Mona Roberts v Dawn House Incorporated

[2017] FWC 2524

[2017] FWC 2524

FAIR WORK COMMISSION

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 expectation communicated to Ms Roberts that she would be required to be in a position to respond accordingly, as well as address the jurisdictional matters.

[8] The proceedings on 6 April 2017 commenced in conference, where both the purported discontinuance, as well as my preliminary views on the jurisdictional point, were raised with the parties. The parties were provided with a copy of the decision of the Full Bench of the Commission in AB v Tabcorp Holdings Ltd, 1which considered an application to set as aside a discontinuance.The proceedings then went briefly on the record to document what had been discussed, including that Ms Roberts had been given a period of one week by me to seek advice on the matters discussed in conference and to advise the Commission if she wished to proceed with the matter in light of the Commission’s authorities.

[9] Subsequent to the proceedings, Ms Roberts requested a further period to obtain advice, which was granted to close of business on 5 May 2017. To date, other than some emails disputing the jurisdictional objection of the Respondent, Ms Roberts has provided no further material to the Commission regarding the purported discontinuance and the Commission’s capacity to continue to deal with the matter in the face of the purported discontinuance.

[10] Relevant to this matter is section 588 of the Act, and Rule 10 of the Fair Work Commission Rules 2013 (the Rules), which provide as follows;

588 Discontinuing applications

A person who has applied to the FWC may discontinue the application:

(a)  in accordance with the procedural rules (if any); and

(b)  whether or not the matter has been settled.

10 Discontinuance

(1) An applicant in an application before the Commission may discontinue the application at any time.

(2) To discontinue the application, the applicant must notify the Commission by:

(a) lodging a notice of discontinuance; or

(b) advising the Commission by letter, email, fax or telephone that the applicant:

(i) wishes to discontinue the application; or

(ii) has settled the application; or

(iii) wishes to withdraw the application; or

(iv) no longer needs the Commission to deal with the application;

or

(c) advising the Commission of the discontinuance during the course of a conference or hearing.

Note 1: For paragraph (a), the notice of discontinuance must be in the approved form—see subrule 8(2).
Note 2: The Commission prefers applicants to advise it of the discontinuance of a matter by lodging a notice of discontinuance in the approved form.
Note 3: See subregulations 3.02(8), 3.03(8), 3.07(8) and 6.07A(8) of the Regulations in relation to the refund of an application fee when an application is discontinued.

(3) To remove any doubt, this rule does not prevent the Commission from dismissing an application on its own initiative.

[11] The decision of the Full Bench in AB v Tabcorp Holdings Limited, 2which was provided to the parties in relation to the setting aside of a notice of discontinuance, contains the following discourse;

“[10]We note that the Deputy President's decision is predicated on the assumption that the Commission has the power to set aside a notice of discontinuation if the notice was filed by mistake or under duress. In that regard the Deputy President relied on an obiter comment in Narayan to that effect. However the ratio in Narayan is set out at paragraph 6 of that decision,:

"... s.586 provides a power to correct or amend an application, or to waive an irregularity in the form or manner in which an application is made. It is not a power to revoke or set aside an application. Once filed a notice of discontinuance is self executing and it brings the application to an end." (footnotes omitted)

[11] We agree with the proposition that in certain circumstances a notice of discontinuance can, in effect, be set aside if it was filed by mistake or under duress. However we doubt that such a power may be exercised by the Commission. It seems to us that any such application would have to be made to a court - for a declaration that the notice was a nullity. As an arbitral body the Commission cannot grant declaratory relief. The issue does not arise in this case because the Deputy President dismissed the application before her.

[12] Of course, as was observed in Narayan, filing a notice of discontinuance does not preclude the filing of a further unfair dismissal application (see Narayan at [15]-[30]), though such an application will be subject to the time periods specified in s.394(3). In deciding whether to extend the time for the filing of such an application it would be open to the Commission to consider the circumstances surrounding the filing of the earlier notice of discontinuance, including whether it was filed by mistake or under duress.” 3

[12] Having considered the circumstances of this matter, as well as the Full Bench decision in AB v Tabcorp Holdings Limited, I find that the matter was discontinued by the Applicant in accordance with the Rules on 5 April 2017. While the discontinuance may well have been filed by mistake, the guidance of the Full Bench on this point is nevertheless clear insofar as the Commission cannot grant the declaratory relief sought to set that discontinuance aside. It follows that Ms Roberts’ unfair dismissal application is considered withdrawn. Of course, it is open to Ms Roberts to file a further unfair dismissal application, which would be subject to an application for an extension of time for its lodgement, as alluded to in paragraph [12] of AB v Tabcorp Holdings Limited.

COMMISSIONER

Appearances:

Ms M Roberts on her own behalf.

Ms S Lowing, Chamber of Commerce Northern Territory, for the Respondent.

Hearing details:

2017.

Darwin:

6 April.

 1   [2015] FWCFC 523.

 2   [2015] FWCFB 523.

 3   Ibid [10]-[12].

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