Tamara Trezise v Universal Music Australia Pty Limited T/A Universal Music Australia
[2011] FWA 4496
•15 JULY 2011
[2011] FWA 4496 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Tamara Trezise
v
Universal Music Australia Pty Limited T/A Universal Music Australia
(U2011/5554)
COMMISSIONER HARRISON | SYDNEY, 15 JULY 2011 |
Termination of employment - application to set aside a notice of discontinuance.
[1] The matter concerns an application to revoke or set aside a notice of discontinuance of a s.394 application for an unfair dismissal remedy, by Tamara Trezise (the Applicant). The application for relief arose out of the termination of her employment by Universal Music Australia (Universal).
[2] Universal opposed the application to set aside the notice of discontinuance. During the hearing of the application on 8 July 2011 I gave an ex tempore decision that I would order the revocation and setting aside of the notice. These are my reasons for decision.
Background
[3] (A) The Applicant’s employment was terminated by Universal on the grounds of serious misconduct.
(B) The Applicant lodged a s.394 application on 1 March 2011. A conciliation conference was listed for 25 March 2011.
(C) On 21 March 2011, Universal filed a Form F3 Employer’s Response to the Application. The response raised a jurisdictional objection on the ground that the Applicant’s annual rate of earnings exceeded the threshold under the Fair Work Act 2009 (the Act). Universal further objected to the application proceeding to conciliation prior to a determination of the jurisdictional issue.
(D) The matter was listed for Jurisdiction Conference/Hearing on 20 May 2011. In accordance with directions, both parties filed evidence and submissions they sought to rely upon. This listing was subsequently cancelled following the lodgement of a notice of discontinuance by the Applicant on 19 May 2011.
(E) On 23 May 2011, the Applicant filed and served an application to set aside the notice of discontinuance and attached submissions in support. Counsel for the Applicant and Universal both filed further submissions prior to the hearing on 8 July.
Applicant’s submissions
[4] The Applicant states she received correspondence from solicitors for Universal on 18 May acknowledging receipt of her submissions and inviting her to discontinue her application. The correspondence states: “If you fail to do so and Fair Work Australia finds that your earnings exceeded the high income threshold, we will seek instructions to apply for costs under section 611 of the Fair Work Act 2009 (Cth) on the basis that your application was made vexatiously or without reasonable cause.”
[5] On the same day she retained Counsel on a pro-bono basis. (Her original advocate informed her the matter was “out of his depth”). Counsel advised her on the evening of 18 May she had a strong case but was to change the opinion the following day, 19 May 2011, when he advised the Applicant to discontinue proceedings.
[6] The Applicant states she was not aware of the reasons for the change of advice and felt “put on the spot with such a short time frame to respond.”
[7] On the same day the Applicant received fresh advice from newly retained Counsel. They advised her that she had an arguable case and that the matter should not have been discontinued.
[8] On 20 May the Applicant states she became aware that “...there was an application process to revoke the Notice of Discontinuance and order the matter be reinstated. Consequently, I have drafted, filed and served the document on Monday 23 May 2011, as soon as was possible...”
Universal’s submissions
[9] Universal submits that the Tribunal should dismiss the application to set aside or revoke the notice of discontinuance filed on 19 May 2011 on the basis that the tribunal:
(a) does not possess power to revoke or set aside a notice of discontinuance;
(b) (in the alternative) should not be persuaded, in the circumstances relied upon by the Applicant, to exercise the power; and
(c) (in the further alternative) should not be persuaded, in light of the annual rate of earnings of the Applicant clearly exceeding the high income threshold contained in s.333 of the Act, to exercise the power.
[10] Universal accepts that under the provisions of the previous Workplace Relations Act 1996 the then Commission had power to revoke or set aside a notice of discontinuance under s.111(1)(q) to amend or correct an error, defect or irregularity in an application or document.
[11] In this matter it is submitted that making an order to revoke or set aside a notice of discontinuance does not constitute “amending” or “correcting” an error, defect or irregularity in a notice of discontinuance. It was stated there was no “error”, “defect” or “irregularity” in the Applicant’s notice of discontinuance.
[12] Counsel for Universal referred to a number of authorities which held that the power to revoke or set aside a notice of discontinuance had only been exercised in exceptional circumstances involving fraud, deceit, abuse of process or other misconduct. Other factors include whether an applicant had sufficient time to consider his or her position and whether they understood the purpose and intent of a notice of discontinuance. 1
[13] Universal also referred to Aguilar v Qantas 2 (Aguilar) where an applicant filed a notice of discontinuance in the light of being confronted with the strength of the respondent’s case against an applicant.
[14] It was submitted that in this matter:
“...there is no suggestion of fraud, deceit or other misconduct by the Respondent that led to the filing of the notice of discontinuance, the Applicant had a proper opportunity to consider her position (including to obtain legal advice and then act on that advice), the Applicant understood the purpose and effect of the notice of discontinuance and the Applicant authorised the filing of the notice of discontinuance in light of being confronted with the strength of the position of the Respondent on the annual rate of earnings exceeding the high income threshold.”
Reasons
[15] At the hearing of the application to revoke and set aside the notice of discontinuance on 8 July 2011 I informed the parties that I had considered the written submissions referred to above and indicated I was in a position to give an ex tempore decision.
[16] In Aguilar Senior Deputy President Harrison dealt with an application to withdraw a notice of discontinuance. In that case the respondent conceded that the AIRC had power to permit the withdrawal of a notice of discontinuance under s.111(1)(q) of the Workplace Relations Act 1996 (WR Act) - a power “to correct or amend any error, defect or irregularity” and s.111(1)(t) of the WR Act - a power “to generally give all such directions and do all such things as are necessary and expedient for the speedy and just hearing of a matter”. Her Honour was prepared to assume that s.586 of the Act is a source of power to set aside a notice of discontinuance but declined to exercise that power on discretionary grounds. Section 586(a) of the Act is in relevantly identical terms to s.111(1)(q) of the WR Act considered in Aguilar and is a source of power for FWA to permit an applicant to withdraw a notice of discontinuance in an appropriate case. Further, in my view, the procedural power in s.589(1) of the Act (“FWA may make decisions as to how, when and where a matter is to be dealt with”) should, consistent with its statutory purpose, be construed broadly and also provides a source of power, similar to s.111(1)(t) of the WR Act, for FWA to permit an applicant to withdraw a notice of discontinuance in an appropriate case.
[17] Regrettably, the Applicant received conflicting legal advice within less than a 24 hour period. She was urged to act quickly under a belief that she would be liable for costs. In such circumstances I am of the opinion she acted under duress. The Applicant did not have the opportunity to properly consider her position and felt pressured to act in reliance on the advice.
[18] There is no evidence that Universal suffered any prejudice a result of the very short delay between the filing of the notice of discontinuance and the filing of her application for permission to set aside the notice of discontinuance.
[19] I am not persuaded on the material advanced by Universal, at least at this stage, that the application is precluded by virtue of the Applicant’s annual rate of earnings above the statutory cap referred to in s.382(b)(iii). It is not possible to conclude that the merits of the matter are a factor that should weigh against an exercise of discretion in the Applicant’s favour.
[20] Other matters referred to in s.394(3) would not have weighed against the Applicant.
[21] The power under s.586 and/or s.589(1) is a discretionary one and in the circumstances of this matter I am satisfied I should exercise my discretion in favour of the Applicant. In so doing it provides a fair go all round.
COMMISSIONER
Appearances:
P Lott of Counsel with T Trezise for the Applicant
A Gotting of Counsel with S Lawrence, Gilbert and Tobin Lawyers for Universal Music Australia Pty Limited
Hearing details:
2011.
Sydney:
July 8.
1 Hammond v Australian and New Zealand Banking Group Limited,[2011] FWA 1650 at [17] per Roe C, Kontogouris v Tradeflex Services Group Pty Ltd, unreported, PR902620 at [14] per Watson SDP and Gray v Smorgon Steel Services Group Pty Limited, unreported, PR917165 at [29] per Eames C.
2 Aguilar v Qantas Airways Limited, [2010] FWA 5669 at [3] per Harrison SDP.
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