Olivia Gacayan v Mitchell's Quality Foods T/A Lite N' Easy

[2016] FWC 4348

[2016] FWC 4348

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Olivia Gacayan
v
Mitchell’s Quality Foods T/A Lite N’ Easy
(U2016/5755)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 30 JUNE 2016

Application for relief from unfair dismissal.

[1] Mrs Olivia Gacayan alleged that the termination of her employment by Mitchell’s Quality Foods T/A Lite N’ Easy was unfair. G D Mitchell Enterprises Pty Ltd filed an employer response and denied the allegations.

[2] On 12 May 2016, Mr Cesar Gacayan, Mrs Gacayan’s representative, filed a notice of discontinuance.

[3] Mrs Gacayan has applied to have the notice of discontinuance set aside as it was filed by mistake.

The history of the application

[4] To understand this submission it is necessary to set out the history of this matter.

[5] On 9 May 2016, Mrs Gacayan participated in a conciliation conducted by a member of staff of the Commission.

[6] The Conciliator’s file note stated that:

“During the conciliation A said considering whether to continue with application and/or pursue other possible avenues; I told A that discontinuing is final, she has 3 days (to COB 12.5/16) to think about it, if she changes her mind she has to let me know in that time in writing, otherwise file closed as discontinued after that time and I confirm this position in writing. Advised R of position.”

[7] The Conciliator sent a letter by email to the parties on the same day. It stated as follows:

“Thank you for your participation in the conciliation of the above matter during which the Applicant advised she would discontinue the application.

As discussed, the Applicant has three business days from today to decide if they wish to continue with her application for unfair dismissal remedy.

I confirm that I informed both parties at the conclusion of the conciliation that:

1. If the Applicant decides to continue with the claim against the Respondent, the Applicant must let me know that in writing by COB on Thursday 12 May 2016. If I do not hear from the Applicant by then, confirming that they wish to continue with their claim against the Respondent, the Fair Work Commission (the Commission) will treat the matter as finalised, and I will close the file.

2. If the Applicant decides not to continue with their application, this means that the Applicant’s claim against the Respondent ends and the Applicant will not be able to ask the Commission to relist the matter.

3. If the Applicant decides to end their claim against the Respondent, the Applicant should complete and return the Notice of Discontinuance (Form F50), a blank copy of which can be found below. Failure to provide a Notice of Discontinuance does not mean that the matter can be relisted. The Applicant should provide a copy of the Form F50 to the Respondent as well. This can be done by fax, email or by post. The Commission will refund the application fee, if applicable, within four to six weeks of receipt of the Form F50.”

[8] Mrs Gacayan said, that at the conciliation, the Conciliator told her that she could file a new application for general protection for discrimination and for negligence. He told her she would need to file a notice of discontinuance so she could file the general protections claim.

[9] In the email sent at by Mr Gacayan at 14.16, attaching the notice of discontinuance, he said:

“Good day. Thank you for assisting us and mediating us on the conciliation last Monday. I am attaching herewith Form 50 for my wife’s discontinuance of her calim (sic) towards Mitchels Quality Foods. But we are filing another submission regarding General Protections Discrimination on Termination.

Can you please guide us on the process and give us some forms as per conversation last Monday, we have 21 days to put the application (sic).”

[10] At 14.39 on the same day Mr Gacayan contacted the Commission and the file note made by a member of the Commission staff noted:

“A husband called asking how to go about a GP. I asked when was she dismissed and advised of OOT. He replied he had sent discontinuance for his wife UD as the conciliator told them they have lodged the incorrect application and they should lodge a GP. I advised he may lodge that application however he must take into account that the period for lodging an application is 21 days from dismissal. He replied that the conciliator told him that he had 3 days to think about the disco of the UD and then he had 21 days from that day to lodge a GP. I advised I cannot comment on what he believes the conciliator might have said and he must contact the conciliator to clarify that. He replied that was unfair and it wasn’t right. I advised we are bound by the FW Act legisl. & explained OOT procedures. He insisted re what the conciliator told him. I advised he must speak w the conciliator. He asked for the phone, I advised I can provide w a phone but it would be best he contacts the conciliator by email as the conciliator most likely will be on a concil. He asked for a reference I provided my name.”

[11] Mrs Gacayan described this conversation as Mr Gacayan being told that he could not lodge a new application because they were out of time. Mr Gacayan explained that the Conciliator had advised them to file the notice of discontinuance so that she could lodge her general protections application. He was told to contact the Conciliator.

[12] On the same day Mr Gacayan said he tried to ring the Conciliator and he then made a complaint about him.

[13] At 14.44 the same day Mr Gacayan sent an email to Conciliator and said:

“I’ve just rang Fairwork Commission and spoke to X. She told me that I cant apoptyu (sic) for a general protections discrimination because I am out of time frame. She said I can file general protection only 21 days from March 10, 2016 when my wife was terminated. In this regard this is not our conversation and I clearly remember that you said to us infront of my wife and my daughter that if we discontinue our option is to file a case of general protection, second option is anti discrimination and third is negligence. I don’t know if you give me wrong information.”

[14] At 15.17 the Conciliator responded and said:

“Thanks for your email.

My recollection is that I did say at the conference that there was a 21 day time limit for a general protection claim when involving termination, and that you were already outside that time at the date of the conference, and you could only lodge a late application if given leave, which is only granted in exceptional circumstances. I mentioned that I didn’t think there was a time limit for general protections claims not involving dismissal. I also said that the question of time limits for any other applications you were considering was one you should check and get advice on during the three day period your wife had to consider what to do about her unfair dismissal application.”

[15] At 15.25 Mr Gacayan replied as follows:

“So what we gonna do now are you giving us those exceptional circumstances. we’ve just signed a discontinuance which this is not our intention. We are hoping and asking you our options and you said these things to us.

So I would like to ask your good office to give us this favour so that we can lodge this application if not I would like to ask a reversal of discontinuance of our unfair dismissal Claim.”

[16] At 15.52 the Conciliator replied as follows:

“Olivia has until COB today to change her mind about discontinuing her unfair dismissal claim.

If you want to continue with your unfair dismissal claim can you please confirm that by return email. If so, I will refer your unfair dismissal application to arbitration.”

[17] At 15.58 Mr Gacayan replied:

“We’ve just send a copy to Mitchels Quality foods the form F50 at 2:22 pm. I don’t know how we gonna do about it. The only thing we know our intention is to get the right application of her as per your advise.”

[18] At 16.06 the Conciliator replied:

“Olivia, do you want me to refer your unfair dismissal application to arbitration?

You need to let me know by return email before 5pm today.”

[19] At 16.36 Mrs Gacayan replied:

“Yes.”

[20] Directions were issued and the matter was set down for hearing on 11 and 12 July in Brisbane. No objection to this course was raised by Mitchells.

[21] On 22 June 2016, the matter was referred to me as Panel Head Termination of Employment because the case manager became aware that a notice of discontinuance had been filed.

[22] On the same day I caused a letter to be sent to the parties which advised as follows:

“The file discloses that your representative filed a notice of discontinuance on 12 May 2016. A notice of discontinuance has the effect of bringing a proceeding to an end.

The Full Bench of the Fair Work Commission in AB v Tabcorp Holdings Limited [[2015] FWCFB 523] decided:

[11] We agree with the proposition that in certain circumstances a notice of discontinuance can, in effect, be set aside if it was filed by mistake or under duress. However we doubt that such a power may be exercised by the Commission. It seems to us that any such application would have to be made to a court - for a declaration that the notice was a nullity. As an arbitral body the Commission cannot grant declaratory relief. The issue does not arise in this case because the Deputy President dismissed the application before her.

[12] Of course, as was observed in Narayan, filing a notice of discontinuance does not preclude the filing of a further unfair dismissal application (see Narayan at [15]-[30]), though such an application will be subject to the time periods specified in s.394(3). In deciding whether to extend the time for the filing of such an application it would be open to the Commission to consider the circumstances surrounding the filing of the earlier notice of discontinuance, including whether it was filed by mistake or under duress.

Accordingly, the hearing dates of 11 and 12 July 2016 have been vacated.

Please advise by noon on 1 July 2016 if, in light of the Full Bench decision, if you wish to pursue the application to set aside the notice of discontinuance. If you do, Deputy President Gooley directs that you file and serve by noon on 1 July 2016 any evidence and submissions in support of your application.”

The proceedings

[23] Both Mrs Gacayan and Mitchells filed submissions. The matter was heard by way of a telephone conference. I granted permission for Mitchells to be represented by a paid agent because, while there was no factual dispute between the parties, the legal issue involved some complexity and I considered that it would enable the matter to be dealt with more efficiently. There was no opposition to permission being granted. There was no factual dispute between the parties though they drew different conclusions from what occurred.

The submissions

[24] In her submissions, Mrs Gacayan set out the history of this matter. She relies upon what she describes as “communication error and irregularities committed and manifestation of the conciliator blindsiding the applicant of a false direction to settle the matter”. It was her submission that she did not intend to discontinue the case. She assumed that the request she had made to the Conciliator to reverse the notice of discontinuance had been granted. She relied upon the decision of the Commission in A Kontogouris v Tradeflex Services Pty Ltd  1 to support her application to have the notice of discontinuance set aside. In that decision Senior Deputy President Watson set aside a notice of discontinuance. Other decisions of the Commission where notices of discontinuances were set aside were also referred to.

[25] At the hearing it was submitted that the notice filed was not a notice of discontinuance because Mrs Gacayan did not tick any of the boxes on the form. Mrs Gacayan submitted that she had been forced by the Conciliator to file the notice of discontinuance. Further she submitted that she did so under duress.

[26] She further submitted that the Conciliator in fact set aside the notice of discontinuance and therefore the matter should be allowed to proceed. She also relied on the failure of the case manager to pick up earlier that a notice of discontinuance had been filed; that directions had been issued and a hearing date set; and the failure of Mitchell to object to the matter proceeding to support her submission that the notice of discontinuance should be set aside.

Mitchell’s submissions

[27] Mitchell submitted that Mrs Gacayan had not established that she had filed the notice of discontinuance by mistake. It was submitted that Mrs Gacayan filed the notice of discontinuance so that she could file a general protections application and it was only after she realised that the she would need to get an extension of time to lodge that application that she sought to have her notice of discontinuance set aside. It submitted that there was no duress by it or the Conciliator. It submitted that Mrs Gacayan was given an opportunity to consider her position and she did.

[28] It submitted that the Commission does not have the power to set aside a notice of discontinuance.

Did Mrs Gacayan file a notice of discontinuance?

[29] I do not accept the submission that the notice filed was not a notice of discontinuance. The notice itself provides at the top that “this is a notice of discontinuance of an application with the Fair Work Commission in accordance with section 588 of the Fair Work Act 2009.” That Mrs Gacayan did not tick the box does not alter the fact that she filed the notice. Further the email attaching the notice makes it clear that the unfair dismissal application was being discontinued to enable her to make a general protections application.

Could the Conciliator set aside the notice of discontinuance?

[30] As I advised the parties at the hearing the decision of the Conciliator to refer this matter to arbitration in circumstances where a notice of discontinuance has been filed was an error. A Conciliator is not authorised to disregard a notice of discontinuance. I expressed my regret that this had occurred.

Did Mrs Gacayan file the notice of discontinuance by mistake or duress?

[31] Given my decision in this matter, it is not necessary for me to determine this matter.

Does the Commission have power under s.586 of the Act to set aside a notice of discontinuance?

[32] The decisions relied upon by Mrs Gacayan were made before the decisions referred to in my letter. The Full Bench in Narayan v MW Engineers Pty Ltd 2reviewed those decisions and reached a different conclusion. As I explained at the hearing the relevant decisions binding me are the decisions of the Full Bench.

[33] Whatever the merits of Mrs Gacayan’s complaint about how this matter was dealt with by the Conciliator, a notice of discontinuance was filed. While the comments of the Full Bench in AB v Tabcorp Holdings Limited 3that a notice of discontinuance cannot be set aside by the Commission are obiter, it is clear that from the decision of the Full Bench in Narayan4 that s.586 does not empower the Commission to set aside a notice of discontinuance. The Commission’s powers are derived from the Act. I was not taken to any other statutory provision in the Act that would empower me to set aside a notice of discontinuance even if I had found it was filed by mistake.

[34] As was noted in Narayan there is nothing to prevent Mrs Gacayan from lodging a new application. However the 21 day time limit has passed and to be granted an extension of time she will need to satisfy the Commission that there are exceptional circumstances.

[35] Accordingly Mrs Gacayan’s application to set aside the notice of discontinuance is dismissed.

DEPUTY PRESIDENT

Appearances:

O. Gacayan and C. Gacayan for the Applicant.

L. Waters for the Respondent.

Hearing details:

2016.

Melbourne and Brisbane, by telephone link:

June 30.

 1   PR902620

 2   [2013] FWCFB 2530

 3   [2015] FWCFB 523

 4   {2013] FWCFB 2530

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