Shane Axelby v Woolworths Limited T/A Masters Home Improvements Upper Coomera

[2016] FWC 5862

[2016] FWC 5862

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shane Axelby
v
Woolworths Limited T/A Masters Home Improvements Upper Coomera
(U2016/2706)

COMMISSIONER WILSON MELBOURNE, 22 AUGUST 2016

Application for relief from unfair dismissal.

[1] On 7 June 2016, Mr Shane Axelby filed an application alleging the termination of his employment by Woolworths Limited was unfair.

[2] The matter was the subject of conciliation on 29 June 2016 where a settlement was reached and terms of settlement were sent to parties for execution.

[3] On 4 July 2016, Mr Axelby emailed the Commission to advise that he did not wish to go ahead with settlement of the matter and elected to proceed to arbitration of the matter:

I have considered my possibilities and unfortunately I am not willing to give up my freedom of speech. Could you please let the other parties no.

[4] On 4 July 2106, the Commission Conciliator emailed Mr Axelby as follows:

I have received the email from Shane below regarding withdrawing from the Agreement with the Respondent during the Cooling Off Period.  Could you please confirm whether this means that you are a) discontinuing without a settlement or b) wanting this matter to be listed to continue on to Arbitration?

I’m sorry that the settlement agreed at the time didn’t work for you Shane and I wish you all the best for the future whatever you wish me to do.

[5] On 6 July 2016, the Commission received email correspondence from Woolworths Limited as follows:

Thank you for your email informing us of Shane's decision to rescind his agreement to settle. We too are disappointed that a mutual settlement was unable to be finalised as agreed.

Since the matter was settled in principle during conciliation and therefore negated the need for any further negotiation on behalf of the Respondent, I respectfully propose that the parties are afforded a further opportunity to settle the matter via a secondary conciliation.

The Respondent, in the best interests of resolving the matter on a commercial basis and reaching a mutually favourable outcome kindly asks you and the Applicant to consider this request. 

[6] On 8 July 2016, the Commission received, by way of e-filing, a Notice of Discontinuance from Mr Axelby’s representative.

[7] On 15 July 2016, the Commission received an email from Mr Axelby’s representative as follows:

Hi Jacqueline

Thanks for that. It is true that we would not be acting for Shane going to arbitration. 
There may have been a F50 filed but I also understand that it was Shane's intention to proceed further. Is the arbitration still proceeding? (I am currently off work and do not recall whether I lodged a discontinuance.) 

[8] On 21 July 2016, Mr Axelby emailed the Commission as follows:

Yes I would like to see this through thanks Ben.

[9] On 26 July 2016, the Commission emailed Mr Axelby and attention was drawn to the decision of the Full Bench in AB v Tabcorp Holding Limited¹ in which the Full Bench formed the view that it did not have the power to set aside a notice of discontinuance and that any such application would need to be made to the Court:

Dear Mr Axelby,

Your email has been provided to Deputy President Gooley. A notice of discontinuance was filed in your matter U2016/2706 on 8 July 2016.  She notes your email of 21 July 2016 that you wish to proceed with your matter.

In AB v Tabcorp Holdings Limited[2015] FWCFB 523 a Full Bench held as follows in relation to setting aside a notice of discontinuance and that any such application would have to be made to a court:

[10]       We note that the Deputy President's decision is predicated on the assumption that the Commission has the power to set aside a notice of discontinuation if the notice was filed by mistake or under duress. In that regard the Deputy President relied on an obiter comment in Narayan to that effect. However the ratio in Narayan is set out at paragraph 6 of that decision,:

"... s.586 provides a power to correct or amend an application, or to waive an irregularity in the form or manner in which an application is made. It is not a power to revoke or set aside an application. Once filed a notice of discontinuance is self executing and it brings the application to an end." (footnotes omitted)

[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.

Please advise by noon on Friday 25 July 2016 if, in light of the Full Bench decision, 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 Friday 5 August 2016 any evidence and submissions in support of your application. You are directed to address, in particular, why the Deputy President should not, of her own motion, dismiss your application under s.587(1)(c).

[10] To date, Mr Axelby has not contacted the Commission or provided any submissions.

[11] Mr Axelby was advised a Full Bench of the Commission has determined that the Commission does not have the power to set aside a notice of discontinuance. Mr Axelby can apply to a court to have his notice of discontinuance set aside or he can file a new application, albeit he would require an extension of time before such an application could be considered.

[12] The decision of the Full Bench in AB v Tabcorp Holding Limited is clear and I am bound to follow it. Therefore, Mr Axelby’s application to set aside the notice of discontinuance is dismissed.

COMMISSIONER

1 [2015] FWCFB 523.

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