Daniel Hatton v Northern Beaches Community Services Limited

[2016] FWC 2550

[2016] FWC 2550

The attached document replaces the document previously issued with the above code on 29 April 2016.

The typographical errors have been corrected in paragraphs [7] and [11].

Katrina Alviano

Associate to Deputy President Gooley

Dated: 2 May 2016

[2016] FWC 2550

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Hatton
v
Northern Beaches Community Services Limited
(U2015/14305)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 29 APRIL 2016

Application for relief from unfair dismissal.

[1] Mr Daniel Hatton alleged that he had been unfairly dismissed on 30 October 2015 by Northern Beaches Community Services Limited.

[2] The application was listed for hearing after it did not resolve at conciliation. Mr Hatton was directed to file and serve material in support of his application by 1 February 2016.

[3] On 2 February 2016, Mr Hatton’s representative, Mr Amnon Kelemen, emailed the Commission to advise that the “matter had settled in principle… A formal notice of discontinuance will be filed in due course”.

[4] On 8 March 2016, Mr Hatton advised he was in the process of contacting Mr Kelemen for an update on when to expect settlement monies. Mr Hatton was advised that once a Notice of Discontinuance was filed, the matter could not be re-opened. A Commission staff member suggested he wait until he received his settlement monies before filing a Notice of Discontinuance.

[5] On 15 March 2016, Mr Hatton advised the Commission that he had executed the Terms of Settlement and was waiting for settlement monies to be paid. On 22 March 2016, Mr Hatton raised his concern that he had still not received settlement monies.

[6] Following this advice, the Commission sent correspondence to Mr Hatton on 24 March 2016 which sought clarification on whether the matter had settled between the parties. The correspondence indicated that the Commission does not have jurisdiction to enforce the agreement if an agreement had been reached between the parties and the respondent was not complying with the terms.

[7] On 26 March 2016 at 10.32 pm, Mr Kelemen sent a Notice of Discontinuance to the Commission.

[8] On 1 April 2016, Mr Hatton emailed the Commission and advised he “would like to proceed with the hearing we have not reached a binding agreement.”

[9] On 5 April 2016, the Commission sent correspondence to Mr Hatton which referred him to the Full Bench decision, AB v Tabcorp Holdings Limited [2015] FWCFB 523 and in particular to the following:

“[10] We note that the Deputy President's decision is predicated on the assumption that the Commission has the power to set aside a notice of discontinuation if the notice was filed by mistake or under duress. In that regard the Deputy President relied on an obiter comment in Narayan to that effect. However the ratio in Narayan is set out at paragraph 6 of that decision:

"... s.586 provides a power to correct or amend an application, or to waive an irregularity in the form or manner in which an application is made. It is not a power to revoke or set aside an application. Once filed a notice of discontinuance is self executing and it brings the application to an end." (footnotes omitted)

[11] We agree with the proposition that in certain circumstances a notice of discontinuance can, in effect, be set aside if it was filed by mistake or under duress. However we doubt that such a power may be exercised by the Commission. It seems to us that any such application would have to be made to a court - for a declaration that the notice was a nullity. As an arbitral body the Commission cannot grant declaratory relief. The issue does not arise in this case because the Deputy President dismissed the application before her.

[12] Of course, as was observed in Narayan, filing a notice of discontinuance does not preclude the filing of a further unfair dismissal application (see Narayan at [15]-[30]), though such an application will be subject to the time periods specified in s.394(3). In deciding whether to extend the time for the filing of such an application it would be open to the Commission to consider the circumstances surrounding the filing of the earlier notice of discontinuance, including whether it was filed by mistake or under duress.

In light of that decision the application cannot proceed. You may make an application to set aside the notice of discontinuance or file a new application and make an application for an extension of time.”

[10] On 13 April 2016, Mr Hatton filed a Form F1 Application wishing to set aside the Notice of Discontinuance and requested a date be set for hearing. In his application Mr Hatton also submitted, amongst other things, that he was not contacted by his representative and had not been informed about the notice. He said he didn’t know about the notice until the Commission contacted him. The application was sent to the Respondent and its representative for their view.

[11] Mr Hatton, in his application, has not made any submissions that the notice was filed under duress or by mistake. Mr Hatton advised that Mr Kelemen filed the notice prematurely, without his consent and without ensuring the agreed terms of settlement had been finalised.
[12] However the Full Bench in Narayan held that, “[o]nce filed a notice of discontinuance is self executing and it brings the application to an end.” 1

[13] I have decided to determine the application on the material before me as there are no disputed facts.

[14] In considering the material before me, I have had regard to Mr Hatton’s submissions and in line with the Full Bench decision 2 in AB v Tabcorp Holdings Limited, I have determined that I do not have the power to set aside the notice of discontinuance in Mr Hatton’s application for relief from unfair dismissal. Such an application would need to be made to a Court.

[15]
Consequently, in this circumstance, the application to set aside the notice of discontinuance cannot proceed and it is dismissed under s.587(1)(c) of the Fair Work Act 2009 as it has no prospects of success.

DEPUTY PRESIDENT

 1   [2013] FWCFB 2530.

 2   [2015] FWCFB 523.

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