[2014] FWCFB 3582

FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.604 - Appeal of decisions

Qantas Airways Limited
v
David Lawless
(C2014/247)

VICE PRESIDENT HATCHER
SENIOR DEPUTY PRESIDENT HARRISON
COMMISSIONER ROBERTS

MELBOURNE, 12 JUNE 2014

Appeal against decision [2014] FWC 744 of Deputy President Bartel at Adelaide on 30 January 2014 in matter numbers U2013/10899 & U2013/11982.

Introduction

[1] On 26 June 2013 Mr David Lawless filed an application for an unfair dismissal remedy. Mr Lawless alleged in his application that he had been dismissed from his employment with Qantas Airways Limited (Qantas) on 11 June 2013. Qantas denied that it had dismissed Mr Lawless on that date, and provided advice to him to that effect on 4 July 2013. However, on 11 July 2013 Qantas did dismiss Mr Lawless effective from that date. Mr Lawless then filed a second application for an unfair dismissal remedy on 26 July 2013. Both applications currently remain on foot.

[2] Qantas subsequently applied to have both of Mr Lawless’s unfair dismissal remedy applications dismissed on the basis that they were barred by s.725 of the Fair Work Act 2009 (the Act). Section 725 forms part of a scheme of provisions set out in Part 6-1 of the Act which are intended to establish rules with respect to multiple actions about various matters. Subdivision B of Division 3 of the Part is concerned with “Applications and complaints relating to dismissals”. The Subdivision commences with s.725, which provides:

[3] Qantas contended that because Mr Lawless had filed a notice of dispute in the South Australian Workers Compensation Tribunal (WC Tribunal) under s.90 of the Workers Rehabilitation and Compensation Act 1986 (SA) (WRC Act) on 17 May 2013 (prior to the filing of the unfair dismissal applications), he had commenced multiple actions in relation to his dismissal with the result that ss.729 and 732 both applied. Sections 729 and 732 provide:

[4] Qantas contended that the notice of dispute under the WRC Act was an application or complaint to which s.732 applied (noting that there was no issue that the notice of dispute had not been withdrawn and had not failed for want of jurisdiction), and that therefore the later unfair dismissal applications (to which s.729 applied) were barred by s.725.

[5] In a decision issued on 30 January 2014 1 (Decision), Deputy President Bartel dismissed Qantas’s jurisdictional objection to Mr Lawless’s unfair dismissal remedy applications. Qantas has applied for permission to appeal, and appeals, against the Decision.

Factual background

[6] Mr Lawless commenced employment as a baggage handler with Qantas in December 1989. He suffered a series of injuries in the course of his employment which by June 2001 made it necessary for him to be provided with modified work duties. These duties were further substantially modified in 2007. Mr Lawless’s duties were re-assessed during the course of 2012, and ultimately the view was taken that Mr Lawless did not have the physical capacity to perform relevant roles within Qantas, and therefore that the focus of his rehabilitation program should change to suitable employment with a new employer. By letter dated 14 March 2013, Employers Mutual Limited (EML), acting as agent for the WorkCover Corporation of South Australia, informed Mr Lawless that a decision had been made for him to return to work with a new employer, on the basis he was unable to return to his pre-injury role as a baggage handler and there were no appropriate roles within Qantas within his physical or vocational capabilities. The letter further advised that the decision might be revisited if suitable employment with Qantas became available or if Mr Lawless’s work capacity improved such as to support a return to work with Qantas.

[7] On 5 April 2013 Mr Lawless lodged an initial notice of dispute in the WC Tribunal under s.90 of the WRC Act challenging the “decision” communicated to him in EML’s correspondence of 14 March 2013. The WC Tribunal gave this notice of dispute the matter number 1568/2013.

[8] On 8 May 2013 a revised Rehabilitation and Return to Work Plan (RRTW Plan) was approved. The RRTW Plan had as its objective a return to work with a different employer. The identified duration of the RRTW Plan was from 30 April 2013 to 30 July 2013. The RRTW Plan was prepared pursuant to s.28A of the WRC Act.

[9] At a meeting between representatives of Qantas and Mr Lawless on 14 May 2013, Mr Lawless was provided with two letters. The first, dated 14 May 2013, informed Mr Lawless that because he was unable to return to his pre-injury duties then or in the foreseeable future and because he had been unable to be redeployed, Qantas was considering terminating his employment on medical grounds. The letter gave him an opportunity to provide further information as to why his employment should not be terminated, with any such information having to be produced by 21 May 2013. Qantas ceased providing Mr Lawless with any employment duties from 14 May 2013.

[10] In the second letter, dated 10 May 2013, Qantas advised Mr Lawless of “our intention to terminate your employment”. Its stated purpose was to discharge Qantas’s obligation under s.58C of the WRC Act to provide 28 days’ notice of the proposed termination of employment. The letter stated that “... it is our intention to terminate your employment after the expiry of the 28 day notice period”.

[11] On 17 May 2013 Mr Lawless filed a second notice of dispute in the WC Tribunal under s.90 of the WRC Act. As earlier stated, Qantas relied upon this notice of dispute to found its jurisdictional objection to the unfair dismissal remedy application. The notice of dispute challenged the reasonableness of the RRTW Plan. The “Reason for the dispute” - essentially constituting the grounds for the application - was described in the following terms in the notice of dispute:

[12] This second notice of dispute was given the matter number 2276/2013.

[13] On 26 June 2013, as earlier stated, Mr Lawless filed his first unfair dismissal remedy application. On 11 July 2013, Qantas by a letter of that date informed Mr Lawless that he was dismissed “on medical grounds” effective from that date, and that he would be paid four weeks’ salary in lieu of notice.

[14] The WC Tribunal (constituted by Judge P D Hannon) conducted a hearing in relation to Mr Lawless’s two dispute notices on various dates in August and October 2013. Both the WorkCover Corporation by its agent EML and Qantas appeared at the hearing of the disputes. His Honour issued his judgment in the matters on 27 November 2013 2 (WC Judgment). The first notice of dispute lodged on 5 April 2013 (1568/2013) was dismissed on the basis that the decision it challenged was not reviewable under s.89A of the WRC Act.3 In relation to the second notice of dispute lodged on 17 May 2013 (2276/2013), a finding was recorded “that the provision containing the return to work objective in the RRTW Plan ... is unreasonable”.4 Judge Hannon made what he described as “obiter observations”5 to the effect that the consequence of his finding would be as follows:

[15] Qantas and the WorkCover Corporation have filed appeals against the WC Judgment. We were informed at the hearing of this appeal that a ground of appeal was that the determination made by Judge Hannon concerning the RRTW Plan was beyond jurisdiction because the RRTW Plan had expired long before the date of the WC Judgment. As at the date of this decision, those appeals had not yet been determined.

The Decision

[16] In the Decision, the Deputy President recited the factual background in a manner which was not challenged by Qantas. In her consideration of Qantas’s jurisdictional objection, the Deputy President firstly dealt with an argument advanced by Mr Lawless that, because at the time he lodged the notice of dispute of 17 May 2013 in the WC Tribunal, he was not yet for the purpose of s.725 a “person who has been dismissed”. The Deputy President rejected this argument:

[17] The Deputy President then considered whether the notice of dispute of 17 May 2013 was an application “in relation to the dismissal” such that s.732 of the Act applied. In that connection the Deputy President began by referring to the decision of the then Federal Magistrates Court (Lucev FM, as his Honour then was) in Birch v Wesco Electrics (1966) Pty Ltd 6 in which the Court considered the proper interpretation and application of the expression “in relation to the dismissal” as used in Subdivision B of Division 3 of Part 6-1 of the Act. The Deputy President then dealt with whether the notice of dispute of 17 May 2013 was an application in relation to Mr Lawless’s dismissal as follows:

[18] The Deputy President then stated her conclusions as follows:

Submissions

[19] Qantas submitted that the Deputy President erred in concluding that the notice of dispute of 17 May 2013 was not an application in relation to Mr Lawless’s dismissal, in that:

[20] Mr Lawless submitted that the Decision was correct and there was no arguable case of appellable error, for the following reasons:

Consideration

Permission to appeal

[21] This appeal raises a question of some significance and novelty, namely whether the making of an application by a person under a workers’ compensation statute for a remedy that does not involve reinstatement, re-employment or compensation in respect of a dismissal may nonetheless be an “application or complaint ... in relation to the dismissal” of the person for the purposes of s.732 with the result that the person is barred from subsequently making an unfair dismissal remedy application. We consider that, in the public interest, permission to appeal should be granted in order for this question to be determined at the Full Bench level.

“In relation to the dismissal”

[22] It is common ground that the critical issue in this appeal is whether the notice of dispute filed by Mr Lawless in the WC Tribunal on 17 May 2013 was an application or complaint in relation to his dismissal for the purposes of s.732 of the Act. That initially requires consideration to be given as to how the words “application or complaint ... in relation to the dismissal” as used in s.732(1)(a) and elsewhere in Subdivision B of Division 3 of Part 6-1 of the Act, read in their statutory context, should be construed.

[23] As earlier stated, Part 6-1 of the Act, of which s.732 forms a part, is entitled “Multiple Actions”, and establishes rules with respect to multiple actions about various matters. Division 3 is entitled “Preventing multiple actions”, which is indicative of the intended function of the provisions contained in that Division. Section 719 provides further assistance in ascertaining the purpose of the provisions in Division 3 as follows:

[24] Confirmation of the overall purpose of Part 6-1 is provided by the Explanatory Memorandum for the Fair Work Bill 2009 (from which assistance may be derived pursuant to s.15AB(1) of the Acts Interpretation Act 1901) as follows:

[25] Subdivision B is entitled “Applications and complaints relating to dismissal”. The scheme of provisions in the Subdivision seeks to achieve the purpose of Part 6-1 in relation to the specific instance of dismissal. Confirmation of that statutory intention can again be obtained from that part of the Explanatory Memorandum concerned with Subdvision B:

[26] It is evident therefore that the provisions of Subdivision B of Division 3 of Part 6-1 have the purpose of restricting a person with multiple remedies in relation to the person’s dismissal from applying for more than one available remedy. In this respect, we agree with the statement of Lucev FM in Birch that “The statutory purpose, put simply, is to limit an applicant to a single remedy”. 9

[27] The decision in Birch contains a very useful analysis of cases which have dealt with the meaning of the phrase “in relation to” or phrases to similar effect. 10 Those cases call attention to the importance of context and statutory purpose in identifying the degree of relationship or connection between two things such that they can be said to be “in relation to” each other. Two examples (cited in Birch) particularly emphasise this point. In HP Mercantile Pty Ltd v Commissioner of Taxation11 the Federal Court Full Court (Hill J, with whom Stone J and Allsop J, as he then was, agreed) said:

[28] In Woodside Energy Ltd v Commissioner of Taxation 12 the Federal Court (French J, as he then was) said:

[29] These two decisions support the conclusion stated in Birch that “the expression ‘in relation to’ gathers meaning from both the context in, and purpose for, which it appears...”. 13 Adjectives potentially applicable to the relationship requirement imported by the statutory phrase “in relation to” such as “direct”, “indirect”, “substantial” and “remote” are not of great utility in interpreting and applying the phrase unless they are connected to the context and the statutory purpose. For the purposes of Subdivision B, the sufficiency of the connection or relationship between a person’s application/complaint and his or her dismissal is therefore to be assessed by reference to the objective of limiting the person to a single remedy for the dismissal.

The notice of dispute and the relevant provisions of the WRC Act

[30] In considering whether the notice of dispute of 17 May 2013 was an application in relation to Mr Lawless’s dismissal, it is necessary to consider the terms of that application in the context of the relevant provisions of the WRC Act.

[31] Section 28A of the WRC Act empowers, and in some circumstances obliges, the WorkCover Corporation to establish a rehabilitation and return to work plan for injured workers. Subsections (1) and (2) of s.28A provide:

[32] Section 28A(6) provides that a plan made under the section is binding on the injured worker and his or her employer.

[33] Section 28B(1) provides that a worker or an employer may apply for the review of (relevantly) a provision of a rehabilitation and return to work plan as follows:

[34] Section 28B(2) then provides for the remedy available upon such a review:

[35] Section 90 of the WRC Act establishes the mechanism by which an application to the WC Tribunal may be made for review of a rehabilitation and return to work plan. It provides:

[36] There was no issue that the RRTW Plan was a “reviewable decision” for the purpose of s.90. 14 Once a notice of dispute is filed, Part 6A of the Act provides for the conciliation of the dispute15 and, if that is unsuccessful, for its judicial determination by the WC Tribunal.16

[37] Considered in its statutory context, the notice of dispute of 17 May 2013 is therefore able to be characterised as an application by Mr Lawless under ss.28B(1) and 90 of the WRC Act for review of certain provisions of the RRTW Plan on the ground that they were unreasonable. The remedy available on such a review under s.28B(2) was a modification of the RRTW Plan to the extent necessary to ensure that the plan did not impose unreasonable obligations on Mr Lawless. No remedy referable to dismissal, such as reinstatement, re-employment or compensation is to be found in the WRC Act. Nor is any jurisdiction conferred on the WC Tribunal with respect to the dismissal of employees at all.

[38] The terms of the notice of dispute, including its grounds, confirm that it challenges the RRTW Plan. No express mention is made of Mr Lawless’s dismissal by Qantas, which although foreshadowed had not yet occurred at the time the application was made. Paragraph 6 of the “Reason for the dispute” section of the notice makes reference to Mr Lawless seeking that the RRTW Plan be modified to require Qantas to employ him in suitable employment “pursuant to the contract of employment”, or in the alternative that it require Qantas to employ him in suitable employment “under a contract of employment”. The alternative claim in that respect may contemplate the cessation of the existing employment contract, thus requiring a new contract of employment. However, that claim was not pursued at the hearing 17, and in the passage from the WC Judgment earlier quoted, Judge Hannon rejected the proposition that an order requiring re-employment could be made on review of a rehabilitation and return to work plan under s.28B. Qantas did not submit that his Honour’s conclusion on that score was incorrect, and we respectfully agree with it.

[39] Paragraphs 3 and 4 of the “Reason for the dispute” section of the notice of dispute contend that Qantas had not complied with s.58B of the WRC Act, and that the RRTW Plan was contrary to s.58B. Section 58B(1) (which operates subject to certain exceptions specified in s.58(2)) provides:

[40] However, as Judge Hannon made clear in the WC Judgment, while the policy objective embodied in s.58B(1) was relevant in considering the reasonableness of the RRTW Plan, the question of Qantas’s compliance with s.58B(1) did not arise for consideration in a s.28B review:

[41] Again, Qantas did not submit that the above conclusion was incorrect, and we respectfully agree with it.

Conclusions

[42] Having regard to the above matters, we consider that the Deputy President was correct in determining that the notice of dispute of 17 May 2013 was not an application or complaint in relation to Mr Lawless’s dismissal, and accordingly that s.732 did not apply. The subject matter of the notice of dispute was the reasonableness of the RRTW Plan, and the remedy available in that connection was confined to the modification of the RRTW Plan to remove unreasonable obligations. The establishment of the RRTW Plan was a decision of the WorkCover Corporation, not of Qantas. The notice of dispute did not identify Mr Lawless’s dismissal as its subject matter, the dismissal had not yet occurred at the time the notice was lodged, and the notice could have proceeded to be heard and determined whether Mr Lawless had been dismissed or not.

[43] Mr Lawless’s dismissal formed part of the factual matrix in the matter by the time Mr Lawless’s notice of dispute was the subject of a hearing before the WC Tribunal. However, the WC Judgment does not indicate that the dismissal had any significance in Judge Hannon’s reasons for the conclusion that certain provisions of the RRTW Plan were unreasonable. Any connection between the notice of dispute and the dismissal was not sufficient to permit the notice to be characterised as being “in relation to the dismissal”, having regard to the statutory purpose of avoiding access to multiple remedies in relation to dismissals. To find to the contrary, in circumstances where Mr Lawless’s notice of dispute has been heard and determined in his favour but has not resulted in an outcome which in any identifiable way remedies his dismissal, would not achieve the statutory purpose of Subdivision B. Indeed, such an outcome would negative the statutory purpose, since it would deny Mr Lawless access to the only available dismissal remedy he has applied for.

[44] The position here is quite distinct from the cases of Birch, Ilardo and Du upon which Qantas relied. In each of those cases, the alternative application under consideration was made under legislation which authorised the grant of remedies in relation to dismissal, 18 so that, unlike here, there was properly speaking access being sought to multiple remedies for dismissal.

[45] The outcome may possibly have been different here if the WC Tribunal had, under the WRC Act or otherwise, jurisdiction to award a remedy requiring the re-employment of Mr Lawless as was originally sought in paragraph 6 of the “Reason for the dispute” section of his notice of dispute, although not pressed at the hearing. However, as earlier stated, it had no such jurisdiction. To the extent that a remedy of this nature was claimed by Mr Lawless in the notice of dispute, it was not a claim which could validly be made in a review application under s.28B of the WRC Act. We consider that Subdivision B of Division 3 of Part 6-1 of the Act is concerned with preventing access to multiple remedies in relation to dismissal for which the law actually provides, not with purported applications for remedies which do not exist at law.

[46] No error has been demonstrated in the Decision, and the appeal must therefore fail.

Orders

[47] We order as follows:

(1) Permission to appeal is granted.

(2) The appeal is dismissed.

140120_121417.jpeg

VICE PRESIDENT

Appearances:

S. Prince of counsel with H. Fairhall solicitor for Qantas Airways Limited

J. Warren of counsel with I. Milsom solicitor for David Lawless

Hearing details:

2014.

Sydney:

24 April.

 1   [2014] FWC 744

 2   [2013] SAWCT 40

 3   Ibid at [156]

 4   Ibid at [157]

 5   Ibid at [149]

 6   [2012] FMCA 5

 7   [2010] FWAFB 6473; 197 IR 397

 8   [2011] FWAFB 5225; 211 IR 382

 9   [2012] FMCA 5 at [75]

 10   Ibid at [66]-[74]

 11   [2005] FCAFC 126; 143 FCR 553 at [35]

 12   [2006] FCA 1303; 155 FCR 357 at [58]

 13   [2012] FMCA 5 at [72]

 14   See WRC Act s.89A(1)(b) and the accompanying statutory note 2.

 15   WRC Act, ss.92-92C

 16   WRC Act, ss.92D-94C

 17   [2013] SAWCT 40 at [151]

 18   Birch: see Equal Opportunities Act 1984 (WA), ss.11(2)(c), 35AC(2)(c), 35B(2)(c), 35P(2)(c), 37(2)(c), 54(2)(c),66B(2)(c), 66W(2)(c), 67B(2)(c), 127; Du: Equal Opportunities Act 1995 (Vic) (repealed), ss.14(b), 136; Ilardo: Transport Appeal Boards Act 1980 (NSW), ss.23, 24.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR551161>