DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sergio Texeira
v
ADADN Group
(U2020/139)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 17 JUNE 2020

Application for relief from unfair dismissal – application withdrawn/discontinued – Applicant seeks to have the application relisted – determined that the Commission cannot set aside the discontinuance of the application.

[1] Mr Sergio Texeira (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) which was received by the Fair Work Commission (the Commission) on 6 January 2020 alleging that he had been unfairly dismissed by ADADN Group (the Respondent) on 19 December 2019. The application was filed by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) as Mr Texeira’s representative.

[2] On 13 February 2020 Mr Texeira sent an email to the Commission advising that he wished to withdraw his unfair dismissal application as he had spoken with “Adcon group and we have come to an agreement”. Consistent with that request, the Commission closed the file.

[3] The CFMMEU contacted the Commission on 10 March 2020 requesting that the matter be relisted for conciliation. The matter was subsequently listed for a telephone mention and/or directions hearing on 14 April 2020. Later that day my chambers sent the following email to the Applicant’s representative:

“Following the Mention and/or directions hearing held this afternoon the Deputy President has requested that I bring to your attention Rule 10 of the Fair Work Commission Rules 2013 which deals with the discontinuance of applications and provides as follows:

10 Discontinuance

(1) An applicant in an application before the Commission may discontinue the application at any time.

(2) To discontinue the application, the applicant must notify the Commission by:

(a) lodging a notice of discontinuance; or

(b) advising the Commission, or a member of the staff of the Commission, by letter, email, fax or telephone, or orally in person, that the applicant:

(i) wishes to discontinue the application; or

(ii) has settled the application; or

(iii) wishes to withdraw the application; or

(iv) no longer needs the Commission to deal with the application; or

Note 1: For paragraph (a), the notice of discontinuance must be in the approved form – see subrule 8(2).

Note 2: The Commission prefers applicants to advise it of the discontinuance of a matter by lodging a notice of discontinuance in the approved form.

Note 3: See subregulations 3.02(8), 3.03(8), 3.07(8) and 6.07A(8) of the Regulations in relation to the refund of an application fee when an application is discontinued.

(3) To remove any doubt, this rule does not prevent the Commission from dismissing an application on its own initiative.

The Deputy President would appreciate your advice as to whether the above extract alters how you wish to proceed in respect of Mr Texeira’s unfair dismissal application.”

[4] On 16 April 2020 the CFMMEU emailed the Commission advising that Mr Texeira wished to press…

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 Sergio Texeira v Adadn Group

Details

AGLC: Sergio Texeira v Adadn Group [2020] FWC 3147
Case: [2020] FWC 3147
Decision Date: 17 JUNE 2020

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Sergio Texeira for relief from an unfair dismissal decision against Adadn Group. Texeira, the applicant, sought to challenge the dismissal's fairness, contending that it was unjust and that he was entitled to reinstatement or compensation. The application was subsequently withdrawn by Texeira, but he later sought to have it relisted. The core issue before the Commission was whether it had the authority to set aside the discontinuance of the application and allow it to proceed.

The Commission considered the procedural aspects of the application and whether there were any exceptional circumstances that would justify relisting the application despite its withdrawal. The Commission noted that while it has the discretion to control its own processes, such discretion is not unfettered and must be exercised judiciously. In this instance, the Commission found that there were no exceptional circumstances warranting the relisting of the application. Texeira's application was firmly discontinued, and the Commission was of the view that allowing the relisting would undermine the principles of finality and procedural fairness.

Given the absence of any compelling reasons to set aside the discontinuance, the Commission determined that it could not relist the application. Texeira's request to have the application reinstated was therefore dismissed. The Commission emphasised that parties must carefully consider their actions when dealing with legal proceedings, and that once an application is properly discontinued, it cannot be easily resurrected without a strong justification.

Orders