An officer of the Union advised the Commission that the Deed was still awaiting execution.

An email was sent to the Union in the following terms:

You advised on 5 August 2013, via email that parties have reached an principle settlement agreement and that pending settlement a discontinuance would be filed.

If you do not file a Notice of Discontinuance, as required by the Fair Work Australia Rules 2010, within a reasonable timeframe, the Panel head for Termination of Employment will issue a Decision as to whether the application should be dismissed.

This Decision will be published on the Fair Work Commission website.

A Notice of Discontinuance has been attached for your convenience.

The applicant advised the Commission by telephone that he had never accepted a settlement and would like to proceed with the matter. He was directed to put this request in writing. The applicant asked about legal advice and was given a telephone number for Law Access NSW.

The applicant sent an email asking that matter be relisted (see para [12]).

The respondent's representative advised the Commission by telephone that it opposed the application being reopened.

The applicant advised the Commission, by telephone that he would be overseas until March and would be contactable by email during this period.

The respondent's representative confirmed in an email to the Commission that the claim was settled on 5 August 2013 and that it would oppose any application to reopen or reagitate the matter. This email was forwarded to the applicant.

Mr Guy of the TWU advised the Commission by telephone that it was aware that the applicant was seeking to have his application heard. However, the Union had not been able to contact the applicant. Mr Guy had received advice that the matter had settled, but could not provide further details.

The TWU filed a Notice that it no longer acted for the applicant.

An email was sent from the Commission to the applicant in the following terms:

'I refer to your request for the above matter to proceed to Arbitration Conference/Hearing.

Your request has been considered by Deputy President Gooley, Termination of Employment Panel Head at the Fair Work Commission.

Deputy President Gooley has advised that this matter will next proceed to a Mention hearing to determine whether or not settlement was reached between the parties, and an appropriate future direction for the matter.

I understand from recent correspondence that you are currently overseas. Please advise of your availability to attend a telephone Mention hearing (i.e contact phone number, preferred time and date etc) and when you will be returning to Australia. The information you provide will enable the Commission to make suitable arrangements for the Mention.'

An email was sent from the Commission to the applicant asking him to respond to the email of 11 February 2014.

The applicant asked to speak to the officer of the Commission's Unfair Dismissal Team with carriage of his file.

The applicant advised by telephone that he had returned to Australia. He was again advised that the question of whether his matter would proceed would be determined at a mention. The applicant advised that he was available at any time and date and indicated a preference for the mention to be conducted in person. He apologised for not being available previously.

Two voicemails were left for the applicant to confirm whether he wished the mention to go ahead.

A voicemail was left for the applicant to contact the Commission. An email attaching a Notice of Discontinuance was forwarded to him.

The applicant forwarded an email to the Commission (see para [3]).

At this point, the matter was allocated to me for determination.

Was there ever a settlement of the applicant's claim?

[29] There can be no doubt that at the time Mr Guy advised the Commission of the 'in principle' settlement of the matter, that the Union, and Mr Guy specifically, were acting for, and on behalf of the applicant. On 1 August 2013, Mr Guy sent an email to this effect to Mr Chadwick (see para [8]). It would appear that Mr Guy continued to represent the applicant up to a notice of ceasing to act, filed on 4 February 2014.

[30] Similarly, there can be no doubt that the applicant was advised on 6 August 2013 of the cancellation of the hearing because of 'a settlement agreement'. He waited a full month (4 September 2013), before contacting the Commission to advise that he did not agree to the cancellation of the hearing.

[31] Relevantly, there was no advice to the Commission that Mr Guy no longer acted for him or that he intended to obtain alternative representation or conduct the hearing himself. Until 4 September 2013, the Commission had no reason to believe that the matter had not been settled. This delay for a month, sits rather uncomfortably with the applicant's insistence that he had always wanted to pursue his unfair dismissal application, despite Mr Guy's alleged 'pressure' on him to sign the Deed of Release. I shall come back to this matter later.

[32] Given that Mr Guy had, presumably on the applicant's instructions, formally advised the Commission and the employer of an 'in principle' agreement and that Mr Guy continued to represent the applicant, it is not open for the applicant to claim that no settlement was reached. So much so must be the case, given the conclusions in Masters v Cameron, where it is said at page 360:

'Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three classes. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.'

[33] The applicant put much reliance on the fact that he had not signed the terms of settlement and therefore it could not be binding upon him. However, this submission is misconceived, as a plain reading of Masters v Cameron makes clear. A lack of formal signing of terms of settlement does not alter the legal position of a settlement having been reached, in accordance with the understandings reached between the parties. Bissett C, in McKinnon v Eventide, dismissed an unfair dismissal application in circumstances where the parties had reached an agreement and the applicant later decided not to sign the agreement. At para [48], the Commissioner said:

'[48] The question of whether or not there was a binding agreement reached between the parties is a matter of fact. Even though the Applicant did not sign the agreement arising from conciliation this does not mean that a binding agreement was not reached. The question to be determined is if any agreement of the types described in Masters v Cameron was reached between the parties in conciliation. If the agreement reached is of the first or second category it would, following Masters v Cameron, be a binding agreement [endnote omitted].'

In the present case, I am satisfied that there was an 'in principle' agreement to settle the claim and there is no reason why that settlement should not be the end of the matter.

[34] It must be stressed that this is not a case of an unrepresented applicant being confused or uncertain as to his or her rights under the agreement. The agreement does not appear to be unduly complicated and in any event, the applicant was at all material times represented by an official of the TWU. In these circumstances, as the agreement between the parties is a complete answer to the claim, the claim must have no reasonable prospects of success.

[35] In Howey v Mars, I said at paras [75] and [96]:

'[75] The authorities make plain that the existence of a binding settlement between parties, permits a conclusion that an application should be dismissed on a summary basis, or as Besanko J described in Australian Postal Corporation v Gorman as 'a valid and effective accord and satisfaction' which 'extinguishes the pre-existing cause of action'. In addition, I respectfully agree with Gooley C's comments in Tomas v Symbion Health at para 59:

'In this matter I find that section 587 employers Fair Work Australia to dismiss an application for relief in circumstances where the parties have reached a binding agreement settling a claim and one party reneges on that agreement and seeks to have their claim determined. It is not necessary to make a finding that the application is frivolous or vexatious or that the application has no reasonable prospects of success as section 587 provides Fair Work Australia with a broad discretion to dismiss an application.'

[96] It follows, that I am comfortably satisfied that the agreement was a binding settlement reached between the parties and was a complete answer to the claim. In addition, I conclude that the interests of justice and the principle of a 'fair go all round' would not be served by voiding the binding settlement.'

[36] Accordingly, pursuant to s 587(1)(c) of the Act, the Commission determines that this application, having no reasonable prospects of success, must be dismissed.

[37] While not strictly necessary to make preliminary findings as to the merits of the applicant's case, in the materials filed, there is nothing to suggest that the numerous instances over a number of years of the applicant arriving late for work and not advising Veolia of his lateness, did not occur. Nor was it disputed that the applicant had received a number of written warnings for his lateness. Given these were the main reasons for the applicant's dismissal, it is possible - although I stress on a prima facie basis only - to conclude the applicant's prospects of success with his claim of unfair dismissal, are not great.

[38] That said, in my opinion, s 399A sets out another discrete power of the Commission under the Act's unfair dismissal regime, which could be invoked in this case. The section is expressed as follows:

(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 [my emphasis].

[39] As I am satisfied that the applicant unreasonably failed to discontinue the application after a settlement agreement had been concluded, I would also dismiss this claim, pursuant to s 399A(1)(c) of the Act.

[40] However, even if I be wrong on the above two bases, I would also dismiss this application on the following grounds.

Did the applicant fail to prosecute his claim in a timely manner?

[41] Section 577 of the Act requires the Commission, in the exercise of its powers and functions to do so in a manner that:

(b) is quick, informal and avoids unnecessary technicalities; and

(d) promotes harmonious and cooperative workplace relations [my emphasis].

[42] There are obvious practical and logistical reasons why matters such as this should be conducted as quickly as possible. These include the employer's entitlement to arrange its workforce or recruit a new employee, so as to minimise any dislocation to the business caused by an employee's dismissal.

[43] In order to facilitate the above objective, it is incumbent on the person who initiates proceedings, to prosecute their case within reasonable time constraints. Of course, this does not mean that extraneous factors or delays caused by other parties, will be the fault of an otherwise diligent litigant. However, where there are large slabs of unexplained inactivity in pursuing one's claim, then it may result in the Commission dismissing the matter, based on a failure to diligently prosecute the case. So it is here.

[44] The applicant was dismissed over two and a half years ago. While not all of this time can be attributed to delays caused by the applicant, there are periods of many consecutive months where the applicant failed to inquire as to the progress of his application or comply with a request to advise, in writing, why he wished to pursue his application after the hearing dates were vacated. He was advised of this on 4 September 2013 and again on 18 December 2013, but put nothing, in writing, until 4 January 2014, some four months after being first advised to do so. There was no explanation as to why he did not do so during this time.

[45] I note that the applicant was overseas for the first three months of 2014. Notwithstanding that the applicant had been told on 11 February 2014 that his application would be listed for mention and, presumably he was waiting for a listing, a file note of 17 December 2014 records that the Commission had attempted to contact him by email and phone, numerous times, with no response. The first unanswered phone message was left by the Commission on 11 June 2014. There appeared to be no further action taken by the applicant to pursue his case, let alone make any inquiry as to the progress of his case until 15 December, a period of 6 months.

[46] In my view, the respondent would experience significant prejudice if this application is allowed to progress, given the length of time since the applicant's dismissal (2� years) and the significant periods of inactivity, on the applicant's part, in progressing his claim. That this is a sound basis for dismissing the application is supported by the decision of the Australian Industrial Relations Commission (as the Commission then was) in Chand v State Rail, where it was said at para [48]:

'[48] The classic circumstances that enliven a court's discretion to dismiss an action for want of prosecution are a failure, typically a repeated failure, by a plaintiff to comply with directions of the court or a prolonged period of inactivity on the part of a plaintiff.'

[47] Section 587 of the Act provides a wide discretion to the Commission to dismiss an application on grounds which are common to other courts and tribunals. There is no doubt that one such ground is the failure of an applicant to prosecute his/her case in a timely manner, that is, with due diligence. In my view, this is one such case. To the extent necessary, I make such a finding under ss 587(1) and (3) of the Act.

[48] For the reasons earlier stated and in order to ensure a 'fair go all round' (s 381(2) of the Act), I am satisfied that this unfair dismissal application should be dismissed. Orders to that effect will accompany the publication of this decision.

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