspondence providing an update on the status of this matter nor any assertion that the parties have not reached a binding settlement agreement. In these circumstances, I have decided that attempts to arrange a Mention of the application would be futile.

[18] In the decision of the Federal Court in Australian Postal Corporation v Gorman 1, it was held that if there is a binding agreement in place between the parties, an application for unfair dismissal can be dismissed for having no reasonable prospects of success.

[19] Section 587(1) of the FW Act provides:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

[20] In these circumstances, I am satisfied that the parties reached a binding agreement regarding the Applicant’s application for unfair dismissal. Accordingly, the application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the FW Act. An Order 2 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR720516>

 1 [2011] FCA 975.

 2   PR720517.