Stacey Ann Merolla v Mainstreet International Marketing Group Pty Ltd
[2010] FWA 7929
•13 OCTOBER 2010
[2010] FWA 7929 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Stacey Ann Merolla
v
Mainstreet International Marketing Group Pty Ltd
(U2010/665)
COMMISSIONER SIMPSON | BRISBANE, 13 OCTOBER 2010 |
Unfair dismissal -application to set aside Notice of Discontinuance.
[1] On the 27 September 2010 I conducted a hearing into an application by Ms Stacey Ann Merolla (“the Applicant”) to set aside a notice of discontinuance filed by Mr Amnon Kelemen of Mint HR Solutions on her behalf on 16 August 2010.
[2] Mainstreet International Marketing Group Pty Ltd (“the Respondent”) has not sought to argue that a settlement was reached between the parties. The Respondent has however sought to argue that the Notice of Discontinuance should not be set aside.
[3] The Applicant gave clear evidence that she did not authorise her representative at the time to file the notice of discontinuance. She said the following; 1
... “---Well, the last verbal communication I had with Mr Amnon before the case was before the case, Friday, and that was regarding settlement. He said he had to get back to the defendants and he would call me that afternoon. I told him if he didn’t get back to me by 5.30 I would assume we’re going to court. He said he would phone me over the weekend. Saturday I had no phone call from him, Sunday around lunch time I was getting curious if he would phone me and my phone was not connected at that time, so I actually used an online system to send him an SMS asking him where and what time to meet on Monday morning. He didn’t reply until around 6.48 and his reply was, “No, not going to court, will call you tomorrow to discuss.” I sent him another SMS using this online system asking him if there was anything I could do just in case I had to go to court. I honestly thought at that stage he only maybe requested a delay for another time, I didn’t realise at all he was putting in an application to discontinue. He replied back at 6.55 on Sunday night, “No, just don’t go to court tomorrow.” So it wasn’t until the morning of the hearing that I received a call, I’m guessing it was of (indistinct) or Jenny, asking me where I was and at that stage I was really put out of place I guess. I honestly had no idea the hearing was still on, I thought it just wasn’t on. I said that I’m prepared to represent myself over the phone and even in the transcript of that hearing I actually said I would be there myself, even if I had to represent myself. I phoned Mr Amnon after the hearing, it was really hard to get hold of him, and he was ignoring my calls. I finally got through to him and he said that he put in a form for discontinuance. I had no idea what that even was. I asked him, “What does that mean?” He said that he’s just putting in discontinuance, it wasn’t worth the plane ticket to come up here and that he was filing with the Ombudsman. And I asked, “What does that mean, I have no idea what that means?” He said, well, he told me basically (indistinct) I will get my figures and the other side can get a fine and I said, “That’s not what I agreed upon, I don’t know what you’re talking about and that’s not what I agreed to.” He said, “It wasn’t my decision.” And he hung up on me. So I sent him an email - would you like me to read the email to you that I sent him?
Yes, please?---”Amnon, you do not return my calls, you do not reply to my emails and you have hung up on me intentionally, more importantly you have not supplied any documents relevant to my case. The fact that you claim it’s not worth your time to be here is not my problem, it is yours. You decided to take the case and it was your responsibility. You have made a major decision without my permission or consent to lodge a discontinuance of my case in the Fair Work Tribunal and instead lodge it with the Fair Work Ombudsman. You said it would be the same outcome, although I have an employment contract which you are aware of stating I had four weeks’ notice period and the Ombudsman will only provide a maximum of two weeks. The Fair Work Ombudsman advised me that the contract issue should in fact be heard by a Tribunal. This ultimately affects the outcome of my case. As a result I hereby terminate you, your role as my representative in this matter.”
[4] At the conclusion of the hearing I invited the parties to file any further relevant material by close of business Monday 4 October 2010.
[5] The Applicant provided copies of text messages exchanged between herself and Mr Kelemen and also a document titled ‘Terms of Engagement’ which I understand to be the basis upon which Mr Kelemen was engaged as the Applicant’s representative.
[6] This document does not include any authorisation provided by the Applicant to Mr Kelemen, acting as her appointed representative to discontinue the application on her behalf. Had such an authorisation been given as part of the terms of the engagement then the circumstances may be different.
[7] The Respondent filed material to support its contention that the notice of discontinuance should not be set aside. The respondent made reference to the definition of a ‘paid agent’ contained within s.12 of the Fair Work Act 2009 and also s.596 of the Act and other sections that provide for parties to appoint a representative to act on their behalf.
[8] It is apparent from the material provided by the Respondent, particularly an email from Mr Hannon to Mr Kelemen 2 that the Respondent was concerned that the Applicant’s representative was not conducting himself in a professional manner. The Respondent alleged that the Applicant’s representative used inappropriate language and hung up on the Respondent. The Respondent also raised this concern during the hearing.3
[9] There was no material produced by the Respondent to disclose that a settlement had been reached between the parties, or any strong evidence that the Applicant had authorised their representative at the time to discontinue the application.
[10] On the basis of the oral evidence provided by the Applicant and the evidence being offered of written agreement between the Applicant and her representative at the time which did not provide him the authority to discontinue the matter on her behalf, I find the application to discontinue filed by Mr Kelemen on 16 August 2010 a nullity in light of it having been filed without the authority of the applicant.
[11] The Notice of Discontinuance is set aside. I will issue directions for a hearing of the application in the near future.
COMMISSIONER
1 Transcript of Proceedings 27 September 2010 PN 41 and 42
2 Exhibit 10 in the material provided
3 Transcript of Proceedings 27 September 2010 PN 90 and 91
Printed by authority of the Commonwealth Government Printer
<Price code A, PR502685>
2
0
0