Mr Graeme Frew v Makin Residential
[2012] FWA 5608
•4 JULY 2012
[2012] FWA 5608 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Graeme Frew
v
Makin Residential
(U2012/265)
COMMISSIONER JONES | BRISBANE, 4 JULY 2012 |
Application to set aside a Notice of Discontinuance
Introduction
[1] This decision concerns an application by Mr Frew to set aside a notice of discontinuance filed on behalf of the Applicant by his representative on 5 March 2012, and then to have the matter dealt with in accordance with Part 3-2 of the Fair Work Act 2009 (the Act).
[2] The Respondent submits that first, there is no power reposed in Fair Work Australia (FWA) to set aside the Notice of Discontinuance and secondly, that if I find nevertheless there is power, a notice of discontinuance should only be exercised where I am satisfied that the notice of discontinuance was filed as a result of duress, mistake or error.
Source of Power
[3] The first issue to arise is, what is the source of power to enable FWA to set aside a notice of discontinuance.
[4] As noted, the Respondent submits that FWA lacks power under the Act to set aside a notice of discontinuance.
[5] It is correct that there is no express power under the Act which deals with an application to set aside a notice of discontinuance. S.588, in Subdivision A - Applications to Fair Work Australia of Division 3 - Conduct of Matters before Fair Work Australia, Part 5-1 - Fair Work Australia expressly provides that an Applicant may discontinue an application in accordance with the procedural rules, whether or not the matter has been settled. S.587 in the same Subdivision enables FWA to dismiss applications in accordance with that section.
S.586, in the same Subdivision is in the following terms:
586 Correcting and amending applications and documents etc.
FWA may:
(a) allow a correction or amendment of any application, or other document relating to a matter before FWA, on any terms that it considers appropriate; or
(b) waive an irregularity in the form or manner in which an application is made to FWA.
[6] There is no Full Bench decision on this particular point. However, the question was considered by Senior Deputy President Harrison in Aguilar v Qantas Airways Ltd. 1 In the proceedings Qantas acknowledged that:
“under provisions of the previous Workplace Relations Act 1996 the Commission did set aside such notices by relying on s.111(1)(q) to correct or amend any error, defect or irregularity and s.111(1)(t) to generally give all such directions and do all such things as are necessary or expedient for the speedy and just hearing of a matter.” 2
[7] Senior Deputy President Harrison stated that the closest equivalent to these sections is s.586 3.
[8] Senior Deputy President Harrison decided to approach the issue by assuming for the purpose of the decision that S.586 is a source of power to set aside a notice of discontinuance, concluding, however, not to exercise her discretion to do so 4.
[9] I accept the approach adopted in Aguilar to this issue. I am prepared to assume for the purpose of this matter that the reference in s.586 to “or other document relation to a matter before FWA” includes a Notice of Discontinuance of an application of a matter before FWA and that the phrase “on any terms that it considers appropriate” encompasses the setting aside of the Notice of Discontinuance.
Background
[10] The relevant background to this matter is as follows:
a) In late January 2012, the Applicant instructed Mr Amnon Keleman, Employee Assist to act as his representative.
b) An application for relief from unfair dismissal under s.394 of the Act was filed by Mr Amnon Keleman, the Applicant’s Representative on 13 February 2012 (Form F2).
c) The Respondent filed, on 26 February 2012, a response to the application (Form F3) which was signed by Mr Sam Byrne, Director of the Respondent.
d) Conciliation before a FWA Conciliator was listed for 5 March 2012.
e) A notice of discontinuance signed by the Applicant’s Representative was filed in FWA on 5 March 2012.
f) On 16 April 2012, the Applicant filed a Form F1 Application (no specific form provided) seeking compensation for unfair dismissal of employment.
g) On 17 April 2012, the applicant filed a further Form F1 Application (no specific form provided) with the relief sough being ‘Notice of Discontinuance to be set aside’.
[11] At the hearing the Applicant stated that he sought the relief claimed in the application filed on 17 April 2012. Consequently, the matter subject of the hearing and this decision is the application to set aside the Notice of Discontinuance filed on 5 March 2012.
Evidence
[12] There is no dispute that the Respondent is a small business and the reasons given for the dismissal related to the misconduct and poor performance. The Applicant denies, of course, that he engaged in misconduct and the assessment of poor performance.
[13] The Applicant’s evidence in relation to the circumstances under which the Notice of Discontinuance was filed is:
a) His discussion with his Representative was limited. When he first spoke to him, his representative sent him a list of six questions, including a question asking him to provide a brief statement of his dismissal; 5
b) In this initial discussion the Applicant informed his Representative that the Respondent was a small business; 6
c) The Applicant provided a response in early February 2012 to each of the questions and sent it to his Representative; 7
d) There was no discussion between the Applicant and his Representative following the correspondence regarding the six questions until the morning of the conciliation; 8
e) On the morning of the conciliation listed by FWA (5 March 2012), his Representative telephoned him; 9
f) His Representative advised that he had had 14 years experience and his advice was that his claim did not have a reasonable prospect of success and that he should discontinue; 10
g) He accepted his Representatives advice and instructed his Representative to file a Notice of Discontinuance; 11
h) He did not take steps to adjourn the conciliation listed for that day. 12
[14] Having regard to the Submissions made by the Applicant, a fair summary of his reasons for the application to set aside the Notice of Discontinuance is that he believes his representatives did not have enough information about the circumstances of his dismissal; 13 his Representative did not have enough time to properly consider the Applicant’s case before advising the Applicant that he should discontinue his application;14 he (the Applicant) wasn’t informed of the Respondent’s submissions contained in its Form F3 response;15 and the Representative “didn’t have his heart in the job”.16
Consideration
[15] The Respondent’s Submission is that the discretion (which it submits is not available under the Act) to set aside a Notice of Discontinuance should be only exercised in circumstances where FWA is satisfied that there is duress, mistake or error. In this case, the Respondent submits there is no evidence of duress, mistake or error. Accordingly, it is submitted the application should be dismissed.
[16] I am not prepared to confine the discretion as sought by the Respondent, although, satisfaction as to whether there was duress, error or mistake are clearly relevant considerations.
[17] On the Applicant’s own evidence, the Applicant:
● Was informed by his Representative that in his view the Applicant’s case did not have a reasonable prospect of success;
● Was advised by his Representative to discontinue;
● Accepted his Representative’s advice;
● Instructed his Representative to file a Notice of Discontinuance on his behalf.
[18] There is no evidence that the Applicant did not understand the consequences of filing a Notice of Discontinuance or that he questioned his Representative’s advice or asked for further time to consider the advice.
Conclusion
[19] In the circumstances, I have decided to refuse to set aside the Notice of Discontinuance. An Order dismissing the application will be issued today.
COMMISSIONER
Appearances:
Mr G. Frew - Applicant
Ms C. Fielding - Representative of the Respondent
Hearing details:
2012
Brisbane
June, 22
1 [2010] FWA 5669
2 Ibid at [3]
3 Ibid at [3]
4 [2010] FWA 5669 at [5]
5 Transcript of Hearing - 22 June 2012 at [152] and [186]
6 Ibid at [372]
7 Ibid at [392] to [402]
8 Ibid at [152] and [248]
9 Ibid
10 Ibid at [172], [416], [459]
11 Ibid at [178] and [420]
12 Ibid at [259] to [260]
13 Transcript of Hearing - 22 June 2012 at [178], [200], [414], [457], [465]
14 Transcript of Hearing - 22 June 2012 at [154] and [156]
15 Ibid at [252] and [261]
16 Ibid at [176]
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