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

CaseChat Overview and Summary

The case of Wayne McCaig against DP World Melbourne Limited, trading as DP World Melbourne, was heard by the Fair Work Commission, where the applicant sought relief from an unfair dismissal. Mr. McCaig, an employee of DP World Melbourne, had been dismissed, and he contested the fairness of this decision, alleging that the dismissal was unjust and did not meet the criteria for genuine redundancy as claimed by the employer. The legal issues before the Commission centred on whether the dismissal was procedurally fair, whether it was genuinely for redundancy, and if the employer had considered all mitigating factors before making the decision to terminate Mr. McCaig's employment.

The Commission examined the procedural fairness of the dismissal process, including whether Mr. McCaig was adequately informed of the reasons for the proposed dismissal and given an opportunity to respond. The employer argued that the dismissal was part of a redundancy process, necessitated by operational changes that rendered Mr. McCaig's position obsolete. Mr. McCaig, on the other hand, argued that he was not given a fair chance to demonstrate alternative employment options or to contest the redundancy claim. The Commission also had to consider the employer's obligation to mitigate the impact of the dismissal, such as by offering redeployment or retraining opportunities.

In its decision, the Commission found that while the employer had taken steps to consult with Mr. McCaig, the process was flawed in that it did not fully inform him of the reasons for the redundancy claim nor allow him to adequately respond. The Commission concluded that the dismissal was not procedurally fair and was not genuinely for redundancy, as the employer had not properly assessed all potential mitigating factors before making the decision. Consequently, the application for relief from unfair dismissal was upheld, and the Commission ordered that Mr. McCaig be reinstated to his former position or, alternatively, be compensated for the loss of employment.

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

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established