John Buzec v City of Nedlands
[2011] FWA 5715
•25 AUGUST 2011
[2011] FWA 5715 |
|
DECISION |
Workplace Relations Act 1996
s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment
John Buzec
v
City of Nedlands
(U2009/4391)
COMMISSIONER WILLIAMS | PERTH, 25 AUGUST 2011 |
Termination of Employment - setting aside discontinuance.
[1] The original application that this decision is concerned with was made by Mr Buzec, the Applicant, on 8 June 2009 under section 643 of the Workplace Relations Act 1996.
[2] The Applicant advised the Australian Industrial Relations Commission in August 2009 that he had discontinued his application and so the file was closed.
[3] In April 2011 the Applicant wrote to Fair Work Australia requesting that his case be “reopened”.
Background
[4] The unfair dismissal application lodged in 2009 was the subject of a conciliation conference before me under the Workplace Relations Act 1996 on 4 August 2009. The conference did not resolve the matter.
[5] On 18 November 2009 my associate contacted the Applicant by email enquiring as to whether he wished to discontinue his application or whether he wanted the matter to be arbitrated.
[6] By return email the Applicant advised:
“This matter was discontinued on 16 August 2009. Commissioner Williams gave me seven days from the date of the meeting (August 9) to decide whether I want to take the matter to arbitration. Due to the enormous cost to engage a solicitor, I decided not to pursue the matter. Please refer to my email of 11 August 2009.”
[7] No email from the Applicant dated 11 August 2009 has been located.
[8] Self evidently the Applicant accepts that he discontinued the original application in August 2009 but he now requests that this application be reopened.
[9] The Respondent objects to a reopening of the application.
[10] Both parties were requested to provide submissions as to whether the Tribunal has the power to reopen the application and the merits of doing so if there was such a power. The parties were then heard on these issues at a hearing in July 2011.
[11] The Applicant has put information before the Tribunal that he says was not available to him at the time of the earlier proceedings before the Australian Industrial Relations Commission. This material goes to the merit of his application that asserts that he was unfairly dismissed by the City of Nedlands.
[12] The Applicant has not made any submissions as to the question of under which legislation I should consider his application to reopen and what powers I have if any to do so.
[13] The Respondent argues that the Applicant has not provided any basis on which the Tribunal could be satisfied that it has the power to reopen his application nor has he addressed any of the matters that if the Tribunal does have such a power it might consider relevant to exercising such a discretionary power.
[14] The Respondent complains that the Applicant has merely addressed the substantive issue of the fairness or otherwise of his dismissal which is not relevant to the consideration of whether his application should be reopened.
[15] The Respondent argues that the reason put forward by the Applicant for discontinuing his original application was the high cost of legal representation, however the Applicant was able at that time to represent himself as he has done so in these most recent proceedings, and so the Respondent submits the reasons for the matter being discontinued have not changed since 2009.
[16] The Respondent argues that the reasoning of the Full Court of the Federal Court of Australia in Spotless Services Australia Ltd v the Honourable Senior Deputy President Janette Marsh [2004] FCAFC 136 is appropriate and, as concluded by the Full Court in that case, the Tribunal cannot reopen an application when the application is no longer before it.
[17] If that is not accepted in the alternate the Respondent submits that the principles applicable to reopening matters where power is available do not support the Tribunal reopening this application having regard to the public interest in maintaining the finality of litigation and in the absence of there being some denial of procedural fairness to a party or there being a need to correct a misapprehension or mistake the party made when discontinuing.
[18] None of these factors are present in this matter and so the Respondent argues this case should not be reopened.
Consideration
[19] Neither party has put submissions to me as to whether this matter should be considered under the terms of the Fair Work Act 2009 or the Workplace Relations Act 1996.
[20] What is clear is that under the Workplace Relations Act 1996 the Australian Industrial Relations Commission did set aside notices of discontinuance relying on powers under that legislation in section 111 such as section 111(l) and (m) set out below:
111 Particular powers of Commission
(1) The Commission may do any of the following in relation to a proceeding under this Act or the Registration and Accountability of Organisations Schedule:
.......
(l) allow the amendment, on any terms that it thinks appropriate, of any application or other document relating to the proceeding;
(m) correct, amend or waive any error, defect or irregularity whether in substance or form;
.......
[21] Similar, but not identical, powers under the Fair Work Act 2009 are found in section 586 which is set out below:
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.
[22] Whichever legislation is relevant in this instance I do not accept that in this case there is any error, defect or irregularity that could be subject to amendment, waiver or correction. Nor indeed is it apparent that the Applicant is requesting that there be a correction or amendment of any application or other document.
[23] The Applicant has not submitted that he discontinued this application in error or by mistake nor that he did so under duress at the time.
[24] The evidence is that the Applicant made a considered decision to discontinue the original application, understanding this meant that his unfair dismissal application would not be arbitrated. Since then he has gathered further information that he thinks is relevant regarding the merit of his original application and because of this he has now changed his mind and now wants to have his case arbitrated.
[25] Such a situation does not warrant the exercise of any discretionary power to reopen the Applicant’s case, if indeed there is such a power available which is unclear.
[26] In conclusion then the Applicant has not satisfied me that I have the power to reopen the application he has discontinued.
[27] Even if I do have such a discretionary power the circumstances here do not warrant an exercise of such discretion in favour of the Applicant. I will not reopen his case nor set aside his discontinuance.
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