Ms Zareen Nisha v Australian Taxation Office

[2016] FWC 8581

[2016] FWC 8581

FAIR WORK COMMISSION

DECISION

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

Ms Zareen Nisha
v
Australian Taxation Office
(U2016/11405)

VICE PRESIDENT CATANZARITI SYDNEY, 30 NOVEMBER 2016

Application for relief from unfair dismissal – application dismissed.

[1] Ms Zareen Nisha was employed by the Australian Taxation Office (ATO) from 24 April 2015 until 9 September 2016. On 14 September 2016, Ms Nisha lodged an unfair dismissal application pursuant to section 394 of the Fair Work Act 2009 (the Act).

[2] On 24 October 2016, a conciliation between the parties was conducted before a conciliator of the Fair Work Commission (FWC). During the conciliation, Ms Nisha was represented by a lawyer, Mr William Onishi. By email to the parties on 24 October 2016, the FWC confirmed that the parties had reached a settlement during that conciliation.

[3] On 25 October 2016, Ms Nisha informed the FWC that Mr Onishi is no longer representing her and that she no longer agrees to the settlement that was reached on 24 October 2016. Although the FWC informed Ms Nisha that a binding agreement had been reached on 24 October 2016, Ms Nisha reiterated her request for her application to proceed to arbitration. Ms Nisha’s request, and the unfair dismissal application that Ms Nisha lodged, was forwarded to my chambers on 25 October 2016.

[4] On 27 October 2016, my chambers listed the matter for directions to take place by teleconference on 8 November 2016. During the teleconference on 8 November 2016, Ms Nisha asserted that a cooling off period followed the conciliation and that she rescinded from the agreement during that cooling off period. The ATO contended that there is no cooling off period on the basis that Ms Nisha was legally represented. The ATO informed me that it intended to put on a formal application to dismiss the matter in light of its submission that a binding settlement remains in force.

[5] I informed the parties that the ATO would have seven days to put on its formal application to dismiss the matter and that Ms Nisha would have seven days to respond thereafter. On 9 November 2016, the ATO filed its formal application to dismiss the matter. As at 21 November 2016, my chambers had not received a response from Ms Nisha. On 21 November 2016, my chambers emailed Ms Nisha to inform her that if she did not file submissions in response to the ATO’s application by 5:00pm on 25 November 2016, I would proceed to decide the outcome of the ATO’s application to dismiss the matter.

The ATO’s Submissions

[6] The ATO contended that a legally binding settlement agreement was reached on 24 October 2016. The ATO asserted that because Ms Nisha had legal representation before and during the conciliation that took place on 24 October 2016, there was no cooling off period.

[7] The ATO submitted that section 587 of the Act provides a broad discretion to dismiss applications that have no reasonable prospects of success. The ATO contended that because the parties reached a binding settlement agreement on 24 October 2016, the matter has no reasonable prospects of success and should be dismissed pursuant to section 587 of the Act.

Ms Nisha’s Submissions

[8] Between 8 November 2016 and 25 November 2016, my chambers received a series of emails from Ms Nisha. In the first email, received on 16 November 2016, Ms Nisha asked my chambers whether she is able to apply for relief pursuant to the Act’s general protections regime. In response to this email, my chambers informed Ms Nisha that the FWC is not permitted to provide legal advice.

[9] In the second email, received on 17 November 2016, Ms Nisha forwarded to my chambers confirmation of an interview that appears to have taken place on 8 November 2016. In the third email, on 22 November 2016, Ms Nisha carbon copied my chambers into an email conversation between herself, Mr Onishi, and the ATO in which Ms Nisha informed Mr Onishi that she would pay him once she was paid by the ATO. In the fourth email, on 23 November 2016, Ms Nisha informed my chambers that she is ‘trying to clarify the issue as a casual whether I can qualify.’ In the fifth email, on 23 November 2016, Ms Nisha carbon copied my chambers into an email conversation between herself, Mr Onishi, and an individual from Maurice Blackburn.

[10] None of these emails responded to the ATO’s formal application to dismiss the matter. The only submission that I have received from Ms Nisha that responds to the ATO’s application to dismiss the matter are the assertions that Ms Nisha made during the teleconference on 8 November 2016. Specifically, Ms Nisha asserted that there was a cooling off period during which she was entitled to rescind from the agreement that was reached on 24 October 2016.

Consideration

[11] The FWC’s three day cooling off period for unfair dismissal conciliation conferences only applies where one party is unrepresented and only applies to conferences conducted by FWC conciliators. The three day cooling off period does not apply to conferences conducted by FWC members.

[12] The conciliation on 24 October 2016 was conducted by a FWC conciliator. During that conciliation, Ms Nisha was represented by Mr Onishi and the ATO was represented by its General Counsel, Ms Russo James. On the basis that both parties were represented at the conciliation, the cooling off period does not apply.

[13] It follows that the binding settlement agreement that was reached on 24 October 2016 remains in force. As a settlement has been reached, and remains in force, there are no reasonable prospects of success for Ms Nisha’s unfair dismissal application pursuant to section 587 of the Act.

Conclusion

[14] Pursuant to section 587 of the Act, the unfair dismissal application is dismissed.

VICE PRESIDENT

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