[1] This decision concerns an application made by Mr Aguilar for a conciliation conference in an application made by him under s.394 of the Fair Work Act 2009 (the Act). That application arose out of the termination of his employment by Qantas Airways Limited (Qantas). In fact the relief which is now sought by Mr Aguilar is to first set aside a notice of discontinuance filed by him and then to have a conference in his s.394 matter.

[2] Qantas opposed the application to set aside the notice of discontinuance. At the conclusion of a hearing I said that I was not persuaded to set the notice aside. These are my reasons for that decision.

[3] Qantas submits there is no power to set aside a notice of discontinuance. It acknowledges that under provisions of the previous Workplace Relations Act 1996 the Commission did set aside such notices by relying on s.111(1)(q) to correct or amend any error, defect or irregularity and s.111(1)(t) to generally give all such directions and do all such things as are necessary or expedient for the speedy and just hearing of a matter. The closest equivalent to those sections in the Act is s.586. It is in these terms:

"Correcting and amending applications and documents etc.

(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

(b) waive an irregularity in the form or manner in which an application is made to FWA."

[4] Qantas also submits that the power to set aside a notice of discontinuance was exercised in limited circumstances. An applicant needed to persuade the Commission that the notice had been filed as a result of duress, mistake or error.

[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.

[6] The relevant background to this decision is as follows:

(a) The Applicant's employment was terminated by Qantas on the grounds of serious misconduct on 24 February 2010. The misconduct was fighting in the workplace and engaging in abusive verbal altercations with another employee.

(b) The Applicant filed his s.394 unfair dismissal application on 4 March 2010. A conciliation conference was listed for 30 March 2010 (the notice of listing was sent to the parties on 11 March 2010).

(c) On 24 March 2010, Qantas filed and served on the Applicant a Form F3 being the Employer's Response to the unfair dismissal application. That response had attached to it a number of signed statements made by employees who worked with the Applicant documenting the Applicant's bullying and racial harassment behaviour in the workplace. It set out, in some detail, the investigation that had been undertaken by Qantas into an incident which had led to the Applicant's dismissal.

(d) On 29 March 2010, Qantas was notified by email from Fair Work Australia that the Applicant had wholly discontinued the s.394 application. A notice of discontinuance signed by the Applicant was attached to the email. As a consequence, the conciliation conference listed for 30 March 2010 was cancelled.

(e) On 19 April 2010 the Applicant sent Fair Work Australia a letter (it was dated 15 April) seeking that his "case be re-opened". On 11 May 2010, Qantas was notified by Fair Work Australia that the Applicant was seeking to re-open his s.394 application. The Applicant had not given any notification to Qantas about this. Also on 11 May, directions were issued for the Applicant to file and serve submissions and any witness statements and documentary material by Tuesday 18 May and for Qantas to do similarly by Friday 28 May.

(f) On 13 May 2010, the Applicant filed an application on a Form F1 seeking a relisting of his s.394 application for a conciliation conference. He indicated that he would be going overseas from 19 April to 6 May to visit his uncle who "has a couple of months to live". A document titled grounds of appeal was attached. I note this document was also attached to the originating s. 394 application filed on 4 March. A medical certificate from Dr Dzu Dinh Nguyen dated 12 May 2010 was also attached. It certified that the Applicant "has been suffering from Depression since 1 April 2010 and is on Medication at the present". A document described as a letter of support for the Applicant was also filed. It was signed by a number of persons presumably previous work colleagues of the Applicant

(g) On 19 May 2010 Dooley and Associates. Solicitors, filed a notice indicating they had commenced to act for the Applicant. On 21 May those solicitors sent a letter to Fair Work Australia acknowledging their client had not complied with the directions and indicating that he had been overseas for some time and an extension of time to file documentation was sought. As is apparent from this letter the Applicant did not comply with the directions which had issued on 11 May; Qantas did.

(h) The Applicant filed a statement on 31 May and sought to tender it in the hearing before me.

[7] I should indicate that I declined to allow the tender of the Applicant's witness statement dated 31 May. In doing so I noted that the Applicant was due to have returned from overseas on 6 May and that the directions did not issue until 11 May with the date for his compliance being 18 May. In my opinion that was adequate time for him to have done so. In this context I also noted that the first request for an extension of time for complying with the directions did not come in until 21 May, two days after the compliance date had already passed. The reason given by the solicitors for the extension of time was because their client had been overseas. In the circumstances this was not a persuasive reason. In any event much of the witness statement was not relevant to the considerations that arise in this matter. To the extent it gives any explanation for the circumstances surrounding the filing of the notice of discontinuance it adds little to what is already before me in the attachments to the Applicant's Form F1.

[8] Qantas submitted that the Applicant had not established that he executed the notice of discontinuance by duress, mistake or error. It noted that there is no explanation given by the Applicant as to why he did not ask for the conciliation to be adjourned instead of filing a notice of discontinuance. It submits that the finding I should make is the Applicant knew and understood the purpose and effect of discontinuing the proceedings. His doing so should be seen in the context of his receiving Qantas's response containing signed statements from other co-workers documenting the Applicant's unacceptable behaviour in the workplace.

[9] The principal reason relied upon by the Applicant for setting aside the notice of discontinuance was the stress he was under and his subsequent diagnosis of depression. The Applicant submitted that the period of time which had elapsed between the date of the notice of discontinuance and his seeking to have the s.394 matter re-opened was not significant. Additionally, he submitted that Qantas would not be prejudiced by the matter being opened.

[10] I have weighed against these submissions the fact that the medical certificate was completed on 12 May almost 6 weeks after the date the Applicant signed the notice of discontinuance and it certifies that the Applicant had been suffering from depression since 1 April. Contrary to the Applicant's submission about delay, in my opinion, the delay in seeking to enliven his.s394 was significant. Putting the best interpretation on it from the Applicant's point of view it seems that it was not until 19 April that he sent a letter to Fair Work Australia (it appears this was the letter dated 15 April 2010 which was attached to his Form F1) seeking to have his matter re-opened. By that time it was some 21 days since he had discontinued the s.394. And, rather than prosecute his application with some urgency, he indicated that he was due to and did go overseas.

[11] I have seriously considered all of the Applicant submissions about the circumstances in which he signed the notice of discontinuance but I prefer the submission of Qantas that it is more likely he did so having been confronted with the strength of the allegations that would be put against him.

[12] For these reasons the application to set aside the notice of discontinuance was refused.

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