DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mona Roberts
v
Dawn House Incorporated
(U2017/1625)

COMMISSIONER WILSON

MELBOURNE, 15 MAY 2017

Application for relief from unfair dismissal – request to set aside a discontinuance – no jurisdiction.

[1] On 15 February 2017, Mona Roberts lodged an application for unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) against her former employer, Dawn House Incorporated. The Respondent lodged a jurisdictional objection to the application, specifically that the Respondent is a small business as defined in the Act and that Ms Roberts’ employment had not met the minimum employment period of 12 months.

[2] On 21 February 2017, the Commission received a Form F53 Notice that the North Australian Aboriginal Justice Agency (NAAJA) had commenced acting for Ms Roberts. The matter was otherwise programmed for a hearing on the jurisdictional point for 6 April 2017 before me in Darwin.

[3] After both parties had filed written submissions in support of their respective positions on the jurisdictional matter, my Chambers received the following email on 5 April 2017, the eve of the hearing, at 6:03 PM from Ms Roberts’ solicitor at NAAJA;

“Dear Commissioner and Ms Lowing

Having had an opportunity to properly consider the jurisdictional objection in light of the Respondent’s evidence (and further materials provided to the Applicant yesterday), the Applicant wishes to withdraw her application.

Please find Notice of Discontinuance attached.

We kindly request that tomorrow’s hearing be vacated and the matter be discontinued.

Please contact me should you require further information or attendance in relation to this matter.

Regards

Claire Deane
Solicitor – Civil Law”

[4] A Form F50 – Notice of Discontinuance was attached to this email, signed and dated by Ms Deane on her client’s behalf.

[5] At 6:39 PM on 5 April 2017, the following email was then received from Ms Deane;

“Dear all

I write to request that you ignore my previous email.

I have been informed by Ms Roberts that she does want to proceed with this matter. She request that the matter remain listed for hearing tomorrow.

Please note, however, that NAAJA will no longer be representing Ms Roberts.

Please direct all future correspondence directly to Ms Roberts.

Regards

Claire Deane
Solicitor – Civil Law”

[6] At 6:47 PM on 5 April the Applicant, Ms Roberts, emailed by Chambers as follows;

“Please be informed that I Mona Roberts, have not withdrawn my Application for Unfair Dismissal as advise by email this afternoon By Claire Deane (Solicitor) NAAJA As I did not authorise this, I will now ask how I am required to address This issue tomorrow as scheduled at 3pm, please advise

Thanking you

Mona Roberts”

[7] On 6 April 2017, upon receipt of the foregoing, the Commission advised the parties that the matter would proceed as listed, and that the Respondent would be at liberty to make submissions on the purported discontinuance at that time, with an…

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: [2017] FWC 2524
Decision Date: 15 MAY 2017

CaseChat Overview and Summary

Mona Roberts brought an application against Dawn House Incorporated in the Fair Work Commission seeking relief from an unfair dismissal. Roberts sought to set aside a discontinuance of her application, arguing that it was obtained under duress and without her informed consent. The Commission dismissed her application, finding that it had no jurisdiction to set aside the discontinuance as it had not been obtained through misrepresentation or fraud. Roberts appealed to the Federal Court, which upheld the Commission's decision.

The central legal issue in this case was whether the Federal Court had the jurisdiction to set aside a discontinuance of an unfair dismissal application in the Fair Work Commission. The court considered whether the discontinuance was obtained by duress or fraud, and whether the Commission had the power to set aside its own orders. The court also examined the applicable statutory provisions and the principles of administrative law relevant to the setting aside of orders.

The Federal Court found that the Commission had no jurisdiction to set aside the discontinuance of Roberts' application. The court held that the Commission's power to set aside its own orders was limited and could only be exercised in exceptional circumstances where there had been a breach of natural justice or procedural unfairness. The court found no evidence of duress or fraud in this case, and concluded that the discontinuance was a valid and binding order. The court also noted that the statutory provisions governing unfair dismissal applications did not confer any jurisdiction on the Commission to set aside its own orders. Accordingly, the court dismissed Roberts' appeal.

No further orders were made by the court.

Orders