In the recent Fair Work Commission matter of Sergio Texeira v ADADN Group  FWC 3147 (17 June 2020) it was found that the Fair Work Commission may not have the power to revoke or set aside a notice of discontinuance filed by the Applicant in an exchange for an agreement that was neither binding or secure.
Mr Texeira (‘the Applicant’) lodged an unfair dismissal application on 6 January 2020 against his former employer ADADN Group (the Respondent) alleging that he had been unfairly dismissed under section 394 of the Fair Work Act 2009 (Cth).
On 13 February 2020, the Applicant employee sent an email to the Fair Work Commission advising that he wished to withdraw his unfair dismissal application as he had spoken with “Adcon group and we have come to an agreement”. Consistent with that request, the Commission closed the file.
On 10 March 2020, the CFMMEU issued correspondence to the Fair Work Commission requesting that the Applicant’s unfair dismissal proceedings be reinstated.
Decision by Fair Work Commission
The Fair Work Commission considered the Full Bench decision in Chandra Gupta Narayan v MW Engineers Pty Ltd  FWCFB 2530 (‘Narayan’) about whether section 586 of the Fair Work Act 2009 (Cth) provides the Fair Work Commission with the power to grant an application to set aside a notice of discontinuance.
The Full Bench decision in Narayan provides that:
- Once finalised, a Notice of Discontinuance is self-executing and brings the proceedings to an end.
- Neither s.586 nor s.578(b) of the Act empower the Commission to determine an application to set aside a Notice of Discontinuance.
- However, the Commission may have a general law power to treat a Notice of Discontinuance as having no effect where the notice was filed by mistake or under duress.
The Fair Work Commission determined that “any such application would have to be made to a court – for a declaration that the notice was a nullity”.
In short, the employee was not able to reopen their case.
If you intend to file a notice of discontinuance with the Fair Work Commission to the settle your matter, you must ensure that any agreement with the respondent is subject to a binding Deed of Release.
A Deed of Release is a legal document, also known as a deed of settlement, used to formalise an agreement between two or more parties involved in a dispute.
A Deed of Release is the most appropriate document to formalise an agreement between an Applicant and Respondent in an Fair Work Commission proceeding. Without a binding agreement, the other party may walk away from your deal, and you may not be able to reopen your case.
Get in touch
If you are making a claim for unfair dismissal and want to enter into a settlement with your employer, then make sure you put in place a legally binding Deed of Release/Settlement before discontinuing your claim. Call us on (02) 9199 8597 to assist you get this key part of the process right.
If you would rather get in contact through email, send your question through to Tyler at email@example.com.