Ross Kennedy v Commonwealth of Australia Department of Industry, Innovation, Science & Tertiary Education

[2013] FWC 6014

[2013] FWC 6014

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ross Kennedy
v
Commonwealth of Australia Department of Industry, Innovation, Science & Tertiary Education
(U2012/17132)

COMMISSIONER DEEGAN CANBERRA, 22 AUGUST 2013

Application to set aside Form F50 Notice of Discontinuance.

[1] On 24 December 2012, Mr Ross Kennedy (the applicant) made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by the Department of Industry, Innovation, Science & Tertiary Education (the employer) on 19 July 2012 was unfair.

[2] The matter was the subject of an unsuccessful conciliation conference which took place on 31 January 2013. Directions were subsequently issued and the matter was listed for a hearing to determine whether further time for lodgement of the application would be allowed under s.394(2)(b) of the Act, as the application had not been lodged within 14 days of the dismissal taking effect, as required by s.394(2)(a).

[3] On 24 February 2013, the applicant sent an email to the relevant member of the Fair Work Commission (the Commission) indicating that he wished to discontinue the application. The applicant was provided with a Form F50 Notice of Discontinuance (F50), which he completed and returned to the Commission on 5 March 2013. The file was closed that day.

[4] On 10 July 2013, the applicant lodged an application seeking to have the F50 set aside.

[5] The applicant filed submissions and numerous documents in support of his application to have the F50 set aside. He also gave evidence at the hearing.

[6] At the hearing the respondent sought permission to be represented by a solicitor. This application was opposed by the applicant.

[7] Section 596 of the Act relevantly provides as follows:

596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

[8] I did not consider the matter sufficiently complex to warrant representation by a lawyer. While the matter raised a legal question, the law on the point was reasonably clear. Further, I was satisfied that it was not unfair not to allow the respondent to be represented as a comprehensive written submission had been filed and an employee of the respondent, capable of representing the respondent effectively, was in a position to present the argument. Clearly, it was not unfair not to permit the respondent legal representation in circumstances where the applicant was self-represented.

[9] Essentially, the applicant’s case was that he was suffering duress at the time he lodged the F50. According to the applicant, there were a number of factors that contributed to this duress including:

• His psychological condition which he claimed was caused by the employer and was exacerbated by matters connected with his workers’ compensation claims and for which he had sought treatment before, during and after the relevant period;



• The death, in January 2013, of a close family member;



• The inequality of the resources he possessed as a self-represented applicant pursuing the application against a large well-resourced Commonwealth Department supported by a global legal firm with well-qualified solicitors;



• His financial situation since losing his job and income which had caused mortgage stress and forced him to take in a lodger;



• The offer of a new job which required him to complete a number of on-line training modules prior to commencement;



• The work involved in pursuing his workers’ compensation claims;



• Intimidation which took place during the telephone conciliation process caused by the presence of a departmental employee whose conduct he had questioned, together with remarks made by the employer’s legal representative to the effect that his case was weak and that he ‘just wanted to have his day in court’.

[10] The applicant claimed that he had provided sufficient evidence for the Commission to be persuaded that he was subject to ‘duress’ when he lodged the F50 in March, and the F50 should therefore be set aside.

[11] The employer lodged a written submission and, in relying on the Full Bench decision in Chandra Gupta Narayan v MW Engineers Pty Ltd 1 (Narayan), asserted that there is no statutory power available to the Commission to set aside an F50 but that there may be general power to do so in cases of mistake or duress. It was noted that the applicant did not claim that the F50 was lodged in error.

[12] The employer also argued, on the basis of the decision in Fair Work Ombudsman v National Jet Systems Pty Ltd 2 (National Jet Systems), that the matters raised by the applicant did not amount to ‘duress’ such that there would be grounds for setting aside an F50.

[13] It was put that Buchanan J had reviewed the general law on duress in the context of considering the statutory framework established by the Workplace Relations Act 1996 and stated:

...an allegation of duress must be sustained by proof of two matters: conduct negating effective or real choice; and application of pressure by unlawful, unconscionable or illegitimate means. 3

[14] I am satisfied on the basis of the decision in Narayan that I have no power provided under the Act to grant the application before me. The Full Bench noted that there may be a power under the general law if the F50 was filed by mistake or under duress. The applicant does not claim that the F50 was filed in error.

[15] So far as the question of duress is concerned, I am satisfied that the position at general law is as stated by Buchanan J in National Jet Systems and set out in paragraph [13] above.

[16] The applicant’s claim of duress is essentially based on those grounds set out in paragraph [9] of this decision. Few of the grounds relate to conduct of the employer and, in my view, none concern the ‘application of pressure by unlawful, unconscionable or illegitimate means’.

[17] On the applicant’s own evidence, at the time he decided to discontinue his unfair dismissal application he continued to pursue his workers’ compensation claim and also managed to find and commence new employment. I accept that the applicant had pressing personal problems at the time he decided to discontinue his application but note that he was capable of making decisions and conducting his affairs. The personal, financial and psychological problems the applicant was experiencing will have played a role in his decision to discontinue the application, but I am unable to find that these problems amounted to pressure placed upon him by the employer by unlawful, unconscionable or illegitimate means.

[18] I do not accept the applicant’s claim that the inequality of resources as between the parties amounted to duress sufficient to force him to discontinue his application. This matter was also dealt with by Buchanan J in National Jet Systems as follows:

26 Unconscionable conduct involves more than just taking advantage of someone, or their inferior bargaining position. In ACCC v C G Berbatis Holdings Pty Ltd (2003) 214 CLR 51 (“Berbatis Holdings”), Gleeson CJ said (at [7]):

7… unconscionability is a legal term, not a colloquial expression. In everyday speech, “unconscionable” may be merely an emphatic method of expressing disapproval of someone’s behaviour, but its legal meaning is considerably more precise.

and (at [11]):

11 A person is not in a position of relevant disadvantage, constitutional, situational, or otherwise, simply because of inequality of bargaining power. Many, perhaps even most, contracts are made between parties of unequal bargaining power, and good conscience does not require parties to contractual negotiations to forfeit their advantages, or neglect their own interests.

27 Similarly, Gummow and Hayne JJ accepted (at [56]) that:

56 … a person in a greatly inferior bargaining position nevertheless may not lack capacity to make a judgment about that person’s own best interests.

28 In my view a similar rigour should be applied to the notion of what is illegitimate conduct. Conduct correctly described as illegitimate in this context must infringe a legal standard. The issue is not a moral one, nor one for personal value judgments. The test is necessarily objective.

29 In Westpac Banking Corporation v Cockerill (1998) 152 ALR 267 Kiefel J (at 288-290) discussed some aspects of the cases to which I have so far referred. Her Honour said (at 289) that it was established that “lawful pressure might operate as duress”. However, her Honour (at 289-290) emphasised:

The cases, apart from Crescendo Management, which recognise the possibility of “economic” duress, such as Barton v Armstrong and Pao On v Lau Yiu Long [1980] AC 614, emphasise the feature that the pressure applied is so coercive of the will that consent is treated as vitiated.

and went on to say (at 290):

Relief will not be granted…only on the basis of an inequality, even a great inequality, of bargaining position.

[19] Having taken into account all the evidence and the submissions of both parties, I find that the F50 was not filed under duress.

[20] As the F50 was not filed under duress or mistake there is no power to set it aside. The application is dismissed.

COMMISSIONER

Appearances:

Mr R. Kennedy, on his own behalf.

Ms T. Williams, for the respondent.

Hearing details:

2013.

Canberra:

August 8.

 1   [2013] FWCFB 2530.

 2 (2012) 218 IR 436.

 3   Ibid, [12].

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