Girishwar Basa v Millsom Hoists Pty. Ltd
[2012] FWA 8059
•19 SEPTEMBER 2012
[2012] FWA 8059 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Girishwar Basa
v
Millsom Hoists Pty. Ltd.
(U2011/14354)
COMMISSIONER GREGORY | MELBOURNE, 19 SEPTEMBER 2012 |
Application for Unfair dismissal - set aside notice of discontinuance.
Introduction
[1] This matter concerns an application by Mr Girishwar Basa (the Applicant) to set aside a Form F50 - notice of discontinuance he previously filed. That matter involved an unfair dismissal application in respect of his former employer Millsom Hoists Pty. Ltd. (the Respondent). The Application to set aside the notice of discontinuance was lodged on 7 June 2012. The notice of discontinuance was filed with Fair Work Australia on 20 December 2012.
[2] Mr Basa appeared on his own behalf. The Respondent was represented by Mr Adam Shepherd from the Australian Industry Group. Directions were issued requiring the Applicant and Respondent to file and serve an outline of submissions and any witness statements by 29 June and 13 July 2012 respectively.
Issue to be decided
[3] The issue to be determined in this matter is whether it is appropriate in the circumstances for Fair Work Austalia to set aside the notice of discontinuance. The Applicant claims, on the one hand, at the time he filed the Notice he “acted blindly” and was not properly aware of what he was doing. He now seeks to have the notice of discontinuance set aside so he can again pursue the unfair dismissal application against his former employer. The Respondent opposes the application. It claims the Applicant was aware of what he was doing and intended to discontinue his unfair dismissal application at the time he filed the notice of discontinuance. In any case, if the Applicant wanted to have the notice of discontinuance set aside he should have acted promptly. It is unreasonable to seek to have a notice of discontinuance set aside more than five and a half months after it was originally filed.
The Facts
[4] The Applicant filed a brief written submission and gave evidence from the witness box. He indicated at the time of filing the notice of discontinuance he was in a “ . . . high state of mental stress. 1” He was, firstly, upset and distressed by his dismissal from Millsom Hoists Pty. Ltd. on 25 November 2011. He had been employed by the Respondent for more than five years. The circumstances of his dismissal involved allegations of physical assault and a subsequent police investigation. The Applicant subsequently filed an unfair dismissal application with Fair Work Australia on 8 December 2011.
[5] He then received news that his mother in India was ill and he subsequently left Australia at short notice on 21 December 2011 to visit her, the day after filing the notice of discontinuance. He returned to Australia on 23 January 2012.
[6] On 19 December 2011 a Notice of Listing was sent to the Applicant by Fair Work Australia advising his s.394 application had been listed for telephone conciliation on 3 January 2012. The Applicant indicated at the time he didn’t know what to do, given his emotional state and his impending departure for India. He made contact with Fair Work Australia and states he was told “. . . if I wanted I can fill out the set of withdrawal application. . . . 2” A notice of discontinuance, signed by Mr Basa, was subsequently received by Fair Work Australia on 20 December 2011 with a cross in the box marked “wholly discontinues this matter.” However, as indicated he stated he signed it “blindly” and was, in his words, “subconscious” given all that was going on.
[7] The written submissions provided by the Applicant also attached a Medical Certificate dated 20 June 2012 indicating:
“This is to certify that Mr. Basa consulted me on 05/12/2011, when was [sic] very stressed and he was prescribed medication.”
[8] The Applicant did not provide any other witness evidence in regard to his medical condition.
[9] In cross-examination Mr Basa stated that at some point prior to making the application to set aside the notice of discontinuance he decided “. . . I must go back and get justice. That’s what came to my mind and then I applied. . . 3” He also indicated in cross-examination he had received a “Guide to Unfair Dismissal” from Fair Work Australia after lodging his unfair dismissal claim. He also indicated he had been working in Australia since 1988 and had obtained a range of qualifications and completed various CAD training courses, conducted in English, in that time.
[10] Mr Basa did not provide any further witness evidence.
[11] The Respondent provided a witness statement 4 from Mr Kevin Smith, General Manager of Millsom Hoists, where the Applicant was last employed as a design draftsperson. The statement set out the duties performed by the Applicant. It also stated Mr Basa had good written communication skills, in particular, and worked with computers for a large proportion of his time at work. The Respondent also tendered a bundle of documents5 which included a copy of the Applicant’s resume detailing his employment history, academic qualifications, and the CAD skills he has acquired. The documents included a copy of an email sent by the Applicant to his former employer, Mr Kevin Smith, at Milsom Hoists on the same day he forwarded the notice of discontinuance to Fair Work Australia. The email stated: “Hello Kevin Smith, I have attached a copy of the Notice of Discontinuance form to you. I have wholly discontinued this matter. Thank you very much. Regards, Girishwar Basa.6”
[12] The Respondent submits, in the circumstances, the Applicant was not acting blindly when he filed the notice of discontinuance, but instead made a conscious decision to discontinue the unfair dismissal application he had lodged previously. It also submits he had a level of education and understanding that enabled him to be clear about the process he was involved in and the consequences of the decisions he was making.
Legislation and law to be applied
[13] The Applicant did not provide submissions about Fair Work Australia’s ability or power to set aside a notice of discontinuance. However, the Respondent accepted s. 586 of the Fair Work Act 2009 (the Act) provided the source of power to enable Fair Work Australia to make such an order. It made reference to the decision in Ray Aguilar v. Qantas Airways Limited [Qantas] 7 in support of this contention. It also referred to the decision of Commissioner Lee in Mary Dabadie v. Kaisercraft [Kaisercraft].8
[14] Section 586 of the Act states:
“586 Correcting and amending applications and documents etc.
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.”
[15] As indicated the power in s.586, and Fair Work Australia’s ability to set aside a notice of discontinuance, was considered by Commissioner Lee in the matter of Kaisercraft. It also involved an unfair dismissal application and a subsequent notice of discontinuance claimed to have been lodged in error by the Applicant at a time when she had no intention of wanting to discontinue her unfair dismissal application.
[16] In that decision Commissioner Lee first referred to the decision of Senior Deputy President Harrison in Qantas, subsequently followed by Commissioner Harrison in Tamara Trezise v. Universal Music Australia Pty Limited T/A Universal Music Australia [Universal Music] 9. He then continued to indicate:
“I adopt the approach that was taken in the decisions referred to above and find that there is power under section 586 of the FW Act to allow Fair Work Australia to set aside a notice of discontinuance. The second issue that arises then is one of discretion; that is while there is power, should Fair Work Australia allow the notice of discontinuance to be withdrawn after considering the circumstances of the particular case?” 10
[17] Commissioner Lee continued to indicate:
“In considering the approach that Fair Work Australia should take in these matters I have considered a decision of Senior Deputy President Watson in A Kontogouris v Tradeflex Services Group Pty Ltd 11. In that decision, which was issued in 2001, the Senior Deputy President was dealing with the analogous provisions of section 111(1)(t) and (q) of the WR Act but the approach that he adopted, given my reasoning that section 586 of the FW Actcan be used on the same basis, is relevant to these proceedings. In particular I refer to paragraphs [12] and [14] of that decision which provides:
[12] I accept that the notice of discontinuance is intended to bring finality to an application under section 170CE of the Act and it would be unusual for the Commission to exercise its general powers to grant leave to an applicant to withdraw such a notice.
...
[14] In circumstances where I am satisfied that the applicant executed the notice of discontinuance in error and never intended to discontinue his application, I am prepared to take the unusual step of granting leave to the applicant to withdraw his notice of discontinuance.”
I adopt the approach of Senior Deputy President Watson this matter. Setting aside a notice of discontinuance should not be done so lightly. The key question is whether Fair Work Australia is satisfied that there was an error on the part of the applicant and was there no intent to discontinue the application. 12”
[18] I also adopt the approach detailed by Commissioner Lee in terms of how an application to set aside a notice of discontinuance should be dealt with and determined.
[19] The evidence in the present matter indicates the Applicant was upset and emotional at the time he filed the notice of discontinuance. He had been dismissed from his employment on 25 November 2011. Little detail was provided about the circumstances involved, however, it was indicated by the Applicant it involved allegations of physical violence and a subsequent police investigation. The Applicant was clearly upset about what had occurred. He filed an unfair dismissal application on 8 December 2011. He then received news that his mother in India was unwell and immediately made arrangements to travel to visit her. On the day prior to his departure he received notification from Fair Work Australia that his application had been scheduled for telephone conciliation on 3 January 2012 at a time when he was still going to be overseas.
[20] The Applicant then made contact with Fair Work Australia to discuss this situation. Whilst the Applicant did not provide a clear picture about what transpired in those discussions he did subsequently complete and lodge a signed notice of discontinuance that was received by Fair Work Australia indicating that “he wholly discontinues this matter”. He sent a similar communication to his former employer on the same day.
[21] The Respondent submits the Applicant did not act blindly or in ignorance when he filed the notice of discontinuance. He had been provided with an Unfair Dismissal Guide by Fair Work Australia. He had been in contact with Tribunal staff to discuss his application. He is a skilled employee with qualifications and a level of understanding that enabled him to be aware of the implications of what he was doing. The Respondent also points out that despite returning to Australia from India on 23 January 2012 it was not until 6 June 2012 that he submitted the application to have the notice of discontinuance set aside.
[22] On the basis of the evidence before the Tribunal it is difficult to come to a concluded view about why the Applicant filed the notice of discontinuance on 20 December 2011. As indicated, there seems little doubt he was distressed and upset by his dismissal from a workplace where he had been employed for more than five years. He had also been confronted by news of his mother’s illness and the plans for his impending departure to visit her. However, it is not clear why, in all those circumstances, he decided to file the notice of discontinuance. Whether it was done in error, because he was acting in a confused state, or whether it was done intentionally to remove one of the issues he was confronting at the time, and to enable him to move on and find work elsewhere is unclear. To this extent the circumstances are different to those in Kaisercraft where Commissioner Lee found it was clearly evident the Applicant, despite filing a notice of discontinuance, had no intention of wanting to discontinue her unfair dismissal application.
[23] But that is not the end of the matter. The Applicant arrived back in Australia on 23 January 2012 after visiting his mother in India. Again for reasons that were not clearly explained he did not file the application to set aside the notice of discontinuance until 7 June 2012. This was around four and a half months after his return to Australia and five and a half months after he filed the notice of discontinuance. The Applicant was unable to provide any clear explanation for this delay, other than to indicate he had originally acted “blindly” but with further consideration had realised the unfair dismissal application should be pursued. This delay, without reasonable explanation, works against any conclusion the Applicant originally acted in error. If the Applicant had acted without intending to discontinue the unfair dismissal application why did he not act much earlier, on his return to Australia, to try and rectify that situation?
[24] A further issue also arises. There is clearly an important public policy consideration that certainty exists, as far as possible, about the legislative framework and its processes and outcomes. This point has been emphasised as an important consideration in matters involving extension of time applications pursuant to s. 394 and s.365. In the light of these considerations there would accordingly need to be something completely out of the ordinary for this Tribunal to set aside a notice of discontinuance almost six months after it was originally filed. The evidence does not demonstrate these circumstances exist in the present matter. The application is accordingly dismissed.
COMMISSIONER
Appearances:
G. Basa on his own behalf.
A. Shepherd for Millson Hoists Pty. Ltd.
Hearing details:
2012
Melbourne:
July 20.
1 Applicant’s written submissions dot point 1.
2 Transcript PN41.
3 Transcript PN67.
4 Exhibit S2.
5 Exhibit S1.
6 Exhibit S1, MH6
7 [2010] FWA 5669.
8 [2012] FWA 1995.
9 [2011] FWA 4496.
10 [2012] FWA 1995 at [8].
11 A Kontogouris v Tradeflex Services Group Pty Ltd, PR902620, [12] -[14]
12 [2012] FWA 1995 at [9] - [10].
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