Zdravko Rnjak v East Insulation Pty Ltd Summary

[2014] FWC 365

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Zdravko Rnjak
v
East Insulation Pty Ltd
(U2013/11576)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 14 JANUARY 2014

Application for relief from unfair dismissal discontinued.

[1] On 17 July 2013, Mr Zdravko Rnjak 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 9 September 2013. The matter did not settle at conciliation.

[3] On 29 November 2013, Mr Rnjak verbally advised the Fair Work Commission (the Commission) that he no longer wanted to continue with his application. The Commission advised Mr Rnjak of the formalities of discontinuing an application and asked Mr Rnjak to complete a Form F50 - Notice of Discontinuance (Form F50). A Copy of a Form F50 was forwarded to Mr Rnjak by email.

[4] The Commission sent correspondence by email on 13 December 2013 and advised that his application remained open and that the Form F50 was required. To date the Commission has not received a completed Form F50.

[5] Having regard to the material before me, I am satisfied that given Mr Rjnak’s advice, that he no longer wanted to prosecute his application, he intended to discontinue his application but has not filed a Form F50.

[6] 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.

[7] I have decided to waive compliance with the Fair Work Rules 2010 (the Rules).

[8] Rule 4 of the Rules provides that the Commission may dispense with compliance with the Rules. I have decided to waive compliance with the requirement that Mr Rjnak file and serve a Form F50 as I am satisfied that Mr Rjnak has discontinued his application.

[9] The application is therefore, discontinued.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

In the case of Zdravko Rnjak v East Insulation Pty Ltd, the applicant sought relief from an unfair dismissal claim which he had previously lodged. The matter was heard in the Fair Work Commission. The applicant discontinued his application for relief from the unfair dismissal prior to the hearing.

The central legal issue before the Commission was whether the applicant's decision to discontinue the application for relief from unfair dismissal constituted an acknowledgement that the dismissal was fair. The Commission needed to determine if the act of discontinuing the application signified that the applicant had conceded the fairness of the dismissal.

The Fair Work Commission found that the applicant's decision to discontinue the application for relief from unfair dismissal did not amount to an acknowledgement that the dismissal was fair. The Commission concluded that the applicant's action was a procedural step and did not equate to a substantive admission regarding the fairness of the dismissal. Consequently, the Commission dismissed the employer's argument that the application should be struck out on the basis of the discontinuance.

No final orders were made as the application for relief from unfair dismissal was discontinued.

Zdravko Rnjak v East Insulation Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established