Michael Turjman v Tabcorp Holdings Limited

[2014] FWC 8831

[2014] FWC 8831

FAIR WORK COMMISSION

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 able to be represented by a solicitor and industrial barrister. He felt that was unfair and it was too much for him.

[10] I advised Mr Turjman that if he was seeking to have his notice of discontinuance set aside then I would issue directions for him to file material in support of that application.

[11] I did not require Mr Turjman to file an amended application as he had advised that he wished to have his notice of discontinuance set aside. I also explained that the application to set aside the notice of discontinuance was not about the merits of his case.

[12] On 17 September 2014, Mr Turjman objected to Tabcorp being represented in the current application and he advised that he would not be attending any hearing until that issue was resolved.

[13] On 17 September 2014, I caused a letter to be sent to Mr Turjman advising him that Tabcorp were entitled to have legal representation to assist it prepare its case and at any conciliation conducted by a member of staff of the Commission. I referred Mr Turjman to rule 12 of the Fair Work Rules 2013. He was advised that the issue of whether Tabcorp would be permitted to be represented at the hearing/conference would be decided prior to the hearing/conference and he would be able to make submissions at that time.

[14] The parties filed material in support of their respective positions and agreed that the application could be determined on the papers. As there are no relevant facts in dispute in this matter I have decided to accede to the parties’ agreement.

The history of Turjman’s first unfair dismissal application

[15] Mr Turjman was dismissed by Tabcorp on 17 January 2014. Tabcorp filed a response to the application and at the same time filed a notice that it was represented by a lawyer who may seek permission to appear on its behalf. The matter did not settle at conciliation and directions were issued for the future conduct of the matter. After the conciliation Mr Turjman was advised that if he wished to object to Tabcorp being represented he would need to put that objection in writing and it would be considered by the presiding member prior to the hearing. Mr Turjman sent an email on 19 April 2014 objecting to Tabcorp being represented. Both Mr Turjman and Tabcorp filed witness statements and submissions. On 14 May 2014, Mr Turjman wrote to the Commission objecting to Tabcorp having legal representation. On 15 May 2014, Mr Turjman discontinued his application.

[16] In his email accompanying the notice of discontinuance Mr Turjman said as follows:

“Please be advised that I wish to discontinue my unfair dismissal case as I currently don’t feel that I am able to represent myself in a full capacity with my mental illness given the significant trauma, bullying and deceit that I sustained from Tabcorp thru their malicious campaign against me which will render me vulnerable if I am faced against heavyweight solicitors/barristers who simply want to be paid to lie on behalf of their client.

I don’t feel that my case will be fair on me and hence it is with great happiness I wish to move on with my life and have no more further interest in gaining employment with Tabcorp indefinitely or have any further contact with them.

Fairwork can you please arrange to re-imburse me the $65.50 application fee back to my credit card .......”

[17] Mr Turjman’s application fee was refunded.

Consideration

[18] Mr Turjman, in the material filed in support of his application, provided evidence to support his submission that the termination of his employment was unfair. He included details of the incidents that led to the termination of his employment. However these matters are not relevant to the application before me. Mr Turjman has also filed material that he has a disability and alleged that Tabcorp unlawfully discriminated against him during his employment. Again these matters are not relevant to the application before me. I make no finding about whether Mr Turjman was terminated unfairly. Such finding could not be made without an examination of the parties’ evidence. Mr Turjman also points to s.352 of the Act which provides that an employer must not terminate an employee because the employee is temporarily absent from work. Mr Turjman filed material to support a finding that his employment was terminated whilst he was on WorkCover. Again, I make no finding in relation to this submission as it is not relevant to the question which needs to be determined, namely whether Mr Turjman’s notice of discontinuance should be set aside.

[19] The Full Bench in Chandra Gupta Narayan v MW Engineers Pty Ltd 1discussed the Commission’s power to set aside a notice of discontinuance and in particular the Full Bench said:

“[14] For the reasons given we have 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. But that is not this case.”

[20] I am unable to conclude that Mr Turjman’s notice of discontinuance was a nullity. These are my reasons. Mr Turjman submits that permitting Tabcorp to be represented by lawyers at the conciliation and in the preparation of its material placed him under such duress that he discontinued his unfair dismissal application.

[21] I accept that Mr Turjman felt strongly about Tabcorp being represented and considered that he was at a disadvantage because Tabcorp was represented by lawyers particularly in light of his disability. I also accept that he wished to deal directly with Tabcorp’s HR representative. Mr Turjman had been advised that the question of whether Tabcorp would be permitted to have a lawyer represent it at the hearing would be determined by the presiding member prior to the hearing. At the time Mr Turjman discontinued his application, the matter which was listed for hearing on 4 and 5 June 2014, had not been allocated to a member.

[22] Tabcorp was entitled to have legal representation in the preparation of its material and it was entitled to be represented in the conciliation before a member of staff of the Commission.

[23] It cannot be said that by exercising its lawful rights Tabcorp was applying duress to Mr Turjman to discontinue his application.

[24] There is no evidence of any communication between Tabcorp and Mr Turjman about the discontinuance of the application. As Tabcorp submitted, at the time Mr Turjman discontinued his application the matter was ready to be heard.

[25] Further it cannot be said that Mr Turjman had no choice but to discontinue his application. Tabcorp were entitled to make an application to be represented and that application would need to be heard and determined. Mr Turjman could have waited until that application had been determined. Even if permission had been granted Mr Turjman had a right of appeal against that decision.

[26] It is not suggested that Mr Turjman was mistaken in filing his notice of discontinuance. Nor is there any evidence on which I could conclude that Mr Turjman was legally incapable of making a decision to discontinue.

[27] Accordingly, I dismiss Mr Turjman’s application to have his notice of discontinuance set aside.

DEPUTY PRESIDENT

 1 [2013] FWCFB 2530

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