Termination of employment - application for leave to withdraw Notice of Discontinuance

[1] This matter was commenced by an application [Form R18], made pursuant to s.170CE of the Workplace Relations Act 1996 (the Act) by A Caruana (the applicant) in relation to the termination of his employment by STA Pty Ltd (the respondent). The application was lodged in the Commission on 26 June 2000, by the applicant's union and nominated the Australian Workers' Union (the AWU).

[2] By notice of the Commission on 5 July 2000, the matter was listed for a conciliation conference on 3 August 2000 before Mr I McKenzie, subject to a direction by myself to Mr McKenzie to inquire and report. The notice of listing was forwarded to the applicant and the respondent by post, and to the AWU by facsimile. The conference proceeded on that date. The applicant was represented by Mr R Fenby of the AWU. The applicant attended the conference with Mr Fenby. The respondent was represented by Mr G Amoroso, with Mr A Grey attending.

[3] During the course of the conference, the parties met separately. Mr Fenby, in the presence of the applicant, conveyed a settlement proposal to the respondent through Mr McKenzie. The respondent accepted the offer. Mr McKenzie recorded the settlement in a Report Back document as follows:

(2) Provide traffic controller & road work signing and safety certificate

[4] The Report Back document, containing that notation by Mr McKenzie, was signed by Mr Fenby, Mr Grey and Mr McKenzie. Before leaving the conference, the applicant signed a Notice of Discontinuance [Form R23] and left it with Mr McKenzie.

[5] On 23 August 2000, the Commission received, by facsimile, two letters from Maurice Blackburn Cashman, solicitors (the solicitors): one announcing its representation of the applicant and the other requesting a second conciliation. Following Registry advice to the solicitors that a Notice of Discontinuance had been filed on 3 August 2000, the solicitors wrote again, on 25 August, requesting that the matter be restored pursuant to Rule 43(5) of the Commission's rules. It was suggested that the Notice of Discontinuance was signed prior to the performance of the terms of settlement negotiated, contrary to the instructions of the applicant, that the terms of settlement were not formalised in writing and that the applicant signed the Notice of Discontinuance under duress. [Given the signature of the applicant and the written and signed details of settlement in the Report Back document, the first two suggestions are factually incorrect.]

[6] I wrote to the solicitors on 4 September 2000, advising that Rule 45(5) did not apply in the case of a Notice of Discontinuance executed by an applicant and sought advice as to whether there was any other basis relied on for restoring the application. On 7 September 2000, the solicitors applied to have the Notice of Discontinuance set aside.

[7] Following preliminary hearings on 14 February and 7 March 2001, the application to set aside the Notice of Discontinuance was heard on 3 April 2001, subject to the filing of written submissions and witness evidence. In that hearing Ms C Serpell, of counsel, represented the applicant. Mr G Katz, of counsel, represented the respondent.

[8] The applicant gave evidence as to the circumstances of the 3 August conference. His written evidence was that:

· during a break in the conference Mr Fenby told him that because the respondent had three witnesses and a lot more money, he should `sign the papers'

· Mr McKenzie showed him a Notice of Discontinuance

· he said he was not signing it because he was not guilty and didn't want to sign the form. Mr Fenby told him he didn't have a hope

· Mr McKenzie gave Mr Fenby a form which he signed (the Report Back document)

· Mr McKenzie then gave him a Notice of Discontinuance. He was confused. Mr Fenby told him to sign it. He felt under pressure to sign. He signed it because he had been told he could not win his case

· after signing the form, he continued to argue with Mr Fenby. The argument continued in the lift

· He was unhappy with his representation and the next day arranged a meeting with AWU State Secretary, Bill Shorten at the earliest time Mr Shorten was available. At the meeting Mr Shorten sent him to the AWU's solicitors, Maurice Blackburn Cashman, who followed the matter up in the Commission.

[9] The applicant's vive-voce evidence elaborated somewhat on his written evidence. The applicant conceded that the settlement arose from an offer by Mr Fenby, through Mr McKenzie, which was accepted by the respondent. He allowed Mr McKenzie to convey the offer to the respondent. The Report Back document was then executed and he signed the Notice of Discontinuance. He reiterated that he was confused and felt pressured into signing and had wanted to proceed with his application.

· the Commission had power [ss.111(1)(p) and (q)] to set aside the Notice of Discontinuance to allow the amendment of the Notice of Discontinuance to correct, amend or waive any error [Kontogouris and Tradeflex Services Group Pty Ltd, Print PR902620 and Ngo and R.T. Kelly, Print P0542]

· the applicant signed the Notice of Discontinuance in error in that he relied on erroneous advice of Mr Fenby, that he was in error as to his rights and his signing of the Notice of Discontinuance was not voluntary. Reliance was placed on Clark and Ringwood Private Hospital [Print P5279] to submit that the execution of the Notice of Discontinuance arose from the error of his representative and that the consequences of that error should not fall upon the applicant.

· the applicant was confused and subject to duress in signing the Notice of Discontinuance, in that he was under pressure to do so.

[11] Mr A Grey, Managing Director of the respondent gave evidence that:

· the details of the settlement reached are recorded in the Report Back Document. At no stage in the conference was it suggested that the applicant had not voluntarily entered into the settlement

· he was not witness to anything said between the applicant and Mr Fenby

· the terms of the settlement arose from an offer from the applicant's side, communicated to the respondent by Mr McKenzie. The respondent agreed to the settlement verbally and Mr McKenzie then committed the terms to writing.

· this was a case where the applicant had changed his mind. There is no power to set aside the Notice of Discontinuance [P Nock and Airservices Australia, Print S4616 and Tomlinson v Leveda Inc, (1996) 63 SAIR 455]. He conceded that power existed to amend or vary erroneous documents, such action being of a procedural nature. Sections 111(1)(p) and (q) did not extend to allowing the withdrawal of a Notice of Discontinuance, at least in the circumstances of the present matter.

· the applicant cannot blame Mr Fenby. He had actual or ostensible authority to represent the applicant

· in the alternative, allowing leave to withdraw the Notice of Discontinuance would be unfair to the respondent who, in accepting an offer made for the applicant, having signed a record of the settlement and having received the Notice of Discontinuance, was entitled to regard the matter as concluded.

[13] In Kontogouris and Tradeflex Services Group Pty Ltd, I reached the following conclusion in respect of power to grant leave to an applicant to withdraw a Notice of Discontinuance:

"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)].

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.

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."

[14] For the same reasons, I am satisfied that power is available to grant leave to the applicant in the present matter to withdraw his Notice of Discontinuance.

[15] I am not persuaded that I should do so in the circumstances of this matter. I accept, from the applicant's evidence, that he was confused and felt some pressure to accept the advice of Mr Fenby. I am not able to discern from his evidence however, that any pressure brought on the applicant extended beyond the persistence of Mr Fenby in his advice to the applicant. The applicant's evidence is that he did not wish to sign the Notice of Discontinuance, he argued his position with Mr Fenby before and after doing so, and sought a meeting with Mr Shorten the following day. Yet he did not object when Mr Fenby put the offer to settle to Mr McKenzie, to be conveyed to the respondent. He allowed Mr McKenzie to put the offer to the respondent. There is no suggestion that he demurred from the agreement at the signing of the Report Back document. He signed the Notice of Discontinuance. There is no suggestion that the applicant misunderstood the purpose, or effect, of the settlement or the Notice of Discontinuance. In these circumstances, I am not satisfied that the Notice of Discontinuance was executed in error or under duress. I am not satisfied that leave should be granted to withdraw the Notice of Discontinuance in the circumstances of this matter.

[16] The applicant also relied on what was said to be erroneous advice from his representative as to the substance of his case [the Clark and Ringwood Private Hospital point]. It is difficult to see how the underlying premise of this proposition could be tested, without a substantive hearing of the application (and the likely consequences of threatened police action in the circumstances of this matter). However, it is not necessary to further explore that issue. Even assuming that the advice was erroneous and applying the principles of Clark and Ringwood Private Hospital, I am not satisfied that the applicant is blameless for the reasons set out in paragraph 13 above. The applicant was of the view that the advice was erroneous but acted on that advise nonetheless, allowing the offer to be put to the respondent, not demurring from the signing of the Report Back document, and signing the Notice of Discontinuance.

[17] In circumstances where I am not satisfied that the applicant executed the Notice of Discontinuance in error, I am not prepared to take the unusual step of granting leave to the applicant to withdraw his Notice of Discontinuance.

Printed by authority of the Commonwealth Government Printer