Sergio Texeira v Adadn Group
[2020] FWC 3147
•17 JUNE 2020
| [2020] FWC 3147 |
| FAIR WORK COMMISSION |
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Application for relief from unfair dismissal – application withdrawn/discontinued – Applicant seeks to have the application relisted – determined that the Commission cannot set aside the discontinuance of the application.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
(c) advising the Commission of the discontinuance during the course of a conference or hearing.
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 his application. The email read as follows:
“We wish to proceed with the claim as set out. The email that Mr Texeira sent on 13th February was:
a) Withdrawal conditional on an agreement reached with the Respondent, and that condition was not met;
b) An unsophisticated applicant acting without legal advice in circumstances where he did not understand the import of “withdrawing” a claim;
c) An outcome procured by the Respondent’s unconscionable and misleading behaviour.
For these reasons, we say it should not be taken as meeting the criteria in rule 10. We intend to put on evidence to this effect.”
[5] In a further email later that day the CFMMEU advised the Commission that it had also taken the additional step of filing a new application regarding the same matters and that it sought an extension of time in respect of that application (given that it had been made outside the 21 day statutory timeframe). The CFMMEU also requested that the applications be dealt with together and sought leave to make submissions on the applications concurrently.
[6] Directions were subsequently issued on 20 April 2020, with those Directions setting out a timetable for the provision of submissions and evidentiary material as to whether Mr Texeira discontinued his application by virtue of his email to the Commission of 13 February 2020 and whether he was unfairly dismissed.
[7] Those issues were heard by telephone on 11 June 2020. At the hearing, Mr Tom Fischer, a Legal Officer with the CFMMEU’s ACT Branch, appeared for Mr Texeira. The Respondent did not attend the hearing despite numerous attempts by the Commission to contact it. Indeed, the Respondent failed to file any material whatsoever in this matter, including a Form F3 – Employer Response to Unfair Dismissal Application.
[8] Evidence for the Applicant was given by Mr Texeira, Mr Heath Boa and Mr Sean Hooper. Messrs Boa and Hooper were not required to give oral evidence.
[9] For the reasons outlined below, I have concluded that there is no basis on which the Commission can reopen Mr Texeira’s unfair dismissal application.
The Applicant’s case
[10] Mr Texeira acknowledged in his submissions that it was a well‐established principle that the Commission does not have a general power to set aside a Notice of Discontinuance, referring to the decision in Chandra Gupta Narayan v MW Engineers Pty Ltd (Narayan) 1. In his submissions, Mr Texeira also referred to the decisions in Sanza Lockwood v HWG Cuthill, MG Quinn, MJ Verbeeten and MJ Will Trustee for Wilhelm Trust T/A Kings Meadow Capital Chemist (Lockwood) 2 and AB v Tabcorp Holdings Limited (AB) 3.
[11] Specifically, Mr Texeira contended inter alia that the circumstances in this case clearly fitted within the guidelines set out in Lockwood in that it involved either an instance of mutual mistake, where the Applicant believed there was a settlement between the parties and the Respondent believed that the Applicant was unconditionally withdrawing the matter absent a settlement, or an instance of unilateral mistake, where the Applicant believed there was a settlement between the parties and the Respondent knew that there was no such settlement. Mr Texeira further contended that it was clear that no genuine agreement existed between the parties and that his email of 13 February 2020 made it clear that the withdrawal of his application was conditional on a settlement. This Mr Texeira submitted was an error within the power of the Commission to correct. Beyond that, Mr Texeira submitted that the Full Bench decision in AB was strictly obiter and not authority for the proposition that the Commission could not act in the manner which he advocated in this case.
[12] At the hearing Mr Texeira largely reiterated key aspects of his written submissions, positing among other things that the decision to withdraw his unfair dismissal application was made in error and that it was an error within the powers of the Commission to remedy. Drawing on the decision in Lockwood, Mr Texeira described the circumstances leading to him withdrawing his application as involving a case of unilateral mistake, adding that based on the evidence there was no agreement reached with the Respondent/Mr Ernest Kain (at that time a senior manager with the Respondent). Mr Texeira further submitted that irrespective of whether the Respondent knew this or whether it acted purposefully or negligently, the circumstances in this case still involved a category of mistake even if there was active fraud or deception by the Respondent.
[13] In his affidavit 4 Mr Texeira deposed among other things that on 13 February 2020 in a telephone conversation with Mr Kain (Mr Kain has since left the Respondent) he indicated that all he wanted was for the separation certificate issued to him by the Respondent to state that he had been dismissed so that he could make a claim against the Building Employees Redundancy Trust (BERT).The separation certificate issued to Mr Texeira by the Respondent in early January 2020 stated that he had resigned from his employment. Mr Texeira further deposed that:
• he said to Mr Kain on 13 February 2020 that if the Respondent were to issue an amended separation certificate stating that he had been dismissed he would withdraw his unfair dismissal application;
• Mr Kain said the Respondent would do so as it did not want to go through the process in the Commission, adding that Mr Kain instructed him to withdraw his application;
• at the time he believed that he and Mr Kain had reached an agreement on the matter;
• he immediately wrote to the Commission withdrawing his application;
• the Respondent did not subsequently issue an amended separation certificate, adding that he called Mr Kain on number of occasions to ask for the certificate but that he stopped answering his calls;
• on 24 February 2020 he contacted the CFMMEU to again seek its assistance, with the CFMMEU writing to Mr Kain later that day; and
• on 3 March 2020 he instructed the CFMMEU to seek to have his application relisted.
[14] Mr Texeira was required to give oral evidence at the telephone hearing. In response to a question from the Commission, Mr Texeira stated that Mr Kain had lied to him regarding the provision of an amended separation certificate and failed to uphold his end of the bargain in terms of providing an amended separation certificate.
[15] Messrs Boa’s and Hooper’s respective affidavits 5 did not go to Mr Texeira’s withdrawal of his unfair dismissal application but rather dealt with issues going to the substantive merits of his application. Messrs Boa’s and Hooper’s evidence is therefore not relevant to this decision.
Consideration of the issues
[16] As noted above, Mr Texeira in his submissions referred to the decisions in Narayan, Lockwood and AB. I explore those decisions prior to considering Mr Texeira’s request that his unfair dismissal application be relisted.
[17] The Full Bench in Narayan considered the issue of whether s.586 of the Act provides the Commission with the power to grant an application to set aside a notice of discontinuance. The circumstances in Narayan were that Mr Narayan sought to appeal a decision refusing his application to revoke the notice of discontinuance he had filed in respect of his unfair dismissal application. Specifically, the Full Bench concluded as follows:
“[14] For the reasons given we have concluded that s.586 does not empower the Commission to determine an application to set aside a notice of discontinuance. For completeness we note that the Commission may have power to deal with such an application if the notice of discontinuance was filed by mistake or under duress. In such circumstances, the general law may operate to render the notice a nullity. But that is not this case.” 6
[18] In Lockwood Commissioner Gregory considered an application to set aside a notice of discontinuance. The Commissioner’s decision included the following:
“[17] The following conclusions appear to follow from the decision of the Full Bench in Narayan:
1. Once finalised a Notice of Discontinuance is self-executing and brings the proceedings to an end.
2. Neither s.586 or s.578(b) of the Act empower the Commission to determine an application to set aside a Notice of Discontinuance.
3. However, the Commission may have a general law power to treat a Notice of Discontinuance as having no effect where the notice was filed by mistake or under duress.
[18] I now turn to consider the circumstances in the present matter in the context of the findings of the Full Bench in Narayan. There is no suggestion of duress in the present matter. Therefore the only basis on which the present application might succeed is if it can be established the Notice of Discontinuance was filed by mistake. Neither party made submissions on this point. However, it is understood the law on mistake is typically concerned with whether genuine agreement exists in regard to the making of a contract or agreement between two parties. It is also noted that the courts are generally reluctant to grant relief to a party on grounds of mistake, but will do so in certain cases to provide relief to a mistaken party.
[19] Three broad instances of mistake can be identified. Firstly, a common mistake where each party makes the same mistake, for example, entering into a contract for the sale of goods when those goods, unbeknown to either party, no longer exist. Secondly, instances of mutual mistake where the parties are mistaken about each other’s intentions and at cross purposes. For example, one party believes it is purchasing block A, while the other party believes it is selling block B. If it can be established, based on an objective test, that there is a lack of agreement as a result of this mistake then the contract can be set aside. The third category is unilateral mistake when the one party is mistaken and the other party knows or ought to be aware of that mistake.
[20] In the matter of Mr Graeme Frew v Makin Residential Commissioner Jones considered an application to set aside a Notice of Discontinuance filed on behalf of the Applicant by his representative. That decision was handed down prior to the Full Bench decision in Narayan. However, Commissioner Jones indicated in the decision that evidence of mistake, among other matters, “are clearly relevant considerations” in coming to a decision in the matter before her. However, she found the Applicant had, after appropriate consultation with his legal representative, “Instructed his representative to file a Notice of Discontinuance on his behalf”. She concluded:
“In the circumstances, I have decided to refuse to set aside the Notice of Discontinuance. An Order dismissing the application will be issued today.”
[21] The circumstances are clearly different in the present matter. The basis of a settlement of Ms Lockwood’s original s.365 application was reached at the conclusion of the conference in November last year. However, finalisation of the settlement was contingent on the terms of a Deed of Release being agreed to and signed by both parties. Ms Lockwood submits that following the conclusion of the conference she was not prepared to sign the draft of the deed of release prepared by her legal representative, and sought changes to deal with her concerns.
[22] However, in the meantime her representative forwarded an unsigned copy of the deed to Kings Meadows Chemist which was signed and returned forthwith. On 4 December he also filed a Notice of Discontinuance with the Commission indicating the matter had been wholly discontinued. Ms Lockwood only discovered this when she subsequently contacted the Commission.
[23] I am satisfied in all the circumstances Ms Lockwood’s representative should not have filed the Notice of Discontinuance when he did, and acted without his client’s specific instructions in doing so. He appears to have acted on the assumption Ms Lockwood would accept the proposed terms of settlement and would sign the deed of settlement. This assumption is understandable, up to a point, given Kings Meadows Chemist had already signed the deed and forwarded the agreed documents and a cheque to him in accordance with their “part of the bargain.” However, I am also satisfied it was a mistake on his part to forward the Notice of Discontinuance to the Commission prior to his client agreeing to the terms of the deed.
[24] I am also satisfied this is not a case of Ms Lockwood agreeing to a settlement outcome, but then having “second thoughts” and seeking to extricate herself from that arrangement, as was the case in the matter before Commissioner Jones. Ms Lockwood has been concerned throughout that the proposed resolution of this matter should not impact on a workers’ compensation claim she is also pursuing. It is not necessarily clear as to why she actually believes she is unable to agree to the proposed terms of the deed in that context. However, I am satisfied the execution of an agreed deed of release was an important part of concluding the settlement from her standpoint, and her representative was mistaken in filing the Notice before this occurred.
[25] I also acknowledge the submissions of Kings Meadows Chemist that they should not be disadvantaged by an issue that has arisen between Ms Lockwood and her legal representative. I understand their concerns and have a significant degree of sympathy for their position. They have acted throughout in good faith and have not wavered from their position of support for the proposed terms of settlement. They have already complied with what it intended to require of them, including signing the proposed deed of release.
[26] It is also acknowledged that it is undoubtedly an unusual step for the Commission to set aside a Notice of Discontinuance. This has been emphasised in a number of previous decisions of the Tribunal, including the decision of SDP Watson in Kontogouris v Tradeflex Services Group Pty Ltd. However, the SDP indicated in that decision he was prepared to take this step in circumstances where the Applicant executed a Notice of Discontinuance in error, in circumstances where he did not intend to discontinue the application at the time.
[27] Similarly, in the present matter I am satisfied Ms Lockwood did not intend to discontinue her application at the time her legal representative purportedly filed the Notice of Discontinuance on her behalf. The execution of a signed deed by both parties on agreed terms was an integral part of concluding the settlement. Without the deed being signed by both parties the Notice should not have been filed. The circumstances can be described as involving a situation of mutual mistake where Ms Lockwood and her legal representative were mistaken as to each other’s intentions at the time. I am also satisfied there is no evidence before the Commission indicating Ms Lockwood contributed to that mistake being made. She may also suffer some detriment in the future by being denied the opportunity of continuing to have the option of pursuing her s.365 application if the Notice is not set aside.
[28] I am accordingly satisfied the Notice of Discontinuance was filed by mistake and in all the circumstances it is appropriate for the Commission to act and determine it be treated as having no effect. An order to that effect will be issued in conjunction with this decision.” 7 (Endnotes not included)
[19] Finally, the Full Bench in AB observed as follows:
“[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.” 8 (Underlining added)
[20] In this case Mr Texeira contended that the Commission should adopt the approach taken by Commissioner Gregory in Lockwood, describing the Full Bench’s comments in AB as obiter. However, I note that the decision in Lockwood predates the Full Bench decision in AB. Although the Commission is not, as a non-judicial body, bound by principles of stare decisis, as a matter of policy and sound administration it has generally followed previous Full Bench decisions relating to the issue to be determined, in the absence of cogent reasons for not doing so. 9 Based on the material before the Commission in this case there are no cogent reasons for departing from the view expressed by the Full Bench in AB, i.e. I agree with and adopt the view expressed by the Full Bench in AB. Even if there were, I am not satisfied that Mr Texeira’s decision to withdraw his unfair dismissal application was a unilateral mistake as described in Lockwood and as he contended. Mr Texeira’s evidence does not support such a conclusion. More specifically, Mr Texeira’s evidence was that on 13 February 2020 he believed that he and Mr Kain had reached an agreement on the matter. Further, as Mr Texeira stated in his oral evidence, Mr Kain lied to him regarding the provision of an amended separation certificate and failed to uphold his end of the bargain in terms of providing an amended separation certificate. This in my view does not equate to Mr Texeira being mistaken in what was agreed with Mr Kain. Further, there is no probative evidence before the Commission to suggest that the Respondent considered Mr Texeira’s understanding to be a mistake. Against that background, there is simply no basis for the Commission to reopen Mr Texeira’s unfair dismissal application even if it was empowered to set aside the withdrawal of his unfair dismissal application. The Commission is not empowered to do so for the reasons set out in AB.
Conclusion
[21] For all the above reasons, there is no basis on which the Commission can reopen Mr Texeira’s unfair dismissal application.
[22] I note that Mr Texeira has filed another unfair dismissal application (U2020/4922) in respect of the cessation of his employment with the Respondent. Mr Texeira has seven days from the date of this decision to advise the Commission to advise whether he wishes to press that application given that he may in the alternative initiate court action to have his withdrawal of his initial unfair dismissal application declared a nullity. If so, that matter will be listed for conciliation in the first instance and/or a mention and/or directions hearing to set a timetable for dealing with the extension of time issue given that his application was filed outside the 21 day timeframe specified in the Act.
Appearances:
T. Fischer for the Applicant.
No appearance by the Respondent.
Telephone Hearing details:
2020.
Canberra.
June 11.
Printed by authority of the Commonwealth Government Printer
<PR720237>
1 [2013] FWCFB 2530
2 [2014] FWC 2950
3 [2015] FWCFB 523
4 Exhibit 3
5 Exhibits 1 and 2
6 [2013] FWCFB 2530 at [14]
7 [2014] FWC 2950 at [17]-[28]
8 [2015] FWCFB 523 at [11]-[12]
9 Cetin v Ripon Pty Ltd (t/a Parkview Hotel) (2003) 127 IR 205 at [48]
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