DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Saunders
v
Link Group T/A Link Business Services Pty Ltd
(U2019/9276)

Application for an unfair dismissal remedy – discontinuance – Rule 10 – request to reopen

[1] This decision concerns an application by Mr Jason Saunders to reopen his application for an unfair dismissal remedy which was made pursuant to s.394 of the Fair Work Act 2009 (Act).

[2] On 18 October 2019, Mr Saunders’ application was closed by a Commission conciliator on the basis that Mr Saunders had discontinued his application. Mr Saunders contends that the conciliator erroneously received his advice as constituting a discontinuance.

[3] For the reasons set out below, the application to reopen is dismissed.

Background

[4] On 18 October 2019, a telephone conciliation was scheduled before a Commission conciliator in respect of Mr Saunders’ application for an unfair dismissal remedy. In attendance at the conciliation were Mr Saunders and the Senior Human Resources Manager for Link Group, Ms Lisa Broadhead.

[5] At around 10:24am, following the conclusion of the conciliation, correspondence from the Commission conciliator was sent to the parties (18 October letter). It included the following:

“Thank you for your participation in the conciliation of the above matter. As a result of the conciliation of the matter, the Applicant has advised that they wish to discontinue their application. The matter is now taken to have been discontinued in accordance with Rule 10 of the Fair Work Commission Rules 2013. The matter is now closed.

For completeness, the Applicant should fill in return a Notice of Discontinuance (Form F50), a blank copy of which can be found below. The Applicant should provide a copy of the completed Form F50 to the Respondent as well. This can be done by fax, email or by post.

The Fair Work Commission (the Commission) will refund the application fee, if applicable, within four to six weeks of receipt of the Form F50.”

[6] A blank Form F50 notice of discontinuance was attached to the email.

[7] The Commission’s file was closed the same day.

[8] On 19 October 2019, Mr Saunders wrote to the Commission to raise a concern with the outcome of the conciliation. He sought that the application be reopened.

Contentions and evidence

[9] In support of his reopener application, Mr Saunders gave evidence that:

(a) He was suffering from “mental health issues” and was breaking under the stress of the conciliation, but this was ignored by the conciliator.

(b) During the conciliation, the conciliator said, “Mr Saunders if you interrupt or speak over me I will end this call.”

(c) In private conference, Mr Saunders listened to the conciliator’s summation of the application without interrupting. When Mr Saunders attempted to respond, he was “blasted” with the same response by the conciliator that he would “cut the call.”

(d) He did not consider that he was rude to the conciliator or disruptive to the conciliation.

(e) He reached a state of panic and was unable to address the conciliator during the discussion. Mr Saunders said that he was in tears, shaking and started to stutter.

(f) 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.”

(g) The conciliator showed him no empathy during the call and “just closed the case.”

(h) He “wasn’t thinking properly” when he ended the call.

[10] Ms Broadhead on behalf of Link Group gave evidence that:

(a) The conciliator explained the process in detail at the commencement of the conciliation. This included advising that only one person would speak at a time and both parties would be given an opportunity to be heard.

(b) During initial discussions, Mr Saunders attempted to interrupt her frequently and was directed by the conciliator to “wait until [she] finished.” Ms Broadhead did not consider the conciliator said this aggressively to Mr Saunders, however “he was firm as it happened on more than one occasion.”

(c) Following opening statements, the parties broke into private session. Ms Broadhead said that she cannot comment on the nature of discussions between Mr Saunders and the conciliator during this time.

(d) Following the conclusion of the conciliation, Ms Broadhead received an email from Mr Saunders, which stated “Link has won.” Ms Broadhead understood “from the language used within the email that Mr Saunders would not pursue the matter further.”

[11] In response to Ms Broadhead’s contentions, Mr Saunders said that:

(a) There were two or perhaps three occasions where the conciliator raised his voice loudly and said words to the effect of, “Mr Saunders, if you interrupt or speak over me I will end this call.”

(b) He does not accept that he frequently interrupted Ms Broadhead.

(c) He disputes Ms Broadhead’s submission that the conciliator’s conduct was not aggressive, but firm.

(d) Ms Broadhead was not present during the private session with the conciliator and “this is where everything fell apart with the way I was spoken to through out [sic] the entire call, especially at this point which resulted in a panic attack. The call was ended due to this and the handling of the conciliator.”

(e) He accepts that he sent the email to Ms Broadhead following the conciliation because he was surprised that the conciliator had closed his file. Mr Saunders was “extremely upset by the whole process.”

(f) His case failed due to the conciliator, Link Group’s response to the application and the panic attack “which ultimately let link Group off the hook.”

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

Consideration

[12] In the determination of Mr Saunders’ request to reopen the application, it is first necessary to consider whether Mr Saunders’ advice to the conciliator constitutes a discontinuance within the meaning of s.588 of the Act.

[13] Rule 10 of the Fair Work Commission Rules 2013 (FWC rules) deals with the discontinuance of an application in a proceeding before the Commission. It provides that an applicant may discontinue a matter, at any time, by lodging a notice of discontinuance, 1 advising the Commission in writing, by fax/telephone or orally in person,2 or by advising the Commission of the discontinuance during the course of a conference or hearing.3

[14] It is not in dispute that Mr Saunders did not file and serve a completed Form F50 notice of discontinuance. On the evidence before the Commission, Mr Saunders said to the conciliator during private conference 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.”

[15] During the course the hearing, Mr Saunders 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, Mr Saunders said that he expected one of following would occur:

(a) He thought “that would be the end of it” and that he would receive a letter from the Commission, and in fact he received the 18 October letter within the hour.

(b) Alternatively, he thought he would receive a return telephone call from the conciliator.

[16] Following receipt of the 18 October letter, Mr Saunders emailed Ms Broadhead. The email relevantly stated as follows:

“…I’d like to say congratulations Link 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, Link wins…

Anyway, that’s enough...

I am sorry you had to deal with this.

Thank you for your help.”

[17] Mr Saunders explained that he sent the email to Ms Broadhead 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.

[18] I find that Mr Saunders’ statement to the conciliator “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” was an oral discontinuance within the meaning of rule 10(2)(c) of the FWC rules. The statement is not confined by reference to the conciliation, as contended by Mr Saunders. His desire to end the call was made in the context that he could not do “any of this anymore,” and with an instruction to advise Link Group that he gives up and that they win again. He provides no explanation for these parts of his statement.

[19] Further, his receipt of the 18 October letter is consistent with his own view that a potential outcome following the conciliation was that it “would be the end of it.” The email to Ms Broadhead shortly thereafter provides contemporaneous evidence of Mr Saunders’ view that his matter was at an end and Link Group had won.

[20] Mr Saunders later decided to raise his concerns about the conciliation process with the Commission. To this end, Mr Saunders said words to the effect of, “I realised I made a mistake in ending it, but I felt there was no other way at that time.” I consider this to be demonstrative of a change in mindset from Mr Saunders’ earlier intent to discontinue the application during the conciliation.

[21] Mr Saunders 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 Mr Saunders and the conciliator, Ms Broadhead’s evidence is that during the joint session the conciliator was firm but not aggressive.

[22] To the extent that Mr Saunders 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 4 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…”

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

Conclusion

[24] I am satisfied that Mr Saunders discontinued his application for an unfair dismissal remedy during the conciliation on 18 October 2019. Accordingly, the request to re-open the matter is dismissed on the basis that it has no reasonable prospects of success in the Commission. 5

DEPUTY PRESIDENT

Appearances:

J Saunders, applicant

L Broadhead from the respondent

Hearing details:

2020
Melbourne (telephone hearing):
April 15.

Printed by authority of the Commonwealth Government Printer

<PR718131>

 1   FWC rules 10(2)(a)

 2   Ibid 10(2)(b)

 3   Ibid 10(2)(c)

 4   [2015] FWCFB 523 at [11]; See also Joe Caruso v Pittwater RSL Club Limited T/A Pittwater RSL [2018] FWCFB 5970 at [30]-[31]

 5   Section 587(1)(c) of the Act