Timothy David Cummings v Unisson Disability Limited
[2022] FWC 50
•13 JANUARY 2022
| [2022] FWC 50 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Timothy David Cummings
v
Unisson Disability Limited
(U2021/8462)
| DEPUTY PRESIDENT EASTON | SYDNEY, 13 JANUARY 2022 |
Application for an unfair dismissal remedy - s.399A application to dismiss - application granted.
On 20 September 2021 Mr Cummings made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging he had been unfairly dismissed from his employment.
At a telephone directions hearing on 26 November 2021, the parties indicated that they would consent to attending a conciliation to explore the possibility of settling the matter.
The matter was listed for a telephone conciliation conference on 2 December 2021. At the start of the conciliation conference, Mr Tim Capelin of Piper Alderman Lawyers advised that the matter had settled and the terms had been reduced to writing. The Applicant was to file a Notice of Discontinuance (Form F50) after payment had been made (seven days).
Emails were sent to parties on 15 December 2021, 23 December 2021 and 4 January 2022 requesting an update in the progress of the matter and requesting that Mr Cummings file a Notice of Discontinuance. SMS were also sent to Mr Cummings’ mobile number on 24 December 2021, 5 January 2022 and a telephone call was made to Mr Cummings on 6 January 2022 after the Form F1 application was served and Directions were issued.
To date, Mr Cummings has not responded to any of the Commission’s emails since 24 November 2021.
On 5 January 2022 Unisson Disability Limited (“Unisson Disability”) confirmed that the matter had settled and filed a copy of the Release Agreement signed by both parties. Unisson Disability also confirmed that it has met its obligation under the Release Agreement and requested that “…should the Applicant not have filed the Notice of Discontinuance by the time of this email, the Deputy President take this email as an Application under s399A(1)(c) and dismisses the Application within 7 days…”.
Unisson Disability was invited to formally make an application on a Form F1. On 6 January 2022 Unisson Disability filed a Form F1 application for the Commission to exercise its powers under s.399A to dismiss the proceedings. The Form F1 was accompanied by a proof of payment receipt. A copy of the application was sent to Mr Cummings and directions were issued the same day.
The directions required Mr Cummings to file any submissions he wishes to make in response to Unisson Disability’s s.399A dismissal application by no later than 4:00pm on 10 January 2022, and Unisson Disability to file any witness statements and any other documentary material in reply to the Applicant’s materials by no later than 4:00pm on 11 January 2022. Mr Cummings was put on notice that should be not file any submissions or material in relation to the s.399A application, the Commission would proceed to determine the application on the material before it, which may result in the dismissal of his claim for an unfair dismissal remedy.
In the telephone call of 6 January 2022 Mr Cummings advised that he had been “off the grid” and had not had an opportunity to close off the matter but confirmed he had received correspondence from the Commission.
Mr Cummings did not file any material by 10 January 2022 and Unisson Disability did not file any further evidence.
Section 399A of the 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.
…
(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.”
The relevant principles to consider Unisson Disability’s application under s.399A were helpfully summarised in Lockyear v Graeme Cox [2021] FWCFB 875 at [57]:
“[57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:
1. An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.
2. The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.
3. The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.
4. In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.
5. A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.”
(footnotes omitted)
In the s.399A application there are no facts in dispute that require the Commission to conduct a hearing to determine Unisson Disability’s application (per s.397).
There is evidence of a Release Agreement before me, which appears on the face of it to have been entered into and executed by Mr Cummings and Mr Miso Mitric, an authorised representative of Unisson Disability.
Clause 3 of the Release Agreement releases Unisson Disability from all claims and liabilities and is set out below:
“3. Employee’s obligations
3.1 In consideration of the Benefits, the Employee releases absolutely and discharges the Group from all Claims, arising in any way concerning or in the course of, or arising out of:
(a)the Employment;
(b)the Termination;
(c)the Resignation;
(d)the Proceedings;
(e)discrimination or harassment of any kind; or
(f)any entitlement under an industrial instrument or industrial law (however described).
that the Employee has had, has now, or (but for the execution of this Agreement) may have in the future (except for any Claim that may arise under workers compensation or superannuation legislation).
3.2 The Employee agrees and accepts that the provision of the Benefits are in full and that final satisfaction of any entitlement that the Employee may have under any statute, industrial instrument (including an award or enterprise agreement), any incentive or bonus payment scheme, or any other entitlement whether existing at common law, in equity or otherwise, arising out of the Employment, the Resignation or the Termination.
3.3 Within 7 days of receipt of the Benefits, the Employee will file with the Fair Work Commission a Notice of Discontinuance in relation to the Proceedings (as per Annexure B), and provide a copy of that Notice to the Employer.”
I accept Mr Capelin’s advice that the settlement monies was paid to Mr Cummings on 14 December 2021 in accordance with the Release Agreement. Mr Cummings was to file a Notice of Discontinuance on or before 21 December 2021.
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 have determined the application on the papers.
On the basis of the information before me, it is appropriate to exercise my discretion to dismiss Mr Cummings’ application pursuant to s.399A(1)(c) of the FW Act. An Order[1] to this effect will be issued.
DEPUTY PRESIDENT
[1] PR737465.
Printed by authority of the Commonwealth Government Printer
<PR737464>
0