[1] On 13 May 2010 Mr Randy Hammond (the Applicant) made an application pursuant to Section 365 of the Fair Work Act 2009 alleging contravention of Part 3-1 of the Act involving dismissal.

[2] The matter was originally allocated to Commissioner Foggo and listed for conference before her on 2 June 2010. ANZ Banking Group Limited (the Respondent) responded to the Application on 26 May 2010. That response included evidence that the Applicant was not the employer of Mr Hammond and that Mr Hammond elected to become an independent contractor for a six month duration but that when he failed to provide certain information required by ANZ for independent contractors he then became an employee of a labour hire provider. The contract with that labour hire provider was to provide services to ANZ for a temporary fixed term assignment. The position of ANZ was that the initial assignment ended on 29 January 2010 and that this was then extended to 31 March 2010. Mr Hammond was reminded on 24 March 2010 that his contract was coming to an end on 31 March 2010.

[3] The Applicant in response to the reply of the Respondent sought an adjournment of the 2 June 2010 conference and an interim decision as to whether or not the Applicant was an employee of the Respondent. Commissioner Foggo refused to do this. On June 2 Mr Hammond requested an adjournment due to ill health. On 6 August 2010 Fair Work Australia asked the Applicant if he still wished to proceed with the matter. The Applicant advised that he did wish to continue with the matter and the file was allocated to me due to Commissioner Foggo's retirement.

[4] The Applicant sought further adjournment of the matter which was opposed by the Respondent. I refused the application for further adjournment and a conference was held on 16 September 2010.

[5] A without prejudice offer was made during the conference and it was agreed that the Applicant would have seven days to accept or reject the offer. On 17 September 2010 the Applicant advised Fair Work Australia by email that he had decided to reject ANZ's settlement offer and also provided Fair Work Australia with a signed notice of discontinuance.

[6] On 15 February 2011 I received a request from Mr Hammond for me to issue a certificate to enable him to proceed with this matter in the Court.

[7] Mr Hammond says that the basis on which he made the decision to discontinue was that he was convinced that the Application had limited prospects of success because of the email produced in the conference on 16 September 2010 by ANZ that purported to demonstrate that his contract end date was in fact 31 March 2010. Mr Hammond now says that he believes this email was a draft and was never sent.

[8] I advised Mr Hammond that as a result of the notice of discontinuance I regarded the matter as resolved and it was therefore not possible to issue a certificate that "all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful".

[9] Mr Hammond initially sought that his request be kept confidential from the Respondent. I sought agreement from Mr Hammond that I write to the Respondent in certain terms. After some exchanges Mr Hammond agreed that I should request advice from ANZ as to its attitude to:

2. The request for the Commissioner to issue a certificate pursuant to Section 369 of the Act.

"having received advice from ANZ the Commissioner will determine whether or not to reopen the matter. Should the Commissioner determine to reopen the matter he will call a further conference of the parties or alternatively a hearing prior to making a decision as to whether or not to issue a certificate. Should the Commissioner determine not to reopen the matter he will issue a formal decision. Such a decision may be open to appeal."

[11] ANZ provided me with a comprehensive response on 14 March 2011. ANZ opposes any reopening of the matter and the issuance of a certificate pursuant to Section 369 of the Act. ANZ also vigorously denies that the email was a draft and was never sent. Furthermore, ANZ says that the email was only one of many indicators that the Applicant was on temporary assignment and was not an ongoing employee.

[12] It is clear that under earlier legislation the Tribunal had the power to re-open a discontinued matter. The principles were set out in Kontogouris v Tradeflex Services Group Pty Ltd AIRC, Melbourne, 23 March 2001. The principles were supported by the Full Bench of the AIRC in John Carl Fotzik and Australian Customs Services, Sydney, 4 September 2001.

[13] The provisions of the Fair Work Act 2009 continue the tradition that the Tribunal has wide discretion in respect to procedure (Section 589 and 591) and that the Tribunal must act in a manner consistent with equity, good conscience and the merits of the matter (Section 578).

[14] If there was evidence of fraud or abuse of process involved in the discontinuance of the proceedings then I believe it would be proper for me to reopen the proceedings. However, I am satisfied that Mr Hammond had a proper opportunity to consider his position prior to discontinuing the proceedings. I am satisfied that Mr Hammond knew that he had the opportunity to accept or reject an offer and was given time to consider it. I am satisfied that he knew that a notice of discontinuance would bring the matter to a conclusion.

[15] In the event that I refuse to or an unable to re-open this matter it is of course possible that the Applicant could make a further Application. Such an Application would of course be out of time. There is a possibility that the relevance or otherwise and the validity or otherwise of the allegations made by Mr Hammond concerning the email might be considered in determining whether or not there are exceptional circumstances justifying an extension of time.

[16] I cannot issue a certificate that "all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful" in a circumstance where the matter has been discontinued.

[17] The matter having been concluded it would only be in exceptional circumstances that I could have the power to reopen the matter. In all of the circumstances I have concluded it would be inappropriate for me to re-open this matter assuming that I have the discretion to do so. It would not be consistent with the principles of equity or a fair go all round. It would be unfair to the Respondent. For reasons discussed earlier it is not necessary in this case for me to reopen this matter to ensure that the Tribunal's processes do not cause an injustice. It is therefore also unnecessary for me to make a decision as to whether or not I do have the discretion to reopen a matter in these circumstances.

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