s.394 - Unfair dismissal

• [1] On 3 February 2025, Mr Scott McLeod (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (Cth) (the Act) in which he asserted that the termination of his employment with Ambulance Victoria (the Respondent) was unfair. On 19 February 2025 the Respondent filed its Form F3 Response with the Commission.

• [2] The matter was allocated to my Chambers for determination on 4 March 2025 following which directions were sent to the parties on 6 March 2025 for the filing of submissions and materials in relation to the merits of the application. The directions also advised that the matter would be listed for hearing on 12 May 2025.

• [3] Both parties filed material in advance of the hearing in accordance with the directions. On 7 May 2025, the Respondent emailed my Chambers advising that the parties had reached agreement to settle the matter and that once the settlement agreement had been prepared and executed, the Applicant would file a notice of discontinuance. The Respondent requested that in these circumstances the hearing on 12 May 2025 be vacated. The hearing was subsequently vacated in correspondence sent by my Chambers on 7 May 2025. The Applicant was also requested to file a notice of discontinuance 'in the near future'.

• [4] Having not received any communication from the Applicant following the 7 May 2025 correspondence from my Chambers, further correspondence was sent to the parties on 29 May 2025 in which an update was sought on the status of the settlement and the filing of a notice of discontinuance. No response was received from the Applicant in relation to this correspondence.

• [5] On 17 June 2025, further correspondence was sent to the parties again requesting an update on the settlement of the matter and requesting the Applicant to file a notice of discontinuance. The Respondent wrote to my Chambers on 18 June 2025 confirming that the matter had been settled. Having received no response from the Applicant challenging the Respondent's advice, the following correspondence was sent to the parties on 23 June 2025;

The parties advised Chambers on 7 May 2025 that this matter was settled and the Deputy President sought an update on filing of an F50 on 29 May and 17 June 2025.

Despite being advised by the Respondent that the matter settled, Chambers have still not received a Form F50 or any communication from the Applicant or his representative. This is an unsatisfactory situation.

The Deputy President advises that he now proposes to dismiss the application pursuant to s 587 of the Fair Work Act 2009 (Cth). That is because, as the matter has been settled the application has no reasonable prospect of success. Should either party object to the course of action proposed they are required to file submissions and material on which they seek to rely by 5.00pm on Tuesday 24 June 2025.

• [6] The Applicant did not respond to the correspondence of 23 June 2025 by filing any submissions or material in objection to the proposed course of action.

• [7] Turning now to whether the application should be dismissed, the relevant section of the Act provides 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

(b) the application is frivolous or vexatious; or

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

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

• [8] Despite repeated attempts to confirm the status of the matter with the Applicant on 7 May, 29 May and 17 June 2025, no response was received from him. Nor did the Applicant object to the proposed dismissal of his application when afforded an opportunity to do so. I infer from his failure to respond to any correspondence from my Chambers that he does not oppose dismissal of the application pursuant to s 587 of the Act. I am satisfied that that a binding settlement has been reached between the parties of the first type referred to in Masters and Cameron.[1]

• [9] As I have found above, the parties have reached agreement to settle the matter, and I am satisfied the agreement was of the first type referred to in Masters v Cameron. In these circumstances I am satisfied that the Applicant's unfair dismissal application has no reasonable prospects of success. Consequently, I have determined to exercise my discretion pursuant to s 587(1)(c) of the Act to dismiss the application for an unfair dismissal remedy. In doing so I have acted on my own initiative pursuant to s 587(3)(a) of the Act.

• [10] The application for an unfair dismissal remedy is dismissed. An order giving effect to this will be issued with this decision.

[1] Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353, 360

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