Zachary O'Donnell v Melbourne Star Chauffeured Cars

[2020] FWC 4054

[2020] FWC 4054

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Zachary O’Donnell
v
Melbourne Star Chauffeured Cars
(U2020/2336)

COMMISSIONER BISSETT MELBOURNE, 4 AUGUST 2020

Application for an unfair dismissal remedy.

[1] On 28 February 2020 Mr Mitchell Angel (the 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 his employment with Melbourne Star Chauffeured Cars (the Respondent) was terminated.

[2] After an unsuccessful conciliation conference on 31 March 2020 the matter was listed for Arbitration Conference/Hearing on 29 June to 1 July 2020.

[3] On 22 May 2020 the Applicant’s representative emailed correspondence to the Commission advising that the parties had continued negotiations since the conciliation conference and had reached an in principle settlement agreement.

[4] On 25 May 2020 the Commission dispatched an amended Notice of Listing to the parties that advised while the matter remained open, the Conference/Hearing dates and the directions to file submissions were vacated as the Applicant’s representative had advised the parties had reached an in principle settlement agreement. That Listing also advised that the matter would remain open until a Notice of Discontinuance was filed with the Commission.

[5] On 16 June 2020 the Commission emailed correspondence to the Applicant’s representative advising that some time had passed since they had advised of the in principle settlement agreement and no Notice of Discontinuance had been filed. The correspondence advised the Notice of Discontinuance was necessary to ensure eligibility for a refund could be assessed and so that the matter could be closed. The Respondent’s representative was carbon copied into this correspondence. On 17 June 2020 the Applicant’s representative emailed correspondence to the Commission advising that a Notice of Discontinuance would be filed in due course.

[6] On 13 July 2020 the Commission emailed correspondence to the Applicant’s representative advising that some time had passed since they had advised of the in principle settlement agreement and no Notice of Discontinuance had been filed. The correspondence advised the Notice of Discontinuance was necessary to ensure eligibility for a refund could be assessed and so that the matter could be closed. The Respondent’s representative was carbon copied into this correspondence. No response was received.

[7] On 15 July 2020 the Commission attempted to contact the Applicant’s representative by telephone to enquire about the Notice of Discontinuance. There was no answer.

[8] To date, neither the Applicant nor their representative have 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.

[9] 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.

[10] 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.

[11] Given the information provided by the parties to date and the more recent inability to contact the Applicant or Applicant’s representative I am satisfied that the parties reached a binding agreement in settlement of 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

 1 [2011] FCA 975.

 2   PR721496.

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