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Introduction

Full decision here.

What happens when an applicant discontinues their application for unfair dismissal; only to decide to reopen the matter?

Well, the short answer, is that it would appear that the Fair Work Commission does not have the power to reopen cases.

Background

On 18 October 2019, the applicant’s application for unfair dismissal was closed by a Commission conciliator on the basis that the applicant had discontinued his application. The applicant contends that the conciliator erroneously received his advice as constituting a discontinuance.

By way of commentary, I have yet to recall a case where the Commission has considered the mental health of an applicant to be a valid defence. On this point I am happy to stand corrected.

On 18 October 2019, a telephone conciliation was scheduled before a Commission conciliator in respect of the applicant’s application for an unfair dismissal remedy. In attendance at the conciliation were the applicant and the Senior Human Resources Manager for the respondent.

At the conclusion of the telephone conference, the applicant decided to discontinue his application.

The Commission’s file was closed the same day.

On 19 October 2019, ie the next day, the applicant wrote to the Commission to raise a concern with the outcome of the conciliation. He sought that the application be reopened.

Reasons for wanting the matter reopened

evidence that: In support of his “reopener” [another new terminology I have learned], the applicant submitted that:

  • He was suffering from “mental health issues” and was breaking under the stress of the conciliation, but this was ignored by the conciliator.
  • During the conciliation, the conciliator said, “Mr Saunders if you interrupt or speak over me, I will end this call.
  • In private conference, the applicant listened to the conciliator’s summation of the application without interrupting. When the applicant attempted to respond, he was “blasted” with the same response by the conciliator that he would “cut the call.”
  • He did not consider that he was rude to the conciliator or disruptive to the conciliation.
  • He reached a state of panic and was unable to address the conciliator during the discussion. The applicant said that he was in tears, shaking and started to stutter.
  • He told the conciliator to “forget it, I can’t do any of this anymore, tell my employer I give up, they win again, I’m sorry but I’m ending the call.”
  • The conciliator showed him no empathy during the call and “just closed the case.
  • He “wasn’t thinking properly” when he ended the call.

Following the conclusion of the conciliation, when his panic attack had subsided, the applicant reflected on how and why his file had been closed. He considered the closure of his application to be unfair.

Consideration

Such matters are considered by section of the Act and Rule 10 of the Fair Work Commission Rules 2013. It provides that an applicant may discontinue a matter, at any time, by lodging a notice of discontinuance, advising the Commission in writing, by fax/telephone or orally in person, or by advising the Commission of the discontinuance during the course of a conference or hearing.

All I wanted to do is end the call

During the course the hearing, the applicant contended that his statement reflected his desire to end the call. He said words to the effect of: “I knew what I was doing in the sense I wanted this to end and I wanted to get away from it.” While he submits that he did not abruptly end the call, he does not recollect the conciliator responding to his statement. Following the conciliation, the applicant.

The email

Following receipt of the discontinuance letter, the applicant emailed the Senior Human Resources Manager:

“…I’d like to say congratulations [respondent] has won. I don’t mean that in a sarcastic way, I say this with complete utter despair…

I put myself forward earlier this year to progress and achieve something and now here I am with nothing.

So again, [respondent] wins…

Anyway, that’s enough…

I am sorry you had to deal with this.

Thank you for your help.”

The applicant explained that he sent the email to the Senior Human Resources Manager because “in all honesty, I thought that was the end at that time.” However, he said that once his panic had subsided, he drafted an email to the Commission which he sent late the following evening. The email set out his concerns with the conciliation and the closure of his application.

Mental health

In dismissing the applicant to reopen the matter, this decision’s only recognition of the issue of mental health was:

“[The applicant] attributes the “mistake in ending it” to the conduct of the conciliator, who he considered to lack empathy and ignored his mental health issues. He contends that the conciliator’s conduct caused him to panic and led to a “fight or flight” response. While accepting that she was not present during the private session between [the applicant] and the conciliator, [the Senior Human Resources Manager’s] evidence is that during the joint session the conciliator was firm but not aggressive”.

Case law says it must be determined by a court

The decision went on:

“To the extent that the applicant relies upon the conduct of the conciliator to support a claim that his discontinuance be set aside for mistake or duress, an application would have to be made to a court. A Full Bench in AB v Tabcorp Holdings Limited  said that the Commission does not have the jurisdiction to determine this issue:

‘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…”

Accordingly, an assessment as to the conduct of the conciliator and its bearing upon [the applicant’s] oral discontinuance is a matter that would necessitate consideration by a court.