s.394 - Unfair dismissal

Application for an unfair dismissal remedy - s.399A application to dismiss - has the applicant "failed" to discontinue their application - satisfaction of statutory criteria - application under s.399A rejected - settlement at staff conciliation - discretion under s.587(1) - procedural fairness - no reasonable prospects of success - application dismissed under s.587.

• [1] On 27 April 2025 Mr Stewart made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) for a remedy, alleging that he had been unfairly dismissed from his employment with the Department of Finance (Department).

• [2] The matter was listed for a conciliation before a Staff Conciliator on 23 June 2025. The Commission's records indicate that the matter settled at conference and the Staff Conciliator sent a letter following the conference in the following terms:

"Thank you for your participation in today's conciliation in the above case. I confirm that you reached a settlement agreement and that the terms of settlement are to be sent out by Ashley Sherr, on the Respondent's behalf. I confirm that the matter has settled with the substantive elements of the agreement being:

As discussed, a three-day cooling off period now applies. I will hold the file for three business days to allow you (the parties) time to consider the agreement reached at conciliation. Unless I hear from either of you in writing by the close of business Thursday 26 June, the case is resolved in the terms attached and I will close the file accordingly. If one of the parties does not want to proceed with the settlement and advises me during the cooling off period, I will refer the case for arbitration before a Member of the Commission. Visit our website to find out more about the process for unfair dismissal claims.

As this is an agreement reached between the parties, you must send your signed terms to the other party. Do not send a copy to the Commission as we do not keep any record of your signed agreement. You should however keep a signed copy of the agreement for your records. Any resignation or statement of service (if applicable) should be sent directly to the relevant party, not to the Commission.

• [3] Neither party contacted the Conciliator and the file was closed on 27 June 2025.

• [4] On 21 August 2025 the Department wrote to the Commission in the following terms:

"... A binding settlement was reached between the parties during the conciliation conference held on 23 June 2025. The agreed terms of settlement were set out in a Deed of Settlement and Release (Deed), and sent to the applicant by email on 27 June 2025 (after the cooling-off period had passed).

Despite a number of follow-up emails to Mr Stewart, we have not received a response from him, including that he has not signed and returned the Deed. In addition to our email dated 27 June, we sent emails dated 3 July, 18 July and 7 August 2025 to the applicant seeking a return of a properly executed Deed. The applicant has not responded to any of our emails.

In our email dated 7 August 2025, we confirmed for the applicant that a binding agreement had been reached between the parties, which included the applicant providing a full release in favour of the respondent. We also advised that if we did not receive a signed copy of the Deed by no later than 4.00pm on 14 August 2025, we are instructed to write to the Fair Work Commission (Commission) with a request that the Application be dismissed under sections 399A and/or 587 of the Fair Work Act 2009 (Cth). We did not receive a response from the applicant by this deadline (or at all).

Given the above, we seek that this matter be referred to a Member of the Commission for consideration and the making of an order dismissing the Application. The basis upon which this request is made is because the applicant has unreasonably failed to discontinue the Application after a settlement agreement has been concluded (s 399A(1)(c)), and the Application has no reasonable prospects of success (s 587(1)(c)) because a binding settlement was reached between the parties. In outlining the basis for the respondent's application for dismissal of the Application, we also note that the grounds for dismissal in ss 399A and 587 do not limit the Commission's powers to dismiss applications (ss 399A(3) and 587(1))."

• [5] I waived compliance with the Fair Work Commission Rules 2024 and accepted the Department's email as an application pursuant to s.399A and also as an application under s.587.

• [6] On 9 September 2025 Directions were issued requiring Mr Stewart to file and serve any submissions he wanted to make to address the Department's application. An SMS was also sent to advise him that important correspondence had been sent to his email address.

• [7] Mr Stewart did not file any material by the stated date or at all.

(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."

• [9] Mr Stewart was given a reasonable opportunity to respond to the Department's application.

• [10] An order under s.399A(1)(c) can only be made if:

(a) there has been a settlement agreement; and

(b) the settlement agreement has been concluded; and

(c) the applicant is required by the settlement agreement (or otherwise) to discontinue the unfair dismissal application; and

(d) the applicant has failed to discontinue the application; and

(e) the applicant's failure to discontinue the application is unreasonable.

• [11] The Department did not provide any evidence or documentation to support its application under s.399A. There is no sound basis upon which I could form the view that Mr Stewart has "failed" to discontinue his application (see Granas v Berkley Challenge Pty Ltd [2015] FWCFB 1795 at [27]- [30]).

• [12] As such, the Department's application under s.399A must fail.

• [13] The Department also relied on s.587 and its proposition that Mr Stewart's application has no reasonable prospects of success because a binding settlement was reached between the parties.

• [14] The relevant provisions in s.587 of the Act are as follows:

(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

(c) the application has no reasonable prospects of success.

• [15] Section 587 allows the Commission to dismiss an application on the Commission's own initiative in the early stages of the proceedings. Protracted proceedings can be avoided when there is no reasonable prospect of an outcome other than the dismissal of the application.

• [16] The power under s.587 should be used with caution, particularly if the matter involves complex questions of fact or law (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [11]- [16]). An application should not be dismissed under s.587 unless it is very clear that there are no reasonable prospects of success. As such the power under s.587 is not available if there are disputed facts that could affect the outcome of the proceedings.

• [17] Importantly, applicants must be given a fair opportunity to show that their application does in fact have some reasonable prospects of success.

• [18] As Besanko J observed in Australian Postal Corporation v Gorman [2011] FCA 975 at [33]: "...a valid and effective accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such cause of action is clearly capable of being considered to be frivolous or vexatious or without reasonable prospects of success" (see also see Coleman v Logic Australia Pty Ltd [2012] FWAFB 9876).

• [19] Unlike s.399A, the Commission does not need to be satisfied that Mr Stewart "failed" to discontinue his application to find under s.587(1)(c) that the application has no reasonable prospects of success. The circumstances that could underpin an order under s.587 are necessarily broader than the circumstances that could underpin an order under s.399A.

• [20] I am satisfied that a binding settlement has been reached between the parties that has extinguished Mr Stewart's unfair dismissal claim such that it has no reasonable prospects of success. In reaching this conclusion I have had regard to the following matters:

(a) the parties participated in the Fair Work Commission staff conciliation process during which the parties appear to have reached a settlement in specific terms;

(b) the letter to the parties following the conference identified specific terms that were said to have been agreed between the parties;

(c) those specific terms did not include the payment of any monies to Mr Stewart;

(d) Mr Stewart did not respond to the Commission's email or otherwise take issue with any of the content of the letter or the stated terms of settlement;

(e) a cooling off period was agreed and Mr Stewart did not exercise any right he might have had to abandon the agreement reached during the cooling off period;

(f) the Department's email asking for Mr Stewart's application to be dismissed (see [4] above) was sent to Mr Stewart and he did not respond to the email or otherwise take issue with any of the content of the email; and

(g) Mr Stewart was invited by my chambers to make a response to the Department's application and he did not do so.

• [21] I suspect that Mr Stewart has essentially abandoned his application. It may well be that neither the Department nor the Commission will hear from Mr Stewart again. However the Department has an interest in bringing Mr Stewart's application to finality.

• [22] In the circumstances I am satisfied that the facility under s.587(1)(c) and should be engaged to dismiss Mr Stewart's application. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Nicholas Stewart on 27 April 2025 is dismissed.

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