Wayne McCaig v DP World Melbourne Limited T/A DP World Melbourne

[2015] FWC 8415

[2015] FWC 8415

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wayne McCaig
v
DP World Melbourne Limited T/A DP World Melbourne
(U2015/13668)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 4 DECEMBER 2015

Application for relief from unfair dismissal.

[1] Mr Wayne McCaig filed an application alleging the termination of his employment by DP World Melbourne Limited was unfair. On 17 November 2015, DP World advised that the parties had reached an in principle settlement and on the same day, Mr McCaig filed a notice of discontinuance.

[2] On 19 November 2015, Mr McCaig advised the Commission that he had filed the notice of discontinuance by mistake and under extreme duress. He said he was not in a fit or proper state of mind when he filed the notice of discontinuance. He asked that his application be reopened.

[3] On 23 November 2015, a letter was sent to Mr McCaig. Mr McCaig’s attention was drawn to the decision of the Full Bench in AB v Tabcorp Holding Limited 1 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.

[4] The Full Bench further noted at paragraph [12] as follows:

“[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.”

[5] Mr McCaig was asked to advise the Commission if in light of this decision he wished to pursue his application to set aside the notice of discontinuance and if he did, he needed to file material to support that application by 30 November 2015. He was directed to address why I should not dismiss his application to reopen under s.587(1)(c) of the Fair Work Act 2009.

[6] Mr McCaig filed material explaining why he filed the notice of discontinuance. He also provided a statement from his treating practitioner. He also filed material about the matters that led to the termination of his employment.

Consideration

[7] Mr McCaig was advised a Full Bench of the Fair Work Commission has determined that the Commission does not have the power to set aside a notice of discontinuance. Mr McCaig 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. I make no judgement about the matters alleged by Mr McCaig as DP World has not had an opportunity to respond to the allegations and the allegations have not been tested.

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

DEPUTY PRESIDENT

 1   [2015] FWCFB 523.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR574732>