Fair Work Act 2009_

s.394 - Unfair dismissal

Application for relief from unfair dismissal - Dismissed pursuant to s.399A of the Fair Work Act 2009.

[1] On 6 November 2013, Mr Peter Hennigan made an application for unfair dismissal remedy in relation to his dismissal under s.394 of the Fair Work Act 2009.

[2] The matter was the subject of conciliation on 18 December 2013. The matter did not settle, however, Rocla Pty Ltd T/A Rocla Pipeline Produces (Rocla) kept its settlement offer, made at conciliation, open to Mr Hennigan until 20 December 2013.

[3] Following further communications and negotiations between the parties, Mr Hennigan and Rocla agreed to settle the matter. On 23 December 2013, a Deed of Release (the Deed) was executed by Mr Hennigan.

[4] On 2 January 2014, Rocla complied with the Deed and made payment to Mr Hennigan as agreed to in the Deed.

[5] Amongst other things, the Deed sets out the agreement between Mr Hennigan and Rocla. The Deed obliged Mr Hennigan to file a notice of discontinuance within seven days of the receipt of settlement monies.

[6] On 9 January 2014, Mr Hennigan emailed the Fair Work Commission (the Commission) and advised that he will not be filing the Notice of Discontinuance and requested that his application proceed to a hearing.

[7] Rocla provided Mr Hennigan with a further opportunity to file a Notice of Discontinuance. He did not do so. On 5 February 2014, Rocla filed an application to have the matter dismissed pursuant to ss.399A(1)(c) and s.587 of the Act in addition to an application for costs pursuant to s.400A of the Act.

[8] I convened a hearing in relation to Rocla's applications on 12 February 2014. Mr Hennigan did not appear at the hearing. Prior to the commencement of the hearing, my Associate attempted to contact Mr Hennigan by telephone without success. I note that on 10 February 2014, the Commission contacted Mr Hennigan to confirm his attendance at the hearing. Mr Hennigan advised that he had not yet received the listing notice, however, indicated that he would be attending the hearing in Adelaide. Mr Hennigan made no contact with the Commission advising that he was unable to attend and asking that the matter be adjourned.

[9] At the hearing, Rocla's representatives made submissions in respect of their applications in addition to satisfying my enquiries as to whether their applications and supporting affidavits were served on Mr Hennigan.

[10] I am satisfied that Mr Hennigan had notice of the hearing and therefore, I have decided to determine the matter in his absence.

[11] Taking into consideration the material before me, I am satisfied that Mr Hennigan and Rocla made a settlement agreement and that Mr Hennigan failed to discontinue the application after a settlement agreement had been concluded.

[12] It is for these reasons that I determined that the application for relief from unfair dismissal, filed by Mr Hennigan, be dismissed pursuant to s.399A(1)(c). An order to this effect will be issued. As such, it is not necessary to consider the application made under s.587 of the Act.

Printed by authority of the Commonwealth Government Printer