Mrs Irene Tutin v Galaxy No. 1 Pty Ltd T/A ESP TecForce

[2013] FWC 691

[2013] FWC 691

FAIR WORK COMMISSION

DECISION

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

Mrs Irene Tutin
v
Galaxy No. 1 Pty Ltd T/A ESP TecForce
(U2012/13865)

COMMISSIONER ROE MELBOURNE, 1 FEBRUARY 2013

Termination of employment - application to set aside notice of discontinuance.

[1] This matter concerns an application to set aside a notice of discontinuance of the proceedings in matter number U2012/13865. That matter is an application by Ms Irene Tutin (the Applicant) for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act2009 (the FW Act). The respondent employer is Galaxy No1 Pty Ltd T/A ESP TecForce (the Respondent).

[2] The parties agreed that I should deal with the matter on the basis of the written material before me as at 29 January 2013. I have considered:

● An outline of submissions provided by both parties.
● The Application for Unfair Dismissal Remedy made on 1 October 2012 by A Whole New Approach Pty Ltd (AWNA) on behalf of the Applicant.
● The correspondence from Amnon Kelemen of Employee Assist of 10 October 2012 to AWNA confirming that Employee Assist had been retained by the Applicant in respect to the application and requesting AWNA to file a notice of representative ceasing to act.
● The correspondence by email of 10 October 2012 from Amnon Kelemen of Employee Assist filing a notice that they were commencing to act as a representative for the Applicant in the matter and also notifying that AWNA was to file a notice ceasing to act in due course. A copy was sent to AWNA.
● The correspondence by email of 10 October 2012 serving the notice of representative commencing to act on the Respondent.
● A notice purporting to discontinue U2012/13865 signed by AWNA.
● The Application by Employee Assist on behalf of the Applicant to seek to have the notice of discontinuance set aside on the grounds that “the notice of discontinuance was filed without authority by the applicant’s previous representative.”
● A notice of representative ceasing to act filed on 18 December 2012 by Gary Pinchen on behalf of AWNA.
● A Form F3 Response to the Unfair Dismissal Application from the Respondent dated 22 January 2013.

[3] The first issue for determination in this matter is whether the Fair Work Commission has the power to set aside a notice of discontinuance, as the Applicant seeks. If there is power then I must decide if Fair Work Commission should exercise its discretion to set aside the notice of discontinuance.

[4] The Fair Work Commission’s power to set aside a notice of discontinuance is well settled. In this regard, I refer to the decision of Senior Deputy President Harrison in Ray Aguilar v Qantas Airways Limited. 1

[5] In that matter, Qantas submitted that there was no power to set aside a notice of discontinuance. Qantas acknowledged that under the provisions of the Workplace Relations Act1996 (the WR Act)the Australian Industrial Relations Commission did have the power to set aside such notices relying on the then provisions, section 111(1)(q) and section 111(1)(t). Qantas submitted that there was no equivalent power under the FW Actto set aside a notice of discontinuance. Her Honour Senior Deputy President Harrison found however, that section 586 of the FW Act was a source of power to set aside a notice of discontinuance.

[6] Commissioner Harrison in Tamara Trezise v Universal Music Australia Pty Limited T/A Universal Music Australia 2and Commissioner Lee in Mary Dababie v Kaisercraft3 referred to the decision of Senior Deputy President Harrison in Ray Aguilar v Qantas Airways Limited4 and adopted Her Honour’s approach that the power in section 586 of the FW Act was able to be used in order to set aside a notice of discontinuance and that the statutory purpose of section 586 should be construed broadly as providing a source of power similar to that available under section 111(1)(t) of the WR Act.

[7] Section 586 of the FW Act reads:

“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.”

[8] I adopt the approach that was taken in the decisions referred to above and find that there is power under section 586 of the FW Act to allow the Fair Work Commission to set aside a notice of discontinuance.

[9] In considering the approach that the Fair Work Commission should take to the exercise of its discretion in these matters I have considered a decision of Senior Deputy President Watson in A Kontogouris v Tradeflex Services Group Pty Ltd. 5 In that decision, which was issued in 2001, the Senior Deputy President was dealing with the analogous provisions of section 111(1)(t) and (q) of the WR Act but the approach that he adopted, given my reasoning that section 586 of the FW Actcan be used on the same basis, is relevant to these proceedings. In particular I refer to paragraphs [12] and [14] of that decision which provides:

“[12] I accept that the Notice of Discontinuance is intended to bring finality to an application under section 170CE of the Act and it would be unusual for the Commission to exercise its general powers to grant leave to an applicant to withdraw such a notice.

...

[14] In circumstances where I am satisfied that the applicant executed the Notice of Discontinuance in error and never intended to discontinue his application, I am prepared to take the unusual step of granting leave to the applicant to withdraw his Notice of Discontinuance.” 6

[10] I am satisfied from the material before me that the Applicant never intended to discontinue her application. The new representative notified FWA and the Respondent prior to the notice of discontinuance being filed by another representative that the new representative was seeking to act for the Applicant. The new representative on behalf of the Applicant acted promptly to lodge the application to set aside the notice of discontinuance as soon as they were aware of it. The delay in filing a notice to cease representation by the old representative (AWNA) was purely the responsibility of AWNA. The new representative on behalf of the Applicant has signalled such action was necessary prior to the notice of discontinuance. There is nothing before me to suggest that the new representative has not been acting on the instructions of the Applicant. I am also satisfied that the notice of discontinuance was in error.

[11] The conditions referred to by Senior Deputy President Watson in A Kontogouris v Tradeflex Services Group Pty Ltd have been met.

[12] The Respondent suggests that I should have regard to the policy considerations for exceptional circumstances as set out in Section 394(3) of the Act. In my view this submission is misplaced as the criteria in Section 394(3) are for an extension of time and there is no dispute that the original application was made on 4 October 2012 and the employment was terminated on 26 September 2012. In my view if the notice of discontinuance is set aside I can rely on the original application date. I accept that in deciding whether or not to exercise my discretion I should consider relevant matters and these might include whether the Application is obviously without merit, any prejudice to the employer, and any unreasonable delays.

[13] There have been no unreasonable delays by the Applicant in this matter. There is some prejudice to the Respondent but this is not particularly significant as the delay occasioned by this application to set aside the notice of discontinuance is not exceptionally long.

[14] The Respondent alleges that the Applicant earned more than the high income threshold but the Applicant denies this. I am not in a position to conclude that the Application is without merit.

[15] The Respondent suggests that there is nothing before me as to the Applicant’s intentions and nothing to prove that Employee Assist rather than AWNA was acting for the Applicant at the time that the Notice of Discontinuance was filed. I agree that this is not established beyond doubt but I am satisfied that the sequence of events and the evidence before me is sufficient for me to be satisfied that the Applicant did not intend to discontinue the Application at the time the Notice of Discontinuance was submitted.

[16] I am therefore satisfied that it is appropriate that the notice of discontinuance be set aside. An Order will be issued setting aside the notice of discontinuance in this matter and further directions will be issued by Fair Work Commission for the progress of the application under section 394 of the FW Act for an unfair dismissal remedy.

COMMISSIONER

 1   [2010] FWA 5669.

 2   [2011] FWA 4496.

 3   [2012] FWA 1995.

 4   [2010] FWA 5669.

 5   PR902620.

 6   A Kontogouris v Tradeflex Services Group Pty Ltd, PR902620, [12]-[14].

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