Anees Koya v State of Victoria (Department of Education and Training) [2021] FWC 1411

[2021] FWC 1411 The attached document replaces the document previously issued with the above code on 19 March 2021. Missing paragraph number inserted. Associate to Commissioner Bissett Dated 22 March 2021 -- 1 of 9 -- -- 2 of 9 -- 1 Fair Work Act 2009 s.394—Unfair dismissal Anees Koya v State of Victoria (Department of Education and Training) (U2019/1077) COMMISSIONER BISSETT MELBOURNE, 19 MARCH 2021 Application for an unfair dismissal remedy. [1] On 4 February 2019 Mr Anees Koya (Applicant) made an application to the Fair Work Commission seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Koya was employed by the State of Victoria in the Department of Education and Training (Respondent). Mr Koya commenced employment in 2000 and was dismissed with effect from January 2019 for matters associated with poor performance. [2] Mr Koya’s application was subject to conciliation where it did not settle. Directions were issued and on 11 April 2019 the Applicant (through his representative) filed his submissions and evidence. On 9 May 2019 the Respondent filed its submissions and evidence. [3] On 10 May 2019 the Commission received an email form the Applicant in which he indicated that he wished to discontinue his application (although he phrased it as “withdrawing my appeal”). Following receipt of this Mr Koya was contacted by telephone by a Commission staff member and it was confirmed by him that he did wish to discontinue his application. [4] The hearing listed was cancelled and the file subsequently closed. RECENT DEVELOPMENTS [5] On 18 December 2020 the Commission received an email from Mr Koya that said: I wish to request a reinstatement of proceedings for unfair dismissal claim. The reasons why I felt I had to withdraw my claim in 2019 are as follows: The lawyer from the education union had advised me that my claim would not succeed because I was unable to return to work if that decision was made, that is, to grant me reinstatement. He then informed me that he would not represent me in the proceedings. [2021] FWC 1411 DECISION -- 3 of 9 -- [2021] FWC 1411 2 I felt I had no option but to withdraw my claim because of his advice and his action of ceasing to represent me. Since that time, I have learnt that there are in fact other options available to me that I could present if the proceedings were to go forward. I have been unable to work since some time before my employment with the Department of Education was terminated. I had informed the department of my inability to work by forwarding medical certificates to them prior to my dismissal in January 2019. I have been unable to work since then, and I have medical certificates stating this during the interim period. I had sustained the injury which prevented my working at my place of employment at Hampton Park Secondary College during the time of my employment with the Department of Education. This has been accepted by the doctors that have examined me as part of my WorkCover claim. I wish for my record to reflect a resignation rather than dismissal in order to afford me an opportunity to regain some employment in teaching in a reduced capacity. I feel I have a very strong case for unfair dismissal and I now wish to proceed with my claim if my request is accepted. Yours sincerely Anees Koya [6] Following receipt of the request of Mr Koya, on 18 December 2020 my chambers sent a letter to Mr Koya and alerted him to the difficulties in seeking to have his proceedings reinstated in circumstances where he had discontinued his application. Mr Koya was alerted to the content of the decision in Narayan v MW Engineers Pty Ltd1(Narayan) and the decision in AB v Tabcorp Holdings Limited2 (Tabcorp) which dealt with the power of the Commission to set aside a notice of discontinuance. [7] On 28 December 2020 Mr Koya responded to the Commission’s letter and said: In regard to my fair work application, I would like to pursue this matter further: In your letter to me it states the commission may have the power to set aside a notice of discontinuance if it was done under duress or by mistake. My decision in 2019 to withdraw my claim was both as a result of duress as well as a mistake. In regard to duress, I would say that I had no other option at the time of the advice given to me by the Victorian Education Union. 1 [2013] FWCFB 2530. 2 [2015] FWCFB 523. -- 4 of 9 -- [2021] FWC 1411 3 I was suffering due to an injury, and could not work. The Department of Education would have been aware of this because I had made a WorkCover claim because of this injury. It was my mistake to discontinue my claim because at the time, I believed I had no other option. My reason for wishing to have my dismissal changed to a resignation is to allow me possibility at some stage, that I may regain some form of employment with the department of education or in an independant [sic] school in a reduced capacity if I was able to regain my teacher registration. Thank you Anees Koya [8] As a result of that correspondence from Mr Koya I issued Directions to Mr Koya and the Respondent to file with the Commission and serve on the other party any submissions and evidence as to why the Commission should allow the original application for unfair dismissal to be heard in circumstances where Mr Koya had discontinued the matter. [9] In accordance with the Directions (and following an extension of time request) Mr Koya filed submissions on 19 February 2021, the Respondent on 2 March 2021. [10] On 3 March 2020 my chambers wrote to both parties: The Commissioner notes that Mr Koya has failed to address the specifics of the relevant authorities highlighted in her statement and directions of Narayan v MW Engineers Pty Ltd [2013] FWCFB 2530 and AB v Tabcorp [2015] FWCFB 523. Given the detail contained in the submissions of the State of Victoria the Commissioner considers it appropriate to give Mr Koya an opportunity to provide a response to that submission. Mr Koya will have until 4.00pm Wednesday 10 March 2020 to provide any submissions he wishes to make in reply to the submissions of the State of Victoria. [11] Mr Koya filed submissions in accordance with this correspondence on 9 March 2020. [12] Both Mr Koya and the Respondent indicated that they did not wish to be further heard on the matter and were content for the Commission to determine the application of Mr Koya on the material filed. SUBMISSIONS Mr Koya [13] Mr Koya was represented by the Australian Education Union (AEU) in making his application for unfair dismissal.3 Mr Koya said that the lawyer for the AEU advised him that his claim would not succeed because his medical condition prevented him working as a 3 The AEU filed a notice of representative ceasing to act (Form F54) on 9 May 2019. -- 5 of 9 -- [2021] FWC 1411 4 teacher and, therefore, even if he was successful in his unfair dismissal application he could not be reinstated to his position as a teacher. Mr Koya said that, since that time, he has discovered other options available to him that he “could present if proceedings were to go forward.” [14] Mr Koya said that when the AEU said it could no longer represent him he felt he had no other option but to discontinue proceedings. [15] Mr Koya said he was unable to work for some time prior to the termination of his employment (for which he provided medical certificates) and that he has been unable to work since then (presumably for medical reasons). [16] Mr Koya said that he has discovered recently that his registration with the Victorian Institute of Teachers (VIT) could not be approved if he had been dismissed from his employment. He said that, at the time of his dismissal, he had refused the option of resigning as he was not aware that it would affect VIT registration. Mr Koya cannot get employment as a teacher now as he cannot gain VIT registration. [17] Mr Koya said that the Commission should reinstate proceedings as he discontinued his application as he was “under anxiety and stress due to [his] medical condition.” He also said the matters should be reinstated as he was “acting under duress” as he understood his application would fail as he “was unable to work.” [18] Mr Koya wished to have his proceedings reinstated so that he could tender his resignation and not have the end of his employment recorded as a dismissal. This would allow him to seek employment as a teacher. State of Victoria [19] The Respondent provided a brief history of the application:  on 11 April 2019 the Applicant filed his evidence and submissions in support of his application.  a mention of the application was held on 12 April 2019 and on 24 April 2019, in accordance with the outcomes of the mention, the AEU, for Mr Koya, filed “Particulars of Loss”.  On 2 May 2019 the Respondent sought to clarify matters raised in the Particulars of Loss and also sought confirmation of Mr Koya’s registration under Part 2.6 of the ETR Act (with the VIT). The Respondent indicated that its enquiries suggested the Applicant was not registered. As such it would be unlawful for the Respondent to employ Mr Koya as a teacher. If this was the case it raised further issues as to the actual loss suffered by Mr Koya.  On 9 May 2019 the AEU filed a notice indicating that it ceased to act for Mr Koya. That day, in accordance with the Directions of the Commission, the Respondent filed its evidence and submissions.  On 9 May 2019 the Applicant emailed the Respondent to advise that the AEU had ceased to act for him, he would be seeking an adjournment of the matter and that he would provide details of his new representative as soon as possible.  On 9 May 2019 the Respondent wrote to Mr Koya and advised it would oppose an adjournment and the reasons why it would do so. -- 6 of 9 -- [2021] FWC 1411 5 [20] On 10 May 2019 Mr Koya emailed the Commission and copied the Respondent correspondence in which he said that he would be “withdrawing” his “appeal”. On receipt of this the Respondent wrote to Mr Koya to seek clarification and advised that if he was discontinuing his application he should file a notice of discontinuance (Form F50). Mr Koya replied that he had contacted an Associate at the Commission and had confirmed that he had withdrawn his application. [21] A cancellation of the Notice of Listing of the matter was issued by the Commission later that day. [22] The Respondent said that, based on the authority in Narayan, the Commission does not have the power to grant the application to set aside the notice of discontinuance and no cogent reason has been given to depart from that authority. [23] The Respondent further said that it is well settled that s.586 of the FW Act provides power to correct or amend an application to waive any irregularity in the application. It is not a power to set aside an application and nor does it provide power to set aside a notice of discontinuance. [24] The Respondent submitted that, even if the Commission could set aside a notice of discontinuance where such notice is filed by mistake or under duress (which it does not concede) the discontinuance was not done under duress or by mistake but was a well informed and intentional act of Mr Koya. [25] The Respondent submitted that it is open to Mr Koya to file a further application with the Commission although such an application will be subject to a determination as to whether an extension of time should be granted for the application. CONSIDERATION [26] On 10 May 2019 the Commission received an email from Mr Koya in which he said: To whom it may concern. Re: Koya vs Department of Education I wish to advise that in the above matter I am withdrawing my appeal. Please note the attachment below regarding this matter as well. Anees Koya [27] The Commission records indicate that Mr Koya was contacted by telephone by a Commission staff member on that day and it was confirmed by him that he did wish to discontinue his application. The Commission records indicate that Mr Koya was advised during that telephone call that it “would be extremely difficult to reopen once discontinued.” The record indicates that Mr Koya “said he understood.” -- 7 of 9 -- [2021] FWC 1411 6 [28] Mr Koya does not dispute the email in which he advised the Commission that he was “withdrawing” his “appeal” nor the subsequent telephone call with the Commission in which he confirmed the discontinuance of the application. I am therefore satisfied that Mr Koya did discontinue his application. He did so in writing in compliance with Fair Work Commission Rules 2013 r.10(b) and confirmed that this was his intention when contacted by telephone. [29] In order to grant the Applicant the relief he seeks the Commission would need to set aside the discontinuance of the unfair dismissal application made by Mr Koya so that his 2019 application for relief from unfair dismissal could be heard. [30] The FW Act does not provide a general power to the Commission to set aside or revoke a notice of discontinuance. It is well established that s.586 of the FW Act does not provide such power and Mr Koya does not suggest that some other section of the FW Act provides such power. [31] This matter was considered in Narayan where the Full Bench of the Commission said: [6] As to the first issue, s.586 provides a power to correct or amend an application, or to waive an irregularity in the form or manner in which an application is made. It is not a power to revoke or set aside an application. Once filed a notice of discontinuance is self executing and it brings the application to an end.4 [32] Whilst the Commission does not have power to set aside a notice of discontinuance, a person who has filed a notice of discontinuance may seek to have it set aside if it is filed by mistake or under duress. However the Commission does not have the jurisdiction to consider such an application – rather an application would need to be made to the courts. [33] In Tabcorp the Full Bench said: [11] 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… [34] The decisions in both Narayan and Tabcorp recognise that, having discontinued an application, a person is not precluded from making a fresh application although, if made outside the statutory time limit for making such an application, an extension of time would need to be sought.5 [35] Mr Koya has made no submissions to the Commission in relation to the effect of the decisions in both Narayan and Tabcorp even though these were both brought to his attention in correspondence to him on 18 December 2020 and again when he was invited by the Commission to provide reply submissions on 3 March 2020. 4 Tomlinson v Leveda Inc (1996) 65 IR 178 at [180]. 5 Narayan at [15]-[30], Tabcorp at [12]. -- 8 of 9 -- [2021] FWC 1411 7 [36] I am satisfied that, on the basis of the authorities cited above, I am precluded from setting aside the notice of discontinuance filed by Mr Koya. Mr Koya has not provided any basis – save that he says he discontinued by mistake or under duress – by which I could otherwise do so. [37] For these reasons I do not need to determine if Mr Koya discontinued his application under duress or by mistake – although, on the slim materials provided by him I do not consider he has made such a case. I would observe however that, should Mr Koya consider that he did discontinue his application under duress or by mistake and could he prove such, this does not automatically void the notice of discontinuance filed but rather just makes it voidable (in a court).6 [38] The application by Mr Koya to have his unfair dismissal application heard is therefore dismissed. [39] There is no obvious impediment to Mr Koya making a further application for relief from unfair dismissal. In doing so, however, he would need to satisfy the Commission that exceptional circumstances exist such that an extension of time (of close to 2 years) should be granted. As was observed in Tabcorp, in “deciding whether to extend the time for the filing of such an application it would be open to the Commission to consider the circumstances surrounding the filing of the earlier notice of discontinuance, including whether it was filed by mistake or under duress.”7 [40] An order8 reflecting this decision will be issued in conjunction with this decision. COMMISSIONER Final written submissions: Applicant – 9 March 2021 Respondent – 2 March 2021 Printed by authority of the Commonwealth Government Printer <PR727808> 6 See Chapman v Ignis Labs Pty Ltd [2020] FWCFB 3849 at [29]. 7 Tabcorp at [12]. 8 PR727820. -- 9 of 9 --