Amanda Gibson v Darley Piper Australia

[2011] FWA 6148

[2011] FWA 6148

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Amanda Gibson
v
Darley Piper Australia
(U2009/14994)

COMMISSIONER RAFFAELLI SYDNEY, 12 SEPTEMBER 2011

Termination f employment - application to withdraw Notice of Discontinuance - application refused.

[1] On 7 January 2010 Ms Amanda Gibson (the Applicant) filed an application under s.394 of the Fair Work Act 2009 (the Fair Work Act) for an unfair dismissal remedy. The Applicant indicated that her employment had been terminated by Darley Australia Pty Ltd (the Respondent) on 2 September 2009.

[2] The application was the subject of conciliation by telephone before a Fair Work Australia conciliator on 11 February 2010.

[3] On 12 February 2010, the Applicant signed a notice of discontinuance (NOD) in respect of her application. (The document on file suggests that the NOD was signed on 11 February 2010. However, in her evidence in proceedings before me, the Applicant said that she signed the NOD on the day after the conciliation).

[4] On 13 July 2011, the Applicant applied to set aside the NOD.

[5] One of the grounds raised in the motion filed on 13 July 2011 was an alleged failure by the Respondent to comply with the obligation under section 530 of the Fair Work Act. In proceedings on 22 August 2011, I indicated that the operation of section 530 was irrelevant to the application to set aside the NOD. It does not seem to have been pursued.

[6] It should be noted that the Applicant’s original application of 7 January 2010 was not filed in time. Time has yet to be extended. However, proceedings before me on 2 September 2011 concerned the Applicant’s application to have the NOD set aside.

[7] The Applicant was represented by Mr D. McGrane. The Applicant gave evidence.

[8] The Applicant’s evidence was that in the conciliation proceedings of 11 February 2010, the conciliator had focused on the fact that the application had been made out of time. The conciliator said that an extension of time for filing the application would not be granted. The conciliator suggested that the Applicant discontinue the matter.

[9] The Applicant said that she accepted the conciliator’s suggestion to discontinue because she was told that there would be no extension of time given. Indeed, it was her evidence that the conciliator had said that the extension of time question could not be heard (Paragraph [192] of transcript).

[10] Although during the conciliation the question of the Respondent’s pursuit of costs was raised, it was not a matter which she considered before agreeing to sign the NOD.

[11] Mr McGrane put that the conciliator was incorrect in her view. The Applicant had acted upon that advice when signing the NOD. Given the circumstances, the Applicant should be allowed to have the NOD set aside.

[12] Mr McGrane also explained that the failure by the Applicant to move to set aside the NOD signed on 12 February 2010 until 13 July 2011 was a consequence of an accident that he suffered. This accident occurred overseas some weeks after 12 February 2011. This caused him to be physically and mentally incapacitated for many months.

[13] Mr Darams, of counsel, who represented the Respondent put firstly that the Fair Work Act should not entertain any report of what is said to have occurred in a conciliation conference.

[14] He also put that the decision to file the NOD was based upon her concern as to exposure to costs if she pursued the matter. That is not a matter that should attract a revocation of a NOD.

Determination

[15] There is some doubt as to whether the Fair Work Act readily allows for the setting aside of NODs in a way previously permitted by section 111(1) of the Workplace Relations Act 1996 (the WR Act).

[16] The closest equivalent to section 111(1)(g) and (t) of the WR Act is section 586 of the Fair Work Act. For the purposes of this decision I have assumed in the Applicant’s favour, that section 586 of the Fair Work Act would allow for her NOD to be set aside.

[17] That said, I have decided not to exercise my discretion to set the NOD aside for the following reasons.

[18] Firstly, conciliation conferences associated with the unfair termination regime under the Fair Work Act are conducted in private. This is seen as the optimum environment in which parties are able to explore their options, including making offers and concessions which may lead to a settlement. It is widely accepted that if parties apprehend that any offer or concession might be reported or used in other proceedings (including arbitration), this will inhibit a candid exploration of settlement options.

[19] At least two Full Benches of the Australian Industrial Relations Commission dealing with termination of employment applications under the WR Act have expressed views as to the inappropriateness of taking into account without prejudice positions or utterances given in conciliation processes. [McKenzie v Meran Rise (Print S4692) at paragraph 12] and [Wright v Australia Customs Services (PR926115) at paragraph 33].

[20] In the matter before me, the NOD which is sought to be revoked followed the conciliation conference held on 11 February 2010. The justification for its revocation put by the Applicant is based squarely on the alleged conduct and utterances by the conciliator in the conciliation conference.

[21] The exercise of my discretion necessarily requires my consideration of matters which were private. Respecting the privacy of such conferences is not only based on an acceptance that confidentiality and without prejudice communication optimises chances of settlement but it is also mandated by the Act.

[22] Section 592 which one finds in Part 5 - 1, Division 3 concerning the conduct of matters before Fair Work Australia provides as follows:

“592 Conferences

(1) For the purpose of performing a function or exercising a power of FWA (other than a function or power under Part 2-6), FWA may direct a person to attend a conference at a specified time and place.

Note: Part 2-6 deals with minimum wages. For the conduct of annual wage reviews, see Subdivision B of Division 3 of Part 2-6.

(2) An FWA Member (other than a Minimum Wage Panel Member), or a delegate of FWA, is responsible for conducting the conference.

(3) The conference must be conducted in private, unless the person responsible for conducting the conference directs that it be conducted in public.

Note: This subsection does not apply in relation to conferences conducted in relation to unfair dismissal or general protection matters (see sections 368, 374, 398 and 776).”

[23] In Part 3 - 2 concerning unfair dismissals, section 398 provides as follows:

“398 Conferences

(1) This section applies in relation to a matter arising under this Part if FWA conducts a conference in relation to the matter.

(2) Despite subsection 592(3), FWA must conduct the conference in private.

(3) FWA must take into account any difference in the circumstances of the parties to the matter in:

(a) considering the application; and

(b) informing itself in relation to the application.

(4) FWA must take into account the wishes of the parties to the matter as to the way in which FWA:

(a) considers the application; and

(b) informs itself in relation to the application.”

[24] Consequently, for both broad policy and statutory reasons the respect of the privacy of the conciliation conference held on 11 February 2010 tells against the exercise of my discretion.

[25] Secondly, the evidence of the Applicant as to what she alleges occurred at the conciliation conference is not able to be tested in circumstances where there was no evidence from anybody else that participated in the telephone conference. Indeed, the Applicant did not seek to call either the conciliator or the employer participant.

[26] It is true that the evidence of one person in certain circumstances will be accepted. For example, a statement of a lone witness to a fatal accident would ordinarily be accepted as critical evidence before a coroner. However here, the Applicant was only one of several persons who attended (by telephone) the conference. In my view it is not sound to accept such evidence in the absence of hearing from others.

[27] Thirdly, even if policy and statutory considerations were put to one side and the conciliator was requested or prepared to give evidence there must be serious doubt that the conciliator could recall what occurred at the conference. As noted earlier such conferences are not recorded and there is no suggestion that any handwritten notes or jottings made by participants were either held for a time or can be meaningfully deciphered. The conciliator could not be expected to recall what occurred at one of the very many conciliations conducted.

[28] This is particularly the case here where the conciliation occurred on 11 February 2010, the NOD was signed on 12 February 2010 and presumably the file was closed soon after. The Applicant did not resuscitate the matter until 13 July 2011. Any possibility of hearing the recollections of the conciliator was rendered a futility by the Applicant’s failure to take earlier steps to repudiate the NOD. It is not necessary to consider the explanation for such delay. What is important is that, with the passing now of over 18 months, how could one expect the conciliator to be able to given any meaningful recollection of what occurred.

[29] For all those reasons, I decline to exercise my discretion to revoke or correct or amend the NOD.

[30] I find that the Applicant’s application for an unfair dismissal remedy was discontinued by her on 12 February 2010.

COMMISSIONER

Appearances:

D. McGrane, solicitor for the Applicant.

J. Darams of counsel with J. Davis for the Respondent.

Hearing details:

2011
Sydney:
August 22;
September 2.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR514382>