Mr Luke Moy v Greenmount Beach Club

[2014] FWC 603

[2014] FWC 603

FAIR WORK COMMISSION

DECISION

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

Mr Luke Moy
v
Greenmount Beach Club
(U2013/3380)

COMMISSIONER WILSON MELBOURNE, 24 JANUARY 2014

Application for relief from unfair dismissal.

[1] Luke Moy made an application for unfair dismissal to the Fair Work Commission on 11 October 2013 against his former employer, Greenmount Beach Club of Tweed Heads. The application was filed on his behalf by his representative, Amnon Kelemen of Employee Assist.

[2] In accordance with usual procedure, Mr Moy’s application was listed for telephone conciliation conference on 26 November 2013. The parties were notified of the conference and required to provide contact details. The file records Mr Moy as having provided his contact number, as did the Greenmount Beach Club. It does not record Mr Kelemen as providing contact details in accordance with the direction, although it is noted the originating application provided his telephone numbers.

[3] A Notice of Discontinuance in relation to this matter was filed in the Commission on 26 November 2013. The e-filing receipt for the notice indicates a date and time of Tuesday, 26 November 2013 at 9:25 AM and was sent to the email address of the person who lodged the Notice of Discontinuance, Mr Kelemen.

[4] As a result of receiving the Notice of Discontinuance, the Commission cancelled the telephone conciliation conference, which had been scheduled for 11.15am.

[5] Mr Moy now asserts that he never gave instructions for the discontinuance of his matter and seeks his application be relisted for a telephone conciliation conference. He has provided a Statutory Declaration in relation to his knowledge of these matters, which says the following;

“1. I was scheduled for a phone conciliation meeting to be held on 26th November 2013 at 11.15am

2. I waited by the phone, and after 30min I contacted Fair Work to find out what was going on. Upon talking to them I was told the matter had been discontinued by my lawyers. I said I hadn't made that decision and wasn't aware the decision had been made. I was told to contact my lawyer, Mr. Amnon Kelemen, to find out what had happened and that I should also contact Fair Work explaining that I hadn't made the decision to discontinue and to ask to re-schedule the hearing.

3. I tried to make contact with Mr Kelemen with a voice message and an email to find out what happened.. Mr Kelemen eventually emailed back saying they had tried to contact me and sent an email on the Monday the 25th November at 3.45pm to discuss the case. Mr Kelemen then said that because they couldn't get a hold of me, they presumed that I didn't want to go ahead with the case. I emailed them back saying that I never wanted it cancelled and asked if the meeting can be rescheduled.

4. I emailed Fair Work myself on the 10th December asking if l could try and have the hearing rescheduled.

5. I spoke with [name redacted] from Fair Work on Wednesday 9th January 2014 and she explained the steps towards trying to re-schedule the hearing.

6. At no point did I want the meeting to be cancelled, and never asked Mr. Kelemen to discontinue the Conciliation. I felt it was also unfair that I received Greenmount's Response on Friday 22nd 2013 (sic) in the morning, giving only 2 days (Friday and Monday) to be contacted and sort out our case, with a lot of new information that wasn't present in my termination meeting”.

[6] Despite the above information provided by Mr Moy, the initial threshold issue to be determined is whether I have the power to determine an application to set aside a Notice of Discontinuance. This issue was settled in the recent Full Bench decision of Chandra Gupta Narayan v MW Engineers Pty Ltd, in which it was held:

“...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 file by mistake or under duress. In such circumstances, the general law may operate to render the notice a nullity”. 1

[7] I am therefore unable to determine this application to set aside the Notice of Discontinuance. However, I note that in the above case, the Full Bench went on to consider alternative means of pursuing an unfair dismissal claim after a Notice of Discontinuance has been filed. Relevantly, the Full Bench wrote:

“[24] If an unfair dismissal applicant (such as Mr Narayan) unconditionally discontinues their application before the Commission has determined it on the merits then they (Mr Narayan) can make a fresh application in respect of the same dismissal.

[25] Two observations should be noted in relation to any such application

[26] First, if the initial unfair dismissal application has been discontinued after a settlement agreement had been concluded then the Commission may, on application by the employer, dismiss the subsequent unfair dismissal application pursuant to s.399A(1)(c).

[27] Second, the subsequent application must be accompanied by the prescribed application fee ($64.20)(s.395 and reg 3.07) and must be made within 21 days after the dismissal took effect or within such further period as the Commission allows (s.394(2)).

[28] The first observation does not apply to this case (as there was no settlement agreement), but the second does.

[29] In this case, if Mr Narayan was minded to make a further unfair dismissal application in relation to his dismissal by the respondent he will need to apply to extend the time period within which to make the application. Section 394(3) is relevant in this regard. It states:

“(3) The FWC may allow a further period for the application to be made ... if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”  2

[8] Subject to the above considerations, Mr Moy is at liberty to file another unfair dismissal application in relation to the termination of his employment by the respondent. Any such application will be subject to the time periods specified in s.394(3) of the Fair Work Act 2009.

COMMISSIONER

 1   [2013] FWCFB 2530, at [14]

 2   Ibid.

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