Adam Thomas v Insurance Australia Group Services Pty Ltd T/A Insurance Australia Group

[2014] FWC 800

[2014] FWC 800

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adam Thomas
v
Insurance Australia Group Services Pty Ltd T/A Insurance Australia Group
(U2009/13904)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 3 FEBRUARY 2014

Jurisdictional issue - Whether the Notice of Discontinuance was set aside - Whether the Applicant has a live application.

[1] Mr Adam Thomas made an application for an unfair dismissal remedy on 23 November 2009 and filed a notice of discontinuance on 2 March 2010.

[2] On 6 June 2012 Mr Thomas sent an email asking that the matter be reopened.

[3] Much of what occurred after that date is set out in my decision refusing to grant an adjournment and I do not repeat that history here. 1

[4] The matter was listed for a jurisdictional hearing to resolve whether the notice of discontinuance had been set aside and whether Mr Thomas currently has an application before the Fair Work Commission (the Commission).

[5] Mr Thomas appeared at the hearing as did Ms Gingold for Insurance Australia Group Services Pty Ltd (IAG).

[6] On 16 January 2014 Mr Thomas by email asked that I allocate this matter to another member of the Commission. On 17 January 2014 Mr Thomas was advised by my chambers that he should make his application in accordance with the rules and that the application would be considered at the hearing. No application was made and Mr Thomas did not press his application at the hearing. As such I declined to reallocate the matter to another member of the Commission.

[7] Mr Thomas submitted that his file was open and it should proceed to hearing.

[8] Mr Thomas said that he had been dismissed while he had a legitimate workers compensation claim and because he refused to comply with directions of his employer which he submitted were not lawful and reasonable. Mr Thomas said that his claim was not resolvable at the conciliation conducted by the conciliator employed by the Commission because the issue of whether his workers compensation claim was valid needed to be determined. That conciliation took place on 6 January 2010.

[9] It was his submission that the conciliator advised him that “the workers compensation claim would be required to be finalised and determined before anything really could happen with or the unfair dismissal matter could proceed.” 2 He asked the conciliator what should happen and he said that he was told that “we’ll send you the documentation that you need to submit in order to put your case on pause or on hold. Once your workers compensation matter is finalised, you can come back and let the Fair Work Commission know. We will continue with your matter.”3

[10] A notice of discontinuance was filed by Mr Thomas’s legal representative on 2 March 2010.

[11] Mr Thomas submitted that his workers compensation claim was finalised on 22 March 2012 and his claim was accepted. He contacted the Commission and was told that he had to apply to have his unfair dismissal matter reopened which he declined. 4 He declined because “for me to submit an application to say, "I wish for my matter to be reopened", would be an acknowledgment of me to say that it was closed, and as I've maintained throughout the entire period, I do not acknowledge my matter was closed, and I am not going to conduct or comply with any documentation in admission that I accept that it was closed and requesting it be reopened.”5

[12] In response to my question about his legal representative filing a notice of discontinuance he submitted that “if there was an error that occurred, the error did not occur on the behalf of my party, the error occurred on the behalf of being - us receiving information, whether it be incorrect or inaccurate, in reference to submitting a document and a process that, under our instruction, was to put the matter on hold for now, and the official position of the Fair Work Commission it didn't. It close the matter. So we were incorrectly instructed on a process which has now resulted in this.” 6

[13] Ms Gingold submitted that the notice of discontinuance filed by Mr Thomas had not been set aside and Mr Thomas does not have an application on foot.

[14] She submitted that Commissioner Jones did not set aside the notice of discontinuance on June 2102. She referred to the statement, relied upon by Mr Thomas to support his earlier contention that Commissioner Jones had reopened his file. Commissioner Jones on that occasion put the following proposal to the IAG’s representative:

“What does the respondent say about this proposition that I reopen the file but send it to a Fair Work member, not a conciliator to have conciliation to see whether there might be some settlement reached or arrangement that would deal with it. There seems to be a lot of issues on foot. Then if that can't be done/settled, well, then Mr Thomas will just have to have his luck at a hearing.” 7

[15] Ms Gingold submits that all Commissioner Jones did on that occasion was to “reopen the file for the purpose of the conciliation to see if the matter could be resolved expediently but if that did not occur then Mr Thomas would have to “try his luck to have his notice of discontinuance set aside.” 8 Mr Thomas rejected this interpretation of what Commissioner Jones was saying.9

[16] Ms Gingold further relied upon the decision in Narayan v MW Engineering 10 where the Full Bench determined that the Commission does not have the power to set aside a notice of discontinuance unless it was filed by mistake or under duress. Ms Gingold submitted that Mr Thomas had not put forward any evidence that there was a mistake or duress.11

[17] Mr Thomas submitted that had he known what a notice of discontinuance was doing he would not have filed the notice.

Findings

[18] I do not accept Mr Thomas’ submissions that Commissioner Jones reopened his application. Commissioner Jones was dealing with a situation where a matter had been discontinued. In an attempt to see if the matter could be resolved without further hearing she sought the agreement of the parties to further conciliation. I agree with the submissions of IAG that the reference in her comments to Mr Thomas “taking his chances at a hearing” was a reference to him taking his chance at having his notice of discontinuance set aside.

[19] In any event, comments made by a member of the Commission during discussions with the parties do not reflect the concluded view of the Commission. The only way Mr Thomas’ application could be “reopened” was to have the notice of discontinuance set aside. This did not occur on 14 June 2012.

[20] This conclusion is supported by the fact that there was no application before Commissioner Jones to set aside the notice of discontinuance, and even if Mr Thomas’ request to have the file reopened was such an application, then, apart from Mr Thomas alleging that he had been misled by the conciliator, a submission which Commissioner Jones clearly rejected, 12 Mr Thomas put no submissions that he had filed the notice of discontinuance under duress or by mistake. Also no opportunity was provided to IAG to put any submissions in opposition to the application. Commissioner Jones did not publish a decision, no decision was made in transcript setting aside the notice of discontinuance and no order to set aside the notice of discontinuance.

[21] As such I find that the notice of discontinuance was not set aside and therefore no further action will be taken in relation to this application.

[22] Given this finding and given Mr Thomas’ view that he did not need to make an application to set aside the notice of discontinuance and that he has not made such an application, it is not necessary to deal with Mr Thomas’ submissions that he was mislead by a staff member of the Commission on 6 January 2010.

DEPUTY PRESIDENT

Appearances:

Mr A. Thomas appearing on his own behalf.

Ms N. Gingold appearing on behalf of the Respondent.

Hearing details:

2014;

Melbourne and Sydney by videolink;

21 January.

 1   [2014] FWC 470.

 2   Transcript at PN 131.

 3   Ibid at PN 131.

 4   Ibid at PN 132.

 5   Ibid at PN 133.

 6   Ibid at PN 136.

 7   Transcript of Hearing - 14 June 2012 at PN95.

 8   Ibid PN 151.

 9   Ibid PN 157.

 10   [2013] FWCFB 2530.

 11   Transcript PN 154.

 12   Transcript of Hearing - 14 June 2013 at PN 68 - PN 76.

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