Thi Dang v Dermatology Concepts

[2016] FWC 8896

[2016] FWC 8896

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Thi Dang
v
Dermatology Concepts
(U2016/9315)

DEPUTY PRESIDENT CLANCY MELBOURNE, 12 DECEMBER 2016

Application for relief from unfair dismissal – matter discontinued – application dismissed pursuant to s.587 of the Act.

[1] On 11 July 2016, Mrs Thi Dang made an application for unfair dismissal remedy in relation to her dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] The application was referred to conciliation on 19 September 2016. At conciliation Mrs Dang was represented by Mr D Bean of Springvale Monash Legal Service (SMLS). In addition, Mrs Dang’s daughter attended as a support person and a Vietnamese interpreter was in attendance, as had been requested by Mrs Dang in her F2 application form.

[3] Following conciliation, an email dated 19 September 2016 was sent to parties by the conciliator. It served to confirm that Mrs Dang had advised after the conciliation that she would discontinue her application. The email further stated that Mrs Dang would need to file a Form F50 – Notice of Discontinuance with the Fair Work Commission (the Commission).

[4] Approximately two weeks later on 5 October 2016, SMLS contacted the Commission to inform that Mrs Dang intended to request that her matter be reopened. SMLS was advised that this request must be made in writing.

[5] On 9 October 2016, an email was sent to the Commission by Dermatology Concepts seeking written confirmation that the file had been closed, despite a Notice of Discontinuance not yet having been received from Mrs Dang. The Commission replied to this email on 10 October 2016, advising that a Notice of Discontinuance had not been filed and that it could contact Mrs Dang or her representative directly regarding this. The email further advised that the matter was closed with the Commission on 19 September 2016.

[6] On 28 October 2016, Mrs Dang delivered a letter to the Registry of the Commission in Melbourne. In this letter it was stated by Mrs Dang that her matter was not resolved and that correspondence concerning the outcome of conciliation was sent only to SMLS, and not also to her residential address. The letter further stated that Mrs Dang only received correspondence from SMLS regarding the status of her matter on 3 October 2016, and the fact that the 19 September 2016 email correspondence was not also sent to her residential address had caused her confusion and stress. Following an unsuccessful attempt to contact Mrs Dang’s representative at SMLS, Mrs Dang advised through a telephone interpreter on 28 October 2016 that SMLS had indicated that it could no longer assist with her unfair dismissal application. Mrs Dang referred to a letter dated 26 September 2016 in which SMLS stated that following the unsuccessful conciliation on 19 September 2016, Mrs Dang had decided that she did not want to pursue her application further. Mrs Dang asserted, however, that she had never given such an instruction and confirmed that she wanted to proceed to arbitration. Mrs Dang was verbally advised by the Commission that this request should be put in writing as soon as possible.

[7] On 28 October 2016, Mrs Dang’s daughter telephoned the Commission to confirm Mrs Dang’s advice that she did not want to discontinue her application but instead wished to request that it proceed to arbitration. It was reiterated to Mrs Dang’s daughter that this request should be made in writing with reasons provided as soon as possible.

[8] On 31 October 2016, an email providing reasons for the request was received from Mrs Dang. Mrs Dang primarily referred to the confusion and misunderstanding that had occurred due to her limited English skills. It was stated that despite having an interpreter at conciliation, there still remained confusion that resulted in miscommunication between her and her representative in relation to her intentions with regard to her application. As for the delay in informing the Commission of this, Mrs Dang again stated that correspondence from SMLS dated 26 September 2016 was only received by her on 3 October 2016 and also that she herself did not receive the email sent by the conciliator on 19 September 2016.

[9] The Commission subsequently sought a response from Dermatology Concepts regarding Mrs Dang’s request. Dermatology Concepts stated that it was of the understanding that Mrs Dang had withdrawn her application and that this had been confirmed by the conciliator and the matter had then been closed. It asserted that the matter should not be reopened because Mrs Dang had decided to voluntarily withdraw her application.

[10] On 2 November 2016, SMLS contacted the Commission and confirmed that Mrs Dang told the conciliator that she wanted to discontinue her application on the day of conciliation, and has since changed her mind. SMLS then stated that it had advised Mrs Dang that it could not assist her further with her unfair dismissal application. As such, the Commission requested that a Form F54 – Notice of representative ceasing to act be filed. A Form F54 was received from SMLS on 2 November 2016.

[11] Also on 2 November 2016, Dermatology Concepts provided a written response to Mrs Dang’s request. Stating that it believed there was no basis for the matter to proceed to arbitration, Dermatology Concepts pressed the following points:

● Mrs Dang had legal representation present at the conciliation;

● She spoke to the conciliator on several occasions during the conciliation;

● She had an interpreter present during the conciliation;

● She elected to discontinue the application, as was later confirmed; and

● She chose instead to pursue an underpayment claim, but was yet to provide any documentation to support such a claim.

[12] On 7 November 2016, Mrs Dang submitted that as she did not receive any verbal or written confirmation as to the outcome of conciliation, she had no awareness concerning the status of her matter at the time. Mrs Dang also asserted that because she did not sign an agreement on the day of the conciliation to discontinue her application, it can proceed.

[13] Dermatology Concepts also provided further submissions on 8 November 2016. It again referred to the nature and extent of representation and support available to Mrs Dang at the time of conciliation when she decided not to pursue her application further.

[14] Parties were subsequently sent an email from my Chambers on 23 November 2016, requesting that they provide any final material by 30 November 2016.

[15] A further email was received from Dermatology Concepts on 29 November 2016. It stated that in addition to its previous submissions, at no stage did Mrs Dang communicate that she had any difficulty understanding the conciliation process or its outcome.

Consideration

[16] Notwithstanding that Mrs Dang had not filed a Notice of Discontinuance, the material before me suggests that the conciliator, Mrs Dang’s legal representative at the relevant time and Dermatology Concepts all share the view that she advised on the day of conciliation that she wanted to discontinue her application.

[17] Rule 10 of the Fair Work Commission Rules 2013 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 by letter, email, fax or telephone 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) and 3.07(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.

[1] It is clear from Rule 10(1) that an applicant may discontinue their application at any time. While it is stated in Note 2 to Rule 10(2) that it is the Commission’s preference for applicants to advise of their discontinuance by lodging a Notice of Discontinuance, this is not the only way an application may be discontinued. Rule 10(2)(b) and (c) provide a number of other ways that an application may be discontinued.

[2] In this case, Mrs Dang attended a Fair Work Commission conciliation on 19 September 2016. I am satisfied on the material before me that after this conciliation, Mrs Dang notified the Commission that she either wished to discontinue or withdraw her application, or both. In circumstances where Mrs Dang had the benefit of the advice of her representative, an interpreter and her support person, I am satisfied that she validly discontinued her application after the conciliation on 19 September 2016.

[3] Mrs Dang’s request that her application proceed to arbitration in essence amounts to an application to have her discontinuance set aside. I note in the context of an application to have a Notice of Discontinuance set aside, the Full Bench in AB v Tabcorp Holdings Limited 1 has previously stated that the Commission cannot grant a declaration that a Notice of Discontinuance was a nullity if filed by mistake or under duress because, as an arbitral body, the Commission cannot grant declaratory relief.2 I consider the same principle applies in relation to Mrs Dang’s discontinuance. If Mrs Dang seeks a declaration that her discontinuance was a nullity because it was notified by mistake, I consider that such an application would have to be made to a court.

[4] Section 587(1) of the Act provides as follows:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

[5]
As I am satisfied Mrs Dang discontinued her application after the conciliation on 19 September 2016, her application for relief from unfair dismissal is dismissed under s.587(1)(c) of the Act as it has no reasonable prospects of success. An order to this effect will be issued in conjunction with this decision.

DEPUTY PRESIDENT

 1   [2015] FWCFB 523.

 2 Ibid at [11].

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