Gavin Legg v Ramcar T/A Supercharge Batteries

[2017] FWC 1203

[2017] FWC 1203

FAIR WORK COMMISSION

DECISION

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

Gavin Legg
v
Ramcar T/A Supercharge Batteries
(U2015/15062)

COMMISSIONER WILSON MELBOURNE, 20 MARCH 2017

Application for relief from unfair dismissal – application to set aside a discontinuance – no jurisdiction.

[1] On 16 November 2015, Gavin Legg made an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against his former employer, Supercharge Batteries. The application disclosed that Mr Legg’s dismissal took effect on 23 October 2015, a date corroborated by the Respondent in its Employer Response Form. The application was therefore lodged outside the requisite 21 day period for the filing of such applications, as prescribed in s.394(2) of the Act.

[2] On 19 November 2015, Mr Legg was issued correspondence by the Commission, identifying the application as being out of time, and requiring him to file certain documents in support of an extension of time being granted for the lodgement of his application. After the filing of written material was received from both parties, the matter was listed for hearing before Deputy President Gooley on 21 December 2015.

[3] On 15 December 2015, prior to the jurisdictional hearing, Mr Legg contacted the Chambers of Deputy President Gooley by telephone. The file note of that conversation records the following;

“Tele call from Applicant. Wishes to discontinue with matter. he starts a new job and does not want to proceed with matter. I said we will send notice cancelling hearing and will confirm with Respondent. [Associate].”

[4] Mr Legg’s unfair dismissal application was deemed withdrawn pursuant to Rule 10 of the Fair Work Commission Rules 2013 (the Rules), and the Commission’s file was closed. Rule 10 provides;

10 Discontinuance

(1) An applicant in an application before the Commission may discontinue the application at any time.

(2) To discontinue the application, the applicant must notify the Commission by:

(a) lodging a notice of discontinuance; or
(b) advising the Commission by letter, email, fax or telephone that the applicant:
(i) wishes to discontinue the application; or
(ii) has settled the application; or
(iii) wishes to withdraw the application; or
(iv) no longer needs the Commission to deal with the application; or
(c) advising the Commission of the discontinuance during the course of a conference or hearing.
Note 1: For paragraph (a), the notice of discontinuance must be in the approved form—see subrule 8(2).
Note 2: The Commission prefers applicants to advise it of the discontinuance of a matter by lodging a notice of discontinuance in the approved form.
Note 3: See subregulations 3.02(8), 3.03(8), 3.07(8) and 6.07A(8) of the Regulations in relation to the refund of an application fee when an application is discontinued.

(3) To remove any doubt, this rule does not prevent the Commission from dismissing an application on its own initiative.

[5] On 9 March 2016, the Commission was notified in writing that a lawyer, Ms Natasha Leedman, had commenced acting for Mr Legg. This notice followed a number of telephone inquiries in January, February and March 2016 from Ms Leedman with the Deputy President’s Chambers about the history of the matter. The correspondence advised that the Applicant wished for the proceedings to continue, and that Mr Legg had not intended to withdraw his unfair dismissal application – rather there had been a misunderstanding in the telephone conversation on 15 December, and that instead Mr Legg had sought an adjournment of his proceedings at that time.

[6] On 15 March 2016, correspondence was issued by the Commission to the Applicant, highlighting the decision of the Full Bench in AB v Tabcorp Holdings Limited 1which provides the following in relation to the setting aside of a notice of discontinuance;

“[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.” 2

[7] The correspondence invited an indication from the Applicant as to whether he wished to still pursue the application to set aside the discontinuance, with the Applicant put on notice that consideration would be otherwise given to the dismissal of his application pursuant to s.587(1)(c) of the Act.

[8] Such an intention to pursue the application was communicated by Ms Leedman to the Commission on 18 March 2016, and supporting submissions and statements received on 25 March 2016.

[9] The file was then allocated to me for determination in my capacity as Deputy Panel Head for the Termination of Employment Panel. The matter was listed for hearing on 2 May 2016, with the hearing to consider firstly whether the Commission was to be persuaded that there was not a discontinuance, and its attendant questions of jurisdiction, and, if so, to move to determine the question of the extension of time for the lodgement of the application.

[10] After being adjourned on two occasions due to the unavailability of the Respondent, the hearing was rescheduled for 24 May 2016. On 23 May 2016, my Chambers was advised by Ms Leedman that the parties had reached an in-principle settlement agreement, and the listing was subsequently vacated.

[11] Over the ensuing months, the Commission was contacted on numerous occasions by Mr Legg and his representative. File notes of those conversations with Ms Leedman variously record alleged issues with the Respondent’s compliance with the now executed settlement deed, inquiries as to the potential of the Commission to further conciliate the matter, and discussions concerning ongoing legal proceedings between the parties in the Courts; and with Mr Legg conversations in regard to the filing of a Notice of Discontinuance.

[12] On 3 February 2017, the Applicant’s representative wrote to my Chambers, after an invitation was put to the Applicant to do so, outlining the factual background of the matters that had unfolded between the parties subsequent to the matter settling in-principle in May 2016. That correspondence indicates that terms of settlement had been executed by both parties by 14 July 2016. The correspondence further details Court proceedings currently being engaged in between the parties, and an intention on the part of Mr Legg to have the settlement agreement set aside so that his unfair dismissal application may be pursued.

[13] Notwithstanding the apparent settlement agreement which has been reached between the parties, which of itself, in light of Australia Postal Corporation v Gorman 3, may well preclude the existing cause of action and replace it with a new cause of action based on the agreement, nothing in the Applicant’s material progresses the earlier application to set aside the discontinuance of 15 December 2015. Having regard to the circumstances of the matter, and in view of the Full Bench authority in AB v Tabcorp Holdings Limited, I am satisfied that the matter was discontinued by Mr Legg by telephone within the ambit of Rule 10 of the Rules, and that the Commission does not have jurisdiction to set aside that discontinuance. The application to set aside the discontinuance is dismissed.

COMMISSIONER

 1   [2015] FWCFB 523.

 2   Ibid [10]-[12].

 3 [2011] FCA 975.

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