s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - settlement agreement - application dismissed

• [1] On 23 April 2025, Neil Jones filed an application for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009.[1] He alleged that he was unfairly dismissed by Lockie Rose.

• [2] On 6 June 2025, I conducted a conciliation conference during which the parties agreed on terms to resolve the proceedings. I adjourned the proceedings until 20 June 2025 to allow the parties time to implement the settlement and, following that, for Mr Jones to discontinue the matter. On the same day, I arranged for Terms of Settlement reflecting the parties' agreement to be sent to the parties.

• [3] On 16 June 2025, my Chambers received emails from each of the parties attaching a copy of the Terms of Settlement signed by them.

• [4] On 7 and 25 July 2025, my Chambers sent correspondence to Mr Jones enquiring as to when we could expect a notice of discontinuance. On 25 July 2025, Mr Jones responded: "Haven't received funds yet." I arranged to have that email forwarded to Mr Rose for a response. We did not receive a reply.

• [5] Although the parties had reached an agreement to settle the matter, in the absence of Mr Rose seeking to have the proceedings dismissed I determined to list the matter for a mention. It was my hope that I could facilitate the finalisation of the settlement, if that had not already occurred. Accordingly, on 8 August 2025 the parties were informed that a mention would take place at 2.00pm on 15 August 2025. Neither party attended that mention.

• [6] On 20 August 2025, my Chambers sent a further email to Mr Jones, directing him to inform Chambers by 4:00pm on 20 August 2025 whether he wished to discontinue or progress the matter. We received no response.

• [7] On 26 August 2025, my Chambers sent another email to Mr Jones informing him that I proposed to dismiss his application pursuant to section 587. He was invited to provide submissions by 4.00pm on 2 September 2025 as to why his application should not be dismissed. Mr Jones responded on the same day stating that he wished to proceed with the matter.

• [8] I assumed from Mr Jones's email that the settlement had not been effected. Certainly, Mr Rose made no application to have the matter dismissed on the basis that the matter had been settled. Accordingly, I determined not to dismiss the proceedings. On 27 August 2025, the parties were informed by email that I intended to make directions in the matter. We received no response from either of them.

• [9] I issued directions on 1 September 2025. Mr Jones did not comply with them.

• [10] On 17 September 2025, my Chambers sent an email to the parties informing them that the matter was listed for a non-compliance hearing on 19 September 2025. The email stated that the purpose of the listing was to give Mr Jones an opportunity to explain his non-compliance with the directions and possibly to determine whether the application should be dismissed pursuant to section 587. Neither party attended the non-compliance hearing on 19 September 2025.

• [11] On the same day, my Chambers sent an email to the parties informing them that I proposed to dismiss the application pursuant to section 587. Mr Jones was invited to make submissions by 26 September 2025 as to why his application ought not be dismissed. We have received no response to that email.

• [12] To my mind, I have given Mr Jones every opportunity to progress his application, despite the settlement reached on 16 June 2025. In hindsight, I was unwise to do so.

• [13] Section 587(1)(c) empowers the Commission to dismiss an application if it has no reasonable prospects of success. It is a power that must be used with caution.[2]

• [14] A binding settlement agreement extinguishes the cause of action in a proceeding and replaces it with a new one based on the agreement.[3] (In the context of the current matter, that means that the cause of action under section 394 is extinguished and replaced with a cause of action to enforce the settlement agreement.) The continued pursuit of an application based on an extinguished cause of action "is clearly capable of being considered...without reasonable prospects of success".[4]

• [15] Given the history outlined above, I find that the parties reached a binding settlement agreement on 16 June 2025. That agreement extinguished Mr Jones's cause of action in these proceedings. It follows that his application has no reasonable prospects of success.

• [16] Pursuant to section 587(1)(c), the application is dismissed.

[1] All legislative provisions referred to in this decision are references to provisions of the Fair Work Act 2009.

[2] Alan Geoffrey Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [16(a)]

[3] Australian Postal Corporation v Gorman [2011] FCA 975 at [31] and [33], applied, for example, in Samantha Foster v Link-Up (N.S.W) Aboriginal Corporation [2025] FWC 2527 at [51]

[4] Australian Postal Corporation v Gorman [2011] FCA 975 at [33]

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