TERMINATION OF EMPLOYMENT – application to dismiss by employer – ss.394, 587 Fair Work Act 2009 – application by respondent for dismissal of application – applicant previous employed as a bus driver – Commission notified application settled after directions for filing submissions were issued – vacated hearing dates and set aside directions in anticipation of filing of notice of discontinuance – over 12 months later, Commission wrote to applicant seeking the unfiled notice of discontinuance – applicant did not file and alleged he was pressured by representative into accepting agreement – respondent opposed application being relisted on the basis that it would have no reasonable prospects of success, owing to prior settlement of the claim – Commission sought submissions on whether a settlement was reached, and on the issue of the applicant’s alleged failure to prosecute his case in a timely manner – applicant had contacted the Commission several times over the 12 month period to advise that no settlement had been reached – Commission’s file notes showed applicant had contacted Commission and had been told to put his request for further directions and a listing in writing but had failed to do so – Commission satisfied that settlement, of the type contemplated in Masters v Cameron, was reached between parties and that, pursuant to the decision in McKinnon v Eventide, this is binding upon the parties – Commission further satisfied that applicant failed to prosecute application in a timely manner and that there would be significant prejudice to respondent if it were allowed to progress – application to dismiss unfair dismissal application granted. Ayaz v Transdev NSW South P/L.
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