Gregory Haywood v Commonwealth of Australia as represented by the Department of the Environment

[2015] FWC 8756

[2015] FWC 8756

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Gregory Haywood
v
Commonwealth of Australia as represented by the Department of the Environment
(C2014/8213)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 18 DECEMBER 2015

Application to set aside Form F50 Notice of Discontinuance.

[1] Mr Gregory Haywood (the Applicant) made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by the Department of the Environment (the Respondent) on 11 December 2014 in contravention of the general protections provisions in the Act.

[2] The matter was the subject of a conciliation conference which took place on 10 February 2015, and was subsequently confirmed to have been settled on 24 February 2015. A Notice of Discontinuance was then filed on behalf of Mr Haywood on 2 March 2015. As a result, the file was closed.

Recent developments

[3] On 29 September 2015, Mr Haywood lodged an application seeking to have the Notice of Discontinuance set aside.

[4] On 12 October 2015 the Commission called for submissions from Mr Haywood in relation to his application to set aside the Notice of Discontinuance. On 16 October 2015 Mr Haywood filed these submissions. On 19 October 2015, the Commission invited the Respondent to file submissions in response. These were received on 23 October 2015.

[5] Mr Haywood submits that as he was not aware of the outcome of an independent investigation into his claims of bullying prior to settling his general protections matter, the deed of settlement must be set aside. More particularly, Mr Haywood asserts that the Respondent engaged in misrepresentation, deception and fraud in not disclosing the outcome of the investigation to him yet provides no material to substantiate that assertion.

[6] The Respondent wholly and unreservedly rejects Mr Haywood’s assertions, submitting that the matter should not be re-opened. In its submissions the Respondent highlighted, among other things, that Mr Haywood was legally represented when the Deed was negotiated and that his solicitor witnessed his signature to the Deed.

Consideration of the issues

[7] The issue of whether s.586 of the Act, which deals with the Commission correcting and amending documents, enables the Commission to set aside a Notice of Discontinuance was considered by a Full Bench in Chandra Gupta Narayan v MW Engineers Pty Ltd (Narayan) 1. In that case, the Full Bench concluded that:

“… s.586 does not empower the Commission to determine an application to set aside a notice of discontinuance. For completeness we note that the Commission may have power to deal with such an application if the notice of discontinuance was filed by mistake or under duress. In such circumstances, the general law may operate to render the notice a nullity.” 2

[8] In this case, Mr Haywood has not submitted that he filed the Notice of Discontinuance as a result of mistake or duress, nor is there any material before the Commission to support such a contention.

[9] Against that background and drawing on Narayan, I am satisfied that I have no power under the Act to grant Mr Haywood’s application. Accordingly, the application must be dismissed. An order to that effect will be issued with this decision.

 1 (2013) 231 IR 89

 2   Ibid at paragraph [14]

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