Legal Research
Cases
Narayan v MW Engineers Pty Ltd

Narayan v MW Engineers Pty Ltd

Case [2013] FWCFB 2530 29 April 2013

Unfair Dismissal

Jurisdiction

Appeal

Employment & Labour Law

No judgment structure available for this case.

Type to search within this case.

[2013] FWCFB 2530

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Chandra Gupta Narayan
v
MW Engineers Pty Ltd
(C2013/3659)

JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT SAMS
COMMISSIONER BULL

MELBOURNE, 29 APRIL 2013

Unfair dismissal appeal - s.604 Fair Work Act 2009 (Cth) - appeal from a decision to dismiss an application to set aside notice of discontinuance -s.586 is a power to correct or amend an application, not a power to revoke or set aside a notice of discontinuance - application discontinued - no impediment to subsequent application - subject to time limits - ss.725 and 729 considered - permission to appeal granted - appeal upheld and decision quashed.

[1] The appellant, Mr Chandra Gupta Narayan was dismissed from his employment with the respondent on 5 June 2012, by reason of redundancy. Mr Narayan made an application for an unfair dismissal remedy on 21 June 2012. The application was listed for conciliation on 17 July 2012. On 16 July, Mr Narayan contacted the registry and advised that he was withdrawing his application. A formal notice of discontinuance was filed on 31 July 2012. On 10 December 2012 Mr Narayan contacted the Fair Work Commission 1 and indicated he wished to reopen his matter. Senior Deputy President Hamberger dealt with the matter based on written material submitted by the parties and decided not to grant Mr Narayan’s application to revoke his notice of discontinuance. Mr Narayan has appealed his Honour’s decision and that is the matter before us.

[2] The matter before the Senior Deputy President was an application to revoke the notice of discontinuance filed by Mr Narayan on 31 July 2012. His Honour’s decision is encapsulated in the following paragraphs:

“[11] The issue to be determined in this matter is whether it is appropriate in the circumstances for the Fair Work Commission to set aside the notice of discontinuance.

[12] Section 586 of the Act states:

‘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.’

[13] The power in s.586, and Fair Work Australia’s ability to set aside a notice of discontinuance, was considered by Senior Deputy President Harrison in Aguilar v. Qantas 2. In that decision Her Honour ‘assumed in the Applicant’s favour that s.586 is a source of power’ to set aside a notice of discontinuance. I will make the same assumption.

[14] However while I am willing to assume that there is power to set aside notices of discontinuance it would be contrary to the public interest for such notices to be set aside other than in exceptional circumstances. In general I would be reluctant to exercise any discretion to set aside notices of discontinuance other than in cases of duress or error. It could also be appropriate to set aside notices of discontinuance where a notice…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Narayan v MW Engineers Pty Ltd

Details

AGLC: Narayan v MW Engineers Pty Ltd [2013] FWCFB 2530
Case: [2013] FWCFB 2530
Decision Date: 29 APRIL 2013

CaseChat Overview and Summary

Narayan brought a claim against MW Engineers in the Federal Circuit and Family Court of Australia, arguing that his dismissal was unfair. The dispute centred around the interpretation and application of sections 586 and 604 of the Fair Work Act 2009, specifically regarding the power to correct or amend an application and the right to appeal a dismissal decision. Narayan sought to appeal a decision to dismiss his application to set aside a notice of discontinuance. The primary legal issue was whether section 586 of the Act provided the Court with the authority to revoke or set aside a notice of discontinuance. Narayan argued that the Court's power to amend an application under section 586 included the ability to revoke or set aside a notice of discontinuance. MW Engineers contended that the power was limited to correcting or amending the application and did not extend to revoking or setting aside a notice of discontinuance.

The Court found that section 586 of the Fair Work Act 2009 provided a power to correct or amend an application, but not to revoke or set aside a notice of discontinuance. It held that the application had been validly discontinued, and there was no impediment to Narayan making a subsequent application, subject to the relevant time limits. The Court also considered sections 725 and 729 of the Act, which relate to the dismissal of applications and the right to appeal, respectively. The Court concluded that the appeal was not frivolous or vexatious, and granted permission to appeal. The appeal was subsequently upheld, and the decision to dismiss Narayan's application to set aside the notice of discontinuance was quashed.

The Court ordered that the appeal be allowed, and the decision of the Federal Circuit and Family Court of Australia to dismiss Narayan's application to set aside the notice of discontinuance be quashed. The Court did not make any orders regarding the substantive merits of Narayan's unfair dismissal claim, as the focus of the appeal was on the procedural issue of the power to set aside a notice of discontinuance. Narayan was free to make a new application, provided he complied with the relevant time limits and other procedural requirements.

Orders