Matthew Dally-Watkins v VFG Services Pty Ltd T/A Vogue Advisory Group

[2020] FWC 5687

[2020] FWC 5687

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Dally-Watkins
v
VFG Services Pty Ltd T/A Vogue Advisory Group
(U2020/11742)

COMMISSIONER BISSETT MELBOURNE, 28 OCTOBER 2020

Application for an unfair dismissal remedy.

[1] Mr Matthew Dally-Watkins (Applicant) made an application to the Fair Work Commission on 31 August 2020 seeking relief from termination of employment pursuant to s.394 of the Fair Work Act 2009 (FW Act). He had been employed by VFG Services Pty Ltd T/A Vogue Advisory Group (Respondent). The Applicant commenced employment with the Respondent on 22 January 2020 and his employment was terminated on 10 August 2020. He was therefore employed for a period of 6 months and 3 weeks.

[2] The application was forwarded to the Respondent who was asked to file a Form F3 – Employer response to the application. In its response the Respondent raised a number of jurisdictional objections to the application. These were that the Respondent was a small business and the Applicant had therefore not worked the minimum employment period [of 12 months] necessary and hence was not protected from unfair dismissal, the dismissal was a genuine redundancy and the Small Business Fair Dismissal Code applied.

[3] The Applicant was contacted by a staff member of the Commission on 15 September 2020 at 10.45am and advised that, if the Respondent had less the 15 employees at the time of the Applicant’s dismissal and the Applicant was employed for less than 12 months his application would potentially have no reasonable prospect of success as he had not met the minimum employment period necessary.

[4] The Commission records indicate that the Applicant “confirms he will discontinue” his application. The Applicant did not otherwise file a notice of discontinuance or otherwise confirm in writing what the records indicate he said to the staff member.

[5] At 12.25pm on 15 September 2020 a notice was sent to the Applicant and Respondent cancelling the conciliation scheduled for 18 September 2020. That notice indicated:

THE LISTING(S) HAS NOW BEEN CANCELLED.

The matter has been discontinued by the applicant.

[6] 12.09pm that same day the Applicant sent to the Commission an email that included an excerpt from a decision in Lincoln Mills (Aust) Ltd v Goughi [no reference included] in relation to when a director might be classed as an employee. The email from the Applicant concluded “[s]o it appears that Michael is classed as an employee and co-director There were 15 employees at VFG on the 10th August, 2020.” [sic]

[7] The relevant staff member again spoke to the Applicant at 5.00pm on 15 September 2020. The Commission records indicate that the staff member discussed the matter with the Applicant and asked what he wanted to do. The file note states “Continue? He will think about it for a few days.” The file note also said that the Applicant was “more concerned” about an alleged underpayment and superannuation which were apparently subject to a dispute notification made by the Applicant to the Commission.

[8] On 22 September 2020 the Applicant again contacted the Commission and queried his dispute notification and “raised the question” of reopening his Form F2 as the Respondent had 15 employees at the time the Applicant was dismissed. The advice given to the Applicant was that he should email the Commission and request that his unfair dismissal application be “re-opened”.

REQUEST OF APPLICANT

[9] On 29 September 2020 the Applicant emailed the Commission:

Good morning Jill,

As explained earlier there were 16 employees at the time, when I was made redundant on the 10th of August 2020 and 3 new employees adviser / paraplanning support staff had been employed since June 2020.

I would like my file for Unfair Dismal reviewed to be reopened.

Sincerely

Matthew Dally-Watkins

[phone number given]

[10] On 30 September 2020 my chambers sought submissions as to whether the application had, in fact, been discontinued.

[11] In response to the request for submissions that Applicant said that:

•  He was informed that his application would not be considered as the Respondent had fewer than 15 employees at the time he was dismissed and he therefore did not meet the minimum employment requirements;

•  He indicated in his discussion with the staff member that he “would think and re-consider, to see what are [his] options.” At this point he says the staff member indicated she would discontinue his application;

•  He received correspondence from the Commission with respect to the discontinuance but replied indicating the Respondent had 16 employees on 10 August 2020, the date of his dismissal and that three staff had been employed between June 2020 and 10 August 2020;

•  In the period leading up to his dismissal he had not been paid correctly and superannuation had not been calculated on his hours worked.

[12] The Respondent put no further submissions to the Commission but relies on the cancellation of the conciliation and the information contained on that cancellation notice in addition to material previously filed including information filed in response to the dispute notification of the Applicant.

CONSIDERATION

[13] If the Applicant did discontinue his application the Commission does not have the power to set aside the discontinuance. 1 That is a matter to be considered by the relevant court.

[14] In this case I am not convinced that the Applicant did discontinue his application.

[15] I have reached this conclusion because there is nothing on the file to indicate that the Applicant did, by his words, intend to not proceed with his application.

[16] Whilst the file note indicates that the Applicant “confirms he will discontinue” it is not apparent, given the further engagement by Commission staff with the Applicant that he did, in fact, discontinue. Further, the language of the file note suggests that the Applicant would take some positive step himself to discontinue his application. It is not framed to indicate that he has discounted but rather that he intends to do so. I would also observe that there is nothing in the file that indicates that any staff member advised the Applicant that he had, in fact, discontinued his application and that, consequently, there was no more the Commission could do in relation to his unfair dismissal application.

[17] Had it been that the Applicant did discontinue, the further file notes by the Commission staff member do not indicate that the Applicant was told the effect of the discontinuance.

[18] That the Applicant indicated on 15 September 2020 that he wished to “think about it for a few days” in his second conversation with Commissions staff suggests that he was not aware that he had (if this is the case) already discontinued his application.

[19] In circumstances where there is a potential jurisdictional controversy the effect of suggesting that an application potentially could be dismissed as there are no reasonable prospects of success needs to be put before an Applicant in some context. That is, in this case, that unless the Applicant could show the Respondent had 15 or more employees the application may dismissed if necessary. It is not apparent that such qualification on what a member may do with this application was put before the Applicant. Rather, the Applicant has investigated the matter and returned with what he considers to be evidence to support his claim. The Applicant reinforced this in his later call when he said he would think about whether to continue for a few days. If the Applicant had already discontinued it is not clear why he was not advised that his application could not be further considered.

CONCLUSION

[20] The FW Act requires that the Commission perform its functions in a manner that is “fair and just…is quick, informal and avoids unnecessary technicalities and is open and transparent”. 2 Specifically, unfair dismissal applications should be dealt with in a manner that is “quick, flexible and informal” and which “addresses the needs of employers and employees”. The procedures should ensure a “fair go all round”.3

[21] In circumstances where it is not clear that the Applicant did discontinue his application (an indication that he has discontinued) and where the Applicant continued to engage with the Commission in relation to the number of employees of the Respondent at the time of his dismissal and, taking into account the manner in which the Commission should perform its functions, I am not satisfied that the Applicant did discontinue his application.

[22] The Fair Work Commission Rules 2013 allow for an application to be discontinued by phone. However it is important that, in taking such a discontinuance from an applicant by phone, that it be made clear to an applicant and be appropriately noted on the file the effect of such a discontinuance. This is particularly important in unfair dismissal matters where the effect of discontinuance is that ends the matter before the Commission. Any file notes in relation to such actions must also be clear in the language used. It is, of course, always preferable that the discontinuance be in writing but this is not mandatory.

[23] The application for unfair dismissal made by Mr Dally-Watkins will therefore be referred for conciliation and, should the matter not resolve, for hearing in relation to the jurisdictional matter and merits of the application should jurisdiction be established.

COMMISSIONER

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 1   Unfair dismissal benchbook page10.

 2 FW Act s.577.

 3 FW Act s.381.