Mr Steve Ryan v The Geo Group Australia Pty Ltd t/a Junee Correctional Centre
[2012] FWA 5412
•27 JUNE 2012
[2012] FWA 5412 |
|
DECISION |
Fair Work Act 2009
s 394 - Application for unfair dismissal remedy
Mr Steve Ryan
v
The GEO Group Australia Pty Ltd t/a Junee Correctional Centre
(U2012/104)
DEPUTY PRESIDENT SAMS | SYDNEY, 27 JUNE 2012 |
Application for unfair dismissal remedy - setting aside a notice of discontinuance - interests of justice - orders made.
[1] United Voice, NSW Branch (‘the Union’) filed an application for an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (‘the Act’) on behalf of its member, Mr Steve Ryan (‘the applicant’). The applicant was dismissed from his employment as a correctional officer at the Junee Correctional Centre on 9 December 2011 having been employed for a period of 12 years.
[2] The reasons for the applicant’s dismissal are not materially relevant for the purposes of this decision - although I apprehend from the documents filed in the matter, that the reasons are vigorously contested. However, this decision will deal with a discrete interlocutory matter; namely, whether the application has been properly discontinued. It is to that matter which I now turn.
[3] At the outset, I would observe that it is not entirely clear what provision of the Act permits the setting aside of a notice of discontinuance. Section 588 governs the circumstances under which ‘a person who applied to FWA may discontinue the application’, but is silent on FWA’s power to set aside or revoke a notice of discontinuance. That said, I agree with Rafaelli C in Gibson v Darley Piper Australia [2011] FWA 6148, in which the Commissioner identified the closest equivalent provision to s 111(g) and (t) of the former Workplace Relations Act as s 586 of the Act. This section is as follows:
‘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.’
[4] However, even if s 586 is not the appropriate section for dealing with such an application, I am of the view that the Tribunal has an inherent jurisdiction to set aside a notice of discontinuance where the interests of justice demand it. I believe that to be the position in this case and what follows are my reasons for so concluding.
[5] After the applicant received notice of his dismissal on 9 December 2011, he lodged an internal appeal, according to the GEO Group Australia Pty Ltd’s (‘the respondent’) disciplinary policy. That appeal was dismissed on 17 January 2012 and the Union filed his unfair dismissal claim on 24 January 2012. There appears to be no argument that the 14 day time period for filing this application, as required by s 394(2) of the Act, commenced when he received notice that his internal appeal was unsuccessful, and his application is therefore within time. The matter was listed for a phone conciliation on 16 February 2012 which was cancelled and relisted to 21 February 2012. However, no conciliation has taken place.
[6] Nevertheless, it may be presumed that there has been some communication between the Union and the respondent, because on 23 February 2012, Ms Georgia Potter-Butler, an Industrial Officer of the Union, sent an email to Fair Work Australia (FWA) and the respondent in the following terms:
‘The member has just instructed me he does not wish to proceed with tomorrow’s conciliation. As such please find the attached Notice of Discontinuance. Thank you for your assistance and apologies to all for any inconvenience caused.’
[7] The next day the applicant filed a non specific application (F1) with FWA in which he sought the setting aside of the notice of discontinuance, on the grounds that he had neither instructed or authorised the Union to file a notice of discontinuance on his behalf and he wished his unfair dismissal claim to proceed.
[8] One day later, presumably in response to inquiries from the respondent, Ms Potter-Butler sent the following email to Mr Rod Casimir, the respondent’s Industrial Relations Manager:
‘I’m under the instruction from the Branch Secretary that we will not be able to provide you with any statutory declarations with respect the nature of the conversations with Mr Ryan.
However we stand by the notice of discontinuance we filed under the instruction of Mr Ryan.’
[9] After directions were issued in this matter, the applicant filed a statutory declaration, wherein he attested to a conversation with Ms Potter-Butler on or about 23 February 2012. I do not intend to canvass the claims made by the applicant concerning this conversation or the applicant’s conversations with others. Ms Potter-Butler has had no opportunity to give her version of the conversation, but more importantly, I do not consider the substance of these conversations to be materially relevant to the determination of this matter. It is plain enough, as the applicant made clear in a phone hearing on 25 June 2012, that at no time did he instruct, authorise or otherwise ask the Union to discontinue his unfair dismissal application. I accept his submission in that regard.
[10] A not dissimilar situation faced Simpson C in Merolla v Mainstreet International Marketing Group Pty Ltd [2010] FWA 7929, although that case involved the question of whether a paid agent had been authorised by an applicant to discontinue her application. In that case, the Commissioner said at para 9-10:
‘There was no material produced by the Respondent to disclose that a settlement had been reached between the parties, or any strong evidence that the Applicant had authorised their representative at the time to discontinue the application.
On the basis of the oral evidence provided by the Applicant and the evidence being offered of written agreement between the Applicant and her representative at the time which did not provide him the authority to discontinue the matter on her behalf, I find the application to discontinue filed by Mr Kelemen on 16 August 2010 a nullity in light of it having been filed without the authority of the applicant.’
[11] At the hearing, Mr Casimir did not put any evidence or submissions on the present issue before the Tribunal. His position could best be described as ‘neutral’. Given the respondent’s position and the lack of any contrary evidence, the Tribunal is prepared to accept that a case has been made out that the discontinuance of this application should be set aside. One view of Ms Potter-Butler’s email of 23 February 2012 could be that the applicant had merely refused to participate in conciliation and Ms Potter-Butler interpreted this as him not wanting to pursue his application any further. If this is right, then it amounts to an unintended confusion, the serious consequences of which should be rectified.
[12] I hasten to add that I have made no prima facie determination of the merits of the applicant’s case. At best it might be said that his prospects of success are not particularly strong if the allegations against him are made out; but it could not be contended that his case is ‘so manifestly groundless’ or ‘obviously untenable that it cannot possibly succeed’. See General Steel Industries Inc v Commissioner for Railways (NSW)[1964] HCA 69; (1964) 112 CLR 125. For present purposes, such a finding must tip the balance of convenience in the applicant’s favour. In any event, in my view, the seriousness of the allegations and the applicant’s denial of them, dictate that the interests of justice are best served by allowing his claim to be considered, subject to a formal conciliation, which for reasons not entirely clear to me, has so far not occurred. Accordingly, the matter will be remitted to the Unfair Dismissal Unit for allocation to a Fair Work Conciliator.
[13] An order setting aside the notice of discontinuance in this matter will be published contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
Mr S Ryan - unrepresented
Mr R Casimir, for the respondent
Hearing details:
2012
SYDNEY
25 June
Printed by authority of the Commonwealth Government Printer
<Price code C, PR525582>
0