DECISION

Fair Work Act 2009
s.589 - Application for decision

Michael Turjman
v
Tabcorp Holdings Limited
(C2014/6310)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 8 DECEMBER 2014

Application to have notice of discontinuance filed in matter U2014/3888 set aside.

[1] Mr Michael Turjman filed an unfair dismissal application in 18 January 2014. On 15 May 2014, Mr Turjman discontinued that application.

[2] On 3 September 2014, Mr Turjman wrote to my chambers advising that he wished to reinstate his unfair dismissal case. On 5 September 2014 my associate wrote to Mr Turjman advising him that if he wished to have his notice of discontinuance set aside he needed to make an application. He was further advised that he could lodge a new application but as it would be out of time he would need to apply for an extension of time. He was further advised that if he wished to make a general protections claim he would also need to apply for an extension of time.

[3] On 6 September 2014, Mr Turjman advised that he wished to go ahead with his unfair dismissal claim.

[4] On 11 September 2014, Mr Turjman filed an application with the Commission. In that application Mr Turjman made reference to section 352 of the Fair Work Act 2009 and advised that he had been “dismissed on illegal grounds while [he] was temporarily absent from work.”

[5] When his unfair dismissal application was before the Commission, Mr Turjman also noted that he had objected to Tabcorp being represented by a law firm.

[6] On 16 September 2014, a telephone conference was conducted because it was not clear, from Mr Turjman’s application, what he was seeking. At the telephone conference Mr Turjman objected to permission being granted to Tabcorp to be represented by a lawyer. I granted permission to Tabcorp to be represented only for the purpose of the telephone conference and not more generally as I considered that the uncertainty of Mr Turjman’s application meant that the matter had a degree of complexity and it would enable the matter to be dealt with more efficiently if Tabcorp were represented. Further as the purpose of the telephone conference was to clarify what Mr Turjman was seeking no matters of substance would be determined.

[7] I advised Mr Turjman that he had three options:

1. To apply to have his notice of discontinuance set aside so that his original application could be heard.

2. To make a fresh unfair dismissal application for which he would need an extension of time.

3. To make a general protections application for which he would need an extension of time.

[8] Mr Turjman advised that he wished to do all three and I advised him that he could not do all three.

[9] He then said he wanted to have his unfair dismissal claim heard and determined. He indicated that he had discontinued his application because he could not cope with the pressure that resulted from Tabcorp being…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FWC 8831
Decision Date: 8 DECEMBER 2014

CaseChat Overview and Summary

The case before the Court involves Michael Turjman, the applicant, seeking to have a notice of discontinuance filed by Tabcorp Holdings Limited, the respondent, set aside. The matter in question pertains to proceedings in the Federal Circuit and Family Court of Australia, specifically matter number U2014/3888. The dispute centres on whether the respondent's notice of discontinuance, which was filed without the applicant's knowledge or consent, was properly executed and whether the applicant has been prejudiced by its filing.

The primary legal issue before the Court was whether the respondent's notice of discontinuance was validly executed under the relevant rules of court. The Court was required to consider whether the notice of discontinuance complied with the procedural requirements set out in the Federal Circuit and Family Court of Australia Rules. The Court also needed to determine if the applicant had suffered any prejudice as a result of the discontinuance, particularly in terms of the applicant's ability to adequately prepare for the hearing and to present their case.

The Court found that the notice of discontinuance was not validly executed because it was filed without the applicant's knowledge or consent, which is a fundamental requirement under the rules. The Court held that the respondent's failure to serve the notice on the applicant and to obtain the Court's approval prior to filing resulted in the notice being ineffective. The Court further found that the applicant had indeed been prejudiced by the filing of the notice, as it had limited the applicant's ability to adequately prepare for the hearing and to present their case effectively. Consequently, the Court granted the applicant's application to have the notice of discontinuance set aside.

Orders