Chandra Gupta Narayan v MW Engineers Pty Ltd

[2013] FWC 1329

Note: An appeal pursuant to s.604 (C2013/3659) was lodged against this decision - refer to Full Bench decision dated 29 April 2013 [[2013] FWCFB 2530] for result of appeal.

[2013] FWC 1329

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Chandra Gupta Narayan
v
MW Engineers Pty Ltd
(U2012/10732)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 4 MARCH 2013

Application to set aside notice of discontinuance.

[1] This decision arises from an application made by Mr Chandra Gupta Narayan (the applicant) to set aside the notice of discontinuance he had lodged in relation to his s.394 unfair dismissal application for relief in respect of the termination of his employment by MW Engineers Pty. Ltd. (the respondent).

[2] Directions were issued on 15 January 2012 requiring the applicant and the respondent to file and serve an outline of submissions and any witness statements by 29 January and 12 February 2013 respectively. The matter has been dealt based on the written material submitted by the parties.

Background

[3] The applicant worked for the respondent for about one year. On 5 June he was given a letter indicating that his employment would be ended immediately by reason of redundancy. On 21 June the applicant filed an application for an unfair dismissal remedy with FWA. On its face, this application was outside the 14 day permitted for such applications. The applicant denied, in effect, that his was a case of genuine redundancy as there was still work available for him to do. The matter was listed for a conciliation conference. On 3 July 2012 the respondent filed an objection seeking a dismissal of the application on grounds including that it had been made outside the 14 day period.

[4] On Friday 13 July 2012 the applicant contacted FWA and requested that the conciliation conference be adjourned from Monday 16 July to a later date as he had a job interview around the time the conciliation had been listed to take place and the employer was unable to reschedule the interview. The conciliation was relisted for Tuesday 17 July 2012.

[5] On 16 July the applicant contacted FWA and advised that he was withdrawing his application and the conciliation was cancelled. On 31 July 2012 he filed a formal notice of discontinuance, indicating that he was wholly discontinuing the matter (as opposed to wholly discontinuing the matter as part of a settlement agreement).

[6] On 10 December 2012 the applicant called FWA and indicated he wished to reopen the matter. He followed this up with a letter on 12 December 2012 in which he said he had closed the matter ‘rather hastily as a result of stress and trauma that I was going through at that particular period of time because of the way I was treated by MWEngineers. I wish to open the matter as I believe I have a genuine reason and believe that justice will prevail ...’

“At the time I opted out of the case I was fairly traumatised and stressed and I followed bad advice from another individual who advised me that it was futile for me to do so as they had paid me the accurate redundancy payout. This person was from the Ombudsman office who are not conversant with complex cases like mine. I had also not considered the long-term prospect and my age factor, and the fact that I WILL not get a job now considering my age and vast changes in the qualifications and skills area by Fair Trades. Therefore I am looking at the prospect of spending the rest of my 10 years of working life on government handout, because of Mr Peter Marshall’s selfish needs.”

[7] The applicant’s letter went on to outline how he considered the respondent had treated him unfairly. He sent another letter to FWA on 14 February 2013 criticising the respondent.

[8] The applicant filed brief written submissions in response to the directions 23 January 2013 attaching a doctor’s letter which he said indicated his ‘incapacity during the particular period when I decided to withdraw. I have now completely recovered from the medical conditions that I was suffering from and which was directly caused by circumstances while working with MW Engineers. I believe I will now be able to fight my case quite diligently if required and prove that what Mr Marshall did was wrong and malicious and which has deprived me of future earnings because of his selfish needs. I find the above matter very serious, in which the respondent has curtailed my working life by about a decade and I wish to hold them accountable for this negligence.’

[9] The letter from the doctor, dated 22 January 2013 includes the following:

“This is to state that I have known Mr Narayan since 1996 and that he is obese, suffers from hypercholesterolaemia and impaired glucose tolerance. He is currently taking oral medication. I understand that he was made redundant in June 2012. He was severely affected by this event and together with his medical conditions, he became unmotivated and depressed.”

The certificate further states:

“He seems to have recovered somewhat and is ready to join the workforce.”

[10] The respondent filed a submission in response to the directions on 15 February 2013. This included the following:

“Mr Narayan’s argument is that he was unfit to make the decision to withdraw his application.

We submit the following facts as evidence that Mr Narayan was perfectly capable of making a decision at that time.

Mr Narayan was obviously capable enough to make the decision to fill in the original application form and to make a decision to submit this to Fair Work Australia. This included providing his reasoning for making the application which we know it did not include stress trauma or indeed reference any other medical condition.

At the time he withdrew his application Mr Narayan insisted that we supply him with a reference regarding the work he had performed for us. Again this requires forethought, understanding and reasoning. We did supply him with a reference.

In the first or second week after he withdrew his application MW Engineers were contacted on more than one occasion regarding his time with us from prospective employers. This was after we sent the reference so it is obvious that he was pursuing work after the application was withdrawn. This confirms that he was capable of making the decision to apply for work and was actively applying for positions, all of which is reasonable and logical.

Mr Narayan produced a medical certificate dated 22 January 2013 which talks about his condition in July last year 2012 (some 6 months ago). He told the doctor in an interview on the 22 January 2013 that 6 months ago he was depressed. This was after the new application to FWA which MW Engineers received on 21 December 2012 ...”

Consideration

[11] The issue to be determined in this matter is whether it is appropriate in the circumstances for the Fair Work Commission to set aside the notice of discontinuance.

[12] Section 586 of the Act states:

“FWA may:

(a) allow a correction or amendment of any application, or other document relating to a matter before FWA, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to FWA.”

[13] The power in s.586, and Fair Work Australia’s ability to set aside a notice of discontinuance, was considered by Senior Deputy President Harrison in Aguilar v. Qantas 1. In that decision Her Honour ‘assumed in the Applicant’s favour that s.586 is a source of power’ to set aside a notice of discontinuance. I will make the same assumption.

[14] However while I am willing to assume that there is power to set aside notices of discontinuance it would be contrary to the public interest for such notices to be set aside other than in exceptional circumstances. In general I would be reluctant to exercise any discretion to set aside notices of discontinuance other than in cases of duress or error. It could also be appropriate to set aside notices of discontinuance where a notice had been filed based on the settlement of a matter where the respondent had then failed to honour its side of the settlement.

[15] I do not consider that there are any exceptional circumstances in the current case. It is clear that the applicant was capable of applying for jobs and attending for interviews at the time he filed his notice. I do not doubt that he was stressed by his dismissal, but this is hardly unusual. There is no suggestion that any duress was applied by the respondent to obtain the notice of discontinuance. It is a reasonable inference that the applicant reconsidered his withdrawal of his claim when he was unsuccessful in obtaining alternative employment. The lengthy delay between the notice and the application to revoke is also a consideration weighing heavily against granting the application.

Conclusion

[16] In these circumstances I have decided not to grant Mr Narayan’s application to revoke his notice of discontinuance.

SENIOR DEPUTY PRESIDENT

 1   [2010] FWA 5669

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