Tan Le v RBA Architects and Conservation Consultants Pty Ltd

[2017] FWC 5379

[2017] FWC 5379

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tan Le
v
RBA Architects and Conservation Consultants Pty Ltd
(U2017/6851)

DEPUTY PRESIDENT CLANCY MELBOURNE, 17 OCTOBER 2017

Application for an unfair dismissal remedy.

Background

[1] On 27 June 2017, Mr Tan Le made an application (the Application) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Le was notified of his dismissal by RBA Architects and Conservation Consultants Pty Ltd (RBA Architects) on 9 June 2017.

[2] The matter was the subject of conciliation on 27 July 2017, however it did not resolve. Consequently, directions for the filing of material were issued and the matter was listed for Jurisdiction and Arbitration Conference/Hearing on 25 September 2017.

[3] The matter was allocated to Commissioner Cirkovic on 11 September 2017 and the Commissioner listed the matter for a pre-hearing Mention and/or conference at 10:00am on 14 September 2017. This was subsequently rescheduled and eventually took place at 3:00pm on 20 September 2017. Following this, the electronic Commission file for this matter recorded a file note from the Commissioner’s chambers at 5:56pm on 20 September 2017 which stated:

“Following conference before Commissioner Cirkovic, the parties reached a settlement agreement. The Commissioner accepted a verbal discontinuance from the Applicant over the telephone under rule 10 of the Fair Work Commission Rules 2013.”

[4] At 5:47pm on 20 September 2017, a cancellation Notice of Listing was sent to the parties from the Commissioner’s chambers notifying them that the hearing listed for 25 September 2017 was cancelled, and further advising that:

“The Applicant discontinued their application over the telephone at the telephone conference before Commissioner Cirkovic on 20 September 2017.

The Commissioner has accepted this as a verbal discontinuance under rule 10 of the Fair Work Commission Rules 2013 (Cth).”

[5] There was no communication from either party in response to this notification until 4 October 2017, when Mr Le contacted the Commissioner’s chambers, via email, advising:

“Following my discussions with Commissioner Cirkovic, the respondent has sought to introduce new terms to the settlement agreement, not talked about or agreed on during the telephone conference. To enable a settlement, I tried negotiating changes to the new terms that would be fair to all parties. The respondent refused to incorporate my key amendments. Please refer to attached deeds and email chain below.

Of significance is the addition of an expansive release clause which favours the respondent. My concerns are that release was never discussed during the telephone conference, and the clause unilaterally discharges individuals who are not parties of the agreement, specifically: committee members, agents, officers and employees of the business. This would allow these individuals to make disparaging statements without impunity.

Additionally, the non-disparagement clause does not provide for action against breaches. As a result, the release clause would render the non-disparagement clause meaningless. Without genuine protection against further statements that would affect my reputation and employment opportunities, the changed agreement - submitted essentially as a counter offer by the respondent - is unacceptable. 

In consideration of the above, I would like to proceed to determination by hearing.”

[6] Mr Le followed up on this email on 6 October 2017 and then sent an email to the Commissioner’s chambers on 9 October 2017, stating:

“After not hearing from you regarding my emails sent 4 and 6 October 2017, I looked over past correspondence issued. During my review of the Notice of Listing issued 20 September, I picked up significant errors. In particular, despite no communications from me regarding discontinuance, whether during the telephone conference or any other time, the Notice states that I verbally discontinued my application when I spoke to Commissioner Cirkovic over the phone. This is incorrect. Accordingly, I have submitted a Form F1 application to have these errors corrected.”

[7] In the Form F1 – Application (Form F1) filed on 9 October 2017, Mr Le:

(a) stated he is making application pursuant to sections 586 and 602 of the Act (paragraph 1.1);

(b) alleged the advice in the cancellation Notice of Listing issued on 20 September 2017 contained errors and sought that the matter be relisted for hearing (paragraph 2.1);

(c) asserted that he neither discontinued his unfair dismissal application nor verbally advised the Commissioner that he wanted it discontinued (paragraph 2.2);

(d) submitted that the Commissioner’s advice made no sense because discontinuance “was always subject to the respondent performing according to the agreed terms of settlement” (paragraph 2.2);

(e) advised that the “exact terms of settlement agreed on during the telephone conference” were:

• 8 weeks’ pay, described as a redundancy;



• an apology and retraction of allegations from a Mr Beeston, without admission of liability;



• a statement of service that describes a redundancy;



• a separation certificate citing redundancy; and



• payment and delivery of those documents within seven days after the deed was signed (paragraph 2.2);

(f) asserted the Commissioner advised the hearing scheduled for 25 September 2017 would be cancelled pending negotiation of specific terms of settlement (paragraph 2.2);

(g) indicated that during the period 25 September 2017 – 2 October 2017, new terms with issues that were not discussed during the conference were raised and disputed by the parties. These included a release clause and non-disparagement clause (paragraph 2.2);

(h) alleged, having re-read the cancellation Notice of Listing, that the Commissioner had only mentioned that she would cancel the hearing whereas the cancellation Notice of Listing had stated in error that he had verbally discontinued his application during the conference (paragraph 2.2); and

(i) denied he verbally discontinued his application during the conference (paragraph 2.2).

[8] The Commission file was then allocated to me and I listed the matter for a telephone Mention on 16 October 2017. In attendance at the telephone Mention were Mr Le and for RBA Architects, Mr Michael Corrigan and Mr Roger Beeston.

[9] Mr Le confirmed his position that the cancellation Notice of Listing issued on 20 September 2017 contained errors and sought that the matter be relisted for hearing. He submitted that he did not file a formal notice of discontinuance and nor did he advise the Commissioner that he wanted his application for unfair dismissal discontinued during the conference on 20 September 2017. He submitted there is jurisdiction in the Commission to amend or correct the error. Mr Le otherwise relied on the material he had outlined in his Form F1 filed on 9 November 2017, particularly the submission outlined in sub-paragraph [7](c) above.

[10] RBA Architects disputed much of what was contained in the Form F1 filed by Mr Le. It submitted that Commissioner Cirkovic did say that she would vacate the hearing in the matter and issue a cancellation Notice of Listing on 20 September 2017. It further submitted that Mr Le did not dispute the cancellation Notice of Listing when it was issued on 20 September 2017 and only did so on 9 October 2017.

[11] It seemed to me there might be utility in discussing the two disputed matters in the proposed release document and so I offered to hold discussions with the parties as a way of perhaps resolving the matter. RBA Architects accepted my offer to conciliate the disputed matters. Mr Le declined it.

Decision

[12] The background matters together with the matters raised by the parties were considered by me and an edited version of the decision delivered in transcript on 16 October 2017 follows.

[13] The Commission file indicates that the matter was discontinued during the conference on 20 September 2017 by telephone, in accordance with Rule 10 of the Fair Work Commission Rules 2013.

[14] The effect of that discontinuance is that the application was brought to an end.

[15] In certain circumstances, a discontinuance can be set aside. The issue was dealt with in the decision of the Full Bench of the Commission in AB v Tabcorp Holdings Limited 1(AB v Tabcorp), and in particular I note the following statement of the Full Bench:

“[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…”

[16] I consider this decision to be binding on me when dealing with the application made by Mr Le and therefore I do not have jurisdiction to grant the application to set aside the discontinuance that he seeks. On that basis, pursuant to s.587(1)(c) of the Act, I consider that the application made by Mr Le in his Form F1 has no reasonable prospects of success and must be dismissed.

[17] In light of the Full Bench decision in AB v Tabcorp, it is open to Mr Le to apply to a court to pursue an application to set aside the discontinuance.

[18] Alternatively, if Mr Le wishes to pursue a further, new unfair dismissal application, it is open to him to file one. In this respect, I refer Mr Le to paragraph [12] of AB v Tabcorp:

“[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.” 2

[19] I hereby order the application made by Mr Le in his Form F1 filed on 9 October 2017 be dismissed.

DEPUTY PRESIDENT

 1   [2015] FWCFB 523.

 2 Ibid at [12].

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