Samuel Howell v Elite Elevators Corporation Pty Ltd - [2023] FWCFB 265

[2023] FWCFB 265

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Samuel Howell
v

Elite Elevators Corporation Pty Ltd

(C2023/5486)

JUSTICE HATCHER, PRESIDENT

DEPUTY PRESIDENT WRIGHT

COMMISSIONER CRAWFORD

SYDNEY, 22 DECEMBER 2023

Application to deal with general protections contraventions involving dismissal – conciliation conference conducted – settlement reached – notice of discontinuance filed by applicant’s representative – dispute regarding whether applicant instructed or authorised filing of notice of discontinuance – discontinuance held to be invalid – further conference to be conducted.

Introduction and background

This decision concerns the validity of a purported notice of discontinuance that was filed in this matter on 17 November 2023. Because this issue was considered to be of legal importance and general application, it was referred by the President of the Commission to this Full Bench for determination on 20 December 2023. The issue has arisen from the following factual circumstances.

On 7 September 2023, Mr Samuel Howell made an application under s 365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with his dispute with Elite Elevators Corporation Pty Ltd (respondent) concerning Mr Howell’s dismissal on 31 August 2023. Mr Howell alleges that his dismissal by the respondent contravened the general protections provisions in Part 3-1 of the FW Act. The application was filed by ‘Employee Dismissals’, which identified itself in its covering email as Mr Howell’s paid agent, and the application was signed by Ms Belinda Solomon as ‘Paid Agent for and on behalf of Employee Dismissals’.[1]

On 17 September 2023, the Commission served Mr Howell’s application on the respondent and, on 3 October 2023, the respondent filed its response (Form F8A) to Mr Howell’s application.

On 5 October 2023, Mr Howell’s application was listed for conference by video link using Microsoft Teams before Commissioner Allison, to take place on 19 October 2023. At the conference on that date, Ms Pareshni Pillay of Employee Dismissals appeared for Mr Howell. Mr Howell was also present. The respondent was legally represented. During the conference, Mr Howell and the respondent reached a settlement. Whilst the conference itself was not recorded, the Commissioner went ‘on record’ at the conclusion of the conference and read out the agreed terms of settlement. The Commissioner’s chambers emailed the parties the agreed terms of settlement in writing (as a PDF attachment) for signature shortly thereafter.

On 20 October 2023, Mr Howell sent an email to the Commissioner’s chambers inquiring how he was to sign the document. The email attached a copy of the terms of settlement which had in fact already been signed by Mr Howell, but the signature was not witnessed nor had Mr Howell filled in his name as the document required. On 23 October 2023, the Commissioner’s chambers sent a reply email to Mr Howell noting that he had already signed the document but that his signature had not been witnessed nor his name filled in.

On 13 November 2023, Mr Howell sent an email to the Commissioner’s chambers which…

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.

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Details

Case: [2023] FWCFB 265
Decision Date: 22 DECEMBER 2023

CaseChat Overview and Summary

Samuel Howell applied to the Fair Work Commission (FWC) under s 365 of the Fair Work Act 2009 (Cth) for the Commission to deal with his dismissal by Elite Elevators Corporation Pty Ltd. After a conciliation conference, the parties reached a settlement. On 17 November 2023, a purported notice of discontinuance was filed by Employee Dismissals, who had acted as Mr Howell’s paid agent in his application. The respondent had already paid the settlement sum into Employee Dismissals’ bank account on 20 October 2023. Mr Howell was dissatisfied with the outcome of his matter and filed a complaint with the Commission. The Commission referred the matter to a Full Bench to determine the validity of the notice of discontinuance. The Full Bench found that the notice of discontinuance was invalid and a nullity. The Full Bench found that the notice of discontinuance was not valid because Mr Howell did not instruct or authorise Employee Dismissals to file it. The Full Bench found that Employee Dismissals had not provided appropriate advice to Mr Howell about the nature and effect of a notice of discontinuance. The Full Bench found that clause 9 of the terms of settlement, on which Employee Dismissals relied, did not authorise the filing of a notice of discontinuance. The Full Bench acceded to Mr Howell’s request for a further conciliation conference to be conducted by the Commission. The Full Bench found that a further conference may assist in resolving the matters that remain between Mr Howell and the respondent. The Full Bench found that the respondent’s attendance at the hearing before the President on 14 December 2023 was likely to have caused it to incur legal costs. The Full Bench drew attention to the fact that s 377 requires any such costs application to be filed within 14 days after the Commission finishes dealing with the dispute.

Orders