1
[2013] FWCFB 2530
DECISION
Fair Work Act 2009
s.604—Appeal of decision
Chandra Gupta Narayan
v
MW Engineers Pty Ltd
(C2013/3659)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT SAMS
COMMISSIONER BULL MELBOURNE, 29 APRIL 2013
Unfair dismissal appeal - s.604 Fair Work Act 2009 (Cth) - appeal from a decision to dismiss
an application to set aside notice of discontinuance -s.586 is a power to correct or amend an
application, not a power to revoke or set aside a notice of discontinuance - application
discontinued - no impediment to subsequent application - subject to time limits - ss.725 and
729 considered - permission to appeal granted - appeal upheld and decision quashed.
[1] The appellant, Mr Chandra Gupta Narayan was dismissed from his employment with
the respondent on 5 June 2012, by reason of redundancy. Mr Narayan made an application for
an unfair dismissal remedy on 21 June 2012. The application was listed for conciliation on 17
July 2012. On 16 July, Mr Narayan contacted the registry and advised that he was
withdrawing his application. A formal notice of discontinuance was filed on 31 July 2012. On
10 December 2012 Mr Narayan contacted the Fair Work Commission1 and indicated he
wished to reopen his matter. Senior Deputy President Hamberger dealt with the matter based
on written material submitted by the parties and decided not to grant Mr Narayan’s
application to revoke his notice of discontinuance. Mr Narayan has appealed his Honour’s
decision and that is the matter before us.
[2] The matter before the Senior Deputy President was an application to revoke the notice
of discontinuance filed by Mr Narayan on 31 July 2012. His Honour’s decision is
encapsulated in the following paragraphs:
“[11] The issue to be determined in this matter is whether it is appropriate in the
circumstances for the Fair Work Commission to set aside the notice of discontinuance.
[12] Section 586 of the Act states:
‘FWA may:
(a) allow a correction or amendment of any application, or other document
relating to a matter before FWA, on any terms that it considers appropriate; or
AUSTRALIA FAIR WORK COMMISSION
[2013] FWCFB 2530
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(b) waive an irregularity in the form or manner in which an application is made to
FWA.’
[13] The power in s.586, and Fair Work Australia’s ability to set aside a notice of
discontinuance, was considered by Senior Deputy President Harrison in Aguilar v. Qantas2. In
that decision Her Honour ‘assumed in the Applicant’s favour that s.586 is a source of power’
to set aside a notice of discontinuance. I will make the same assumption.
[14] However while I am willing to assume that there is power to set aside notices of
discontinuance it would be contrary to the public interest for such notices to be set aside other
than in exceptional circumstances. In general I would be reluctant to exercise any discretion to
set aside notices of discontinuance other than in cases of duress or error. It could also be
appropriate to set aside notices of discontinuance where a notice had been filed based on the
settlement of a matter where the respondent had then failed to honour its side of the
settlement.
[15] I do not consider that there are any exceptional circumstances in the current case. It is
clear that the applicant was capable of applying for jobs and attending for interviews at the
time he filed his notice. I do not doubt that he was stressed by his dismissal, but this is hardly
unusual. There is no suggestion that any duress was applied by the respondent to obtain the
notice of discontinuance. It is a reasonable inference that the applicant reconsidered his
withdrawal of his claim when he was unsuccessful in obtaining alternative employment. The
lengthy delay between the notice and the application to revoke is also a consideration
weighing heavily against granting the application.
Conclusion
[16] In these circumstances I have decided not to grant Mr Narayan’s application to revoke
his notice of discontinuance.”3
[3] Section 588 of the Fair Work Act 2009 (Cth) (the Act) provides that a person who has
applied to the Commission may discontinue the application:
(a) in accordance with the procedural rules (if any); and
(b) whether or not the matter has been settled.
[4] There are no applicable procedural rules and Mr Narayan’s matter had not been settled
at the time he lodged his notice of discontinuance.
[5] The decision at first instance raises two important issues, namely: whether s.586
provides the Commission with the power to grant an application to set aside the notice of
discontinuance Mr Narayan lodged on 31 July 2012 and whether it was necessary for him to
make such an application. In our view the answer to both questions is no.
[6] As to the first issue, s.586 provides a power to correct or amend an application, or to
waive an irregularity in the form or manner in which an application is made. It is not a power
to revoke or set aside an application. Once filed a notice of discontinuance is self executing
and it brings the application to an end.4
[7] It is not uncommon for the Commission to deal with applications to set aside or revoke
a notice of discontinuance. But this is the first occasion on which a Full Bench has considered
whether s.586 provides a source of power for the determination of such applications.
[2013] FWCFB 2530
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[8] The first instance decisions dealing with such applications often rely on decisions
made under an earlier, and quite different, legislative framework. The decision in Kontogouris
v Tradeflex Services Group Pty Ltd5 is a case in point. In that matter Senior Deputy President
Watson said:
“[10] The Commission possesses general powers in s.111 of the Act , extended to apply to Part
VIA of the Act by s.170JE. These powers include powers to:
“correct, amend or waive any error, defect or irregularity, whether in substance or
form” [s.111(1)(q)]; and
“generally give all such directions, and do all such things, as are necessary or expedient
for the speedy and just hearing and determination of the industrial dispute”
[s.111(1)(t)].
[11] In my view, these general powers do provide power to grant leave to an applicant to
withdraw a Notice of Discontinuance executed in error, in effect waiving the error and doing
what is necessary for the just hearing and determination of a matter.
[12] I accept that the Notice of Discontinuance is intended to bring finality to an application
under s.170CE of the Act and it would be unusual for the Commission to exercise its general
powers to grant leave to an applicant to withdraw such a notice.”6
[9] Kontogouris has been applied in the context of the current legislative framework, on
the basis that the power in s.586 is said to be similar to the power in s.111(1)(t) of the
Workplace Relations Act 1996 (Cth).7 Such an approach is erroneous. The powers in s.586
and in the former s.111(1)(t) are quite different. There is no equivalent to s.111(1)(t) in the
Act.
[10] We also note that the decision of Senior Deputy President Harrison in Aguilar v
Qantas Airways Limited8 has been relied on in subsequent cases to support the general
proposition that the Commission’s power to set aside a notice of discontinuance is ‘well
settled’.9 But Aguilar does not support such a proposition. It is apparent from her Honour’s
reasons that it was assumed that s.586 was a source of power to set aside a notice of
discontinuance, but it was unnecessary to conclusively determine that question because the
application failed on the merits. This is clear from paragraph [5] of her Honour’s decision:
“[5] For the purposes of this decision I have assumed in the Applicant's favour that s.586 is a
source of power to set aside his notice of discontinuance. He has not, however, persuaded me
to exercise my discretion to do so. The submissions of Qantas in this respect were compelling
and I have generally adopted.”10
[11] Whether or not a power to correct, amend or waive an irregularity in an application or
document is a source of power permitting the withdrawal of a notice of discontinuance was
considered, and rejected, by the Full Commission of the Industrial Commission of South
Australia in Tomlinson v Leveda Inc.11 The Full Commission said:
“Dealing with the option whether the worker can withdraw his notice of discontinuance it
should be said there is no provision of the Act or Rules which specifically deals with this issue.
The procedural powers of the Commission are contained in ss 165-175 of the Act. Section
166(1)(a) empowers the Commission to allow the amendment of an application, notice,
[2013] FWCFB 2530
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submission, report or other document associated with proceedings. Even giving that provision
a liberal interpretation we do not think that the general understanding of amendment
proceedings, which is really concerned with assisting in defining the actual controversy
between the parties, could include the withdrawal of a formal step in the proceedings.
Section 166(1)(b) empowers the Commission to correct an error, defect or irregularity. Again
we do not think that power is intended to apply in circumstances where a party has a change of
mind about the continuation of the proceedings or has mistaken the consequences of
discontinuance. Rather the subsection is directed towards ameliorating the effect of a variance
or failure to comply with a procedure specifically stated in the Act or Rules so that the
Commission can proceed to deal with the real dispute between the parties without the
limitations of procedural defects.”12
[12] There are differences between s.166 of the Industrial and Employee Relations Act
1994 (SA) and s.586 of the Act, but despite these differences Tomlinson supports the
conclusion we have reached as to the scope of the power in s.586.
[13] We would also reject the suggestion that the reference to ‘equity, good conscience and
the merits of the matter’, in s.578(b) of the Act, provides a source of power to permit the
withdrawal of a notice of discontinuance.13 Section 578(b) is not a source of power, rather it is
a matter which must be taken into account in the exercise of the Commission’s discretion in
performing functions or exercising powers found elsewhere in the Act. As the Full SA
Commission observed in Tomlinson:
“The remaining consideration is whether the general principle that the Commission, in
exercising its jurisdiction, is governed in matters of procedure and substance by equity, good
conscience and the substantial merits of the case without regard to technicalities, legal forms or
the practice of courts (s 154) permits the Commission to consider the application regardless of
the constraints of its powers.
The Commission's obligation to apply equity and good conscience is confined by its
jurisdiction and powers. It cannot use the principles of equity and good conscience to extend
its statutory powers: Walkley v Dairyvale Co-operative Ltd (Preliminary Issues) (1972) 39
SAIR 327 at 358. To do so would be to undermine the authority and standing of the
Commission and to lower the confidence of the community in its adjudication. Public policy
requires that the parties are entitled to conduct their litigation confident that the Commission
will act within its charter.”
[14] For the reasons given we have concluded that s.586 does not empower the
Commission to determine an application to set aside a notice of discontinuance. For
completeness we note that the Commission may have power to deal with such an application
if the notice of discontinuance was filed by mistake or under duress. In such circumstances,
the general law may operate to render the notice a nullity. But that is not this case.
[15] Subdivision B of Division 3 of Part 6-1 of the Act is relevant to the determination of
the second issue. Part 6-1 provides a set of legislative rules relating to applications for
remedies under the Act. Division 3 of Part 6-1 prevents multiple applications or complaints in
relation to the same conduct. In respect of unfair dismissal applications the ‘general rule’ is
set out in s.725:
[2013] FWCFB 2530
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“A person who has been dismissed must not make an application or complaint of a
kind referred to in any one of sections 726 to 732 in relation to the dismissal if any of
those sections applies.”
[16] Section 729 deals with unfair dismissal applications:
“(1) This section applies if:
(a) an unfair dismissal application has been made by the person in relation to the
dismissal; and
(b) the application has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction;
(iii) failed because the FWC was satisfied that the dismissal was a case of
genuine redundancy.
(2) an unfair dismissal application is an application under subsection 394(1) for a remedy
for unfair dismissal.”
[17] The effect of the general rule in s.725 is that if s.729 applies then the person who made
the unfair dismissal application may not make any further complaint or application for relief
under the Act or ‘another law’ (as defined in s.732). So if a dismissed employee (such as Mr
Narayan) has made an unfair dismissal application under s.394(1) (as Mr Narayan has done)
and none of the circumstances in s.729(1)(b) apply, then the dismissed employee (Mr
Narayan) cannot make another application or complaint in relation to his or her dismissal
under either the Act or under ‘another law’. This would preclude the dismissed employee
from making:
a dismissal remedy bargaining order application under s.229;
a general protections application made under s.365 or Division 2 of Part4-1;
an unlawful termination application made under Division 2 of Part 4-1;
an unfair dismissal application under s.394.
[18] The dismissed employee would also be precluded from making an application or
complaint under another law, that is an application or complaint made under:
(a) a law of the Commonwealth (other than the Act) or
(b) a law of a State or Territory (see s.732(2)).
[19] The critical question in the context of this case is whether any of the circumstances in
s.729(1)(b) apply. It will be recalled that one of those circumstances was that:
“... the application has not:
(i) been withdrawn by the person who made the application ...” [emphasis added]
[20] In this case Mr Narayan has discontinued his unfair dismissal application. It follows
that s.729 does not apply and so the general rule in s.725 does not stop Mr Narayan from
making another unfair dismissal application in relation to his dismissal by the respondent.
[21] The legislative intent of Subdivision B of Division 3 of Part 6-1 is clear - to prevent a
party from making multiple applications in relation to the one dismissal in circumstances
[2013] FWCFB 2530
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where their initial application has been considered on the merits and dismissed. With respect
to what became Subdivision B of Division 3 of Part 6-1 of the Act, paragraphs 2707 - 2710 of
the explanatory memorandum to the Fair Work Bill 2008 stated:
“2707. This Subdivision is intended to prevent a person ‘double-dipping’ when they have
multiple potential remedies relating to a dismissal from employment by seeking to limit a
person to a single remedy.
2708. Clauses 726 to 732 set out all of the potential remedies that may apply. Clause 725 is the
key operative provision. It provides that if a person has made an application that falls within
any of clauses 726 to 732 then they may not bring an application that falls within any of the
other clauses.
2709. Each of clauses 726 to 732 deals with different potential remedies. They each set out
particular circumstances in which a person may not be prevented from making an application
under one of the clauses even where they have initiated an application under another clause.
2710. In all cases the anti-double dipping provisions will not apply where the initial
application has:
been withdrawn; or
failed for want of jurisdiction.”
[22] The use of the word ‘withdrawn’ in s.729(1)(b) rather than ‘discontinued’ is curious
and may be significant in cases where an applicant files a conditional discontinuance. But
whatever significance may be attached to the difference in terminology it is clear that the
unconditional discontinuance of an application means that it has been withdrawn, within the
meaning of s.729(1)(b)(i).
[23] Viewed in context, the express prescription of the circumstances in which multiple
unfair dismissal applications may not be made suggests that if a particular case does not fall
within the scope of the circumstances specified then a further unfair dismissal application may
be made. This is so because a person who has been dismissed has a right to apply to the
Commission for an unfair dismissal remedy (s.394). The FW Act provides that before
considering the merits of such an application certain matters must be determined (e.g. that the
application was made within the requisite time period; the applicant was protected from unfair
dismissal etc), but that does not affect the right to make the application.
[24] If an unfair dismissal applicant (such as Mr Narayan) unconditionally discontinues
their application before the Commission has determined it on the merits then they (Mr
Narayan) can make a fresh application in respect of the same dismissal.
[25] Two observations should be noted in relation to any such subsequent application.
[26] First, if the initial unfair dismissal application had been discontinued after a settlement
agreement had been concluded then the Commission may, on application by the employer,
dismiss the subsequent unfair dismissal application pursuant to s.399A(1)(c).
[27] Second, the subsequent application must be accompanied by the prescribed application
fee ($64.20) (s.395 and reg 3.07) and must be made within 21 days after the dismissal took
effect or within such further period as the Commission allows (s.394(2)).
[2013] FWCFB 2530
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[28] The first observation does not apply to this case (as there was no settlement
agreement), but the second does.
[29] In this case, if Mr Narayan was minded to make a further unfair dismissal application
in relation to his dismissal by the respondent he will need to apply to extend the time period
within which to make the application. Section 394(3) is relevant in this regard. It states:
“(3) The FWC may allow a further period for the application to be made ... if the FWC is
satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect;
and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
[30] It follows from the foregoing that there was no power to grant (or refuse) Mr
Narayan’s application to set aside the notice of discontinuance lodged on 31 July 2012.
Further, Mr Narayan is at liberty to file another unfair dismissal application in relation to the
termination of his employment by the respondent. Any such application will be subject to the
time periods specified in s.394(3).
[31] Given the novel nature of issues raised we will grant permission to appeal as we
consider it is in the public interest to do so.
[32] The Senior Deputy President erred in his assumption that s.586 provided the requisite
power to deal with an application to set aside a notice of discontinuance filed pursuant to
s.588 of the Act. Accordingly, we will quash the decision subject to appeal. We do not
propose to take any further action in relation to the matter that is the subject of the appeal, for
the reasons given.
PRESIDENT
Appearances:
C G Narayan on his own behalf.
No appearance by the respondent.
Hearing details:
2013.
Sydney:
April 22.
[2013] FWCFB 2530
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Printed by authority of the Commonwealth Government Printer
Price code C, PR535994
1 Previously Fair Work Australia
2 [2010] FWA 5669.
3 [2013] FWC 1329.
4 Tomlinson v Leveda Inc (1996) 65 IR 178 at [180].
5 PR902620, 23 March 2001 per Watson SDP
6 Ibid at [10]-[12].
7 Trazisc v Universal Music Australia Pty Ltd T/A Universal Music Australia [2011] FWA 4496 at [16].
8 [2010] FWA 5669.
9 Dabadice v Kausercraft [2012] FWA 1995 at [4]-[8]; Tutin v Galaxy No.1 Pty Ltd T/A ESP Taskforce [2013] FWC 691.
10 [2010] FWA 5669.
11 (1996) 65 IR 178.
12 Ibid at [180]-[181].
13 Hammond v Australia and New Zealand Banking Group Limited [2011] FWA 1650 at [13].
