[2017] FWCFB 500
The attached document replaces the document previously issued with the above code on 23 January 2017
In paragraph 14, foot note 7 has been amended to [2014] FWC 1904.
Price code has been amended to Price code C.
Associate to Senior Deputy President Drake
Dated: 24 January 2017
| [2017] FWCFB 500 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
SENIOR DEPUTY PRESIDENT DRAKE |
SYDNEY, 23 JANUARY 2017 |
Appeal against decision [2016] FWC 4989 and order [PR583263] of Deputy President Kovacic at Melbourne on 26 July 2016 in matter number C2016/264 – appeal dismissed.
[1] On 28 September 2016, a differently constituted Full Bench of the Fair Work Commission (the Commission) granted permission to appeal against the Decision 1 and Order2 made by Deputy President Kovacic dismissing Ms Hazledine’s general protections application against Mr Wakerley and Mr Giddings.3
The role of the Commission in s.365 proceedings
[2] At the hearing of the appeal on 10 November 2016, an issue arose as to whether the Commission is empowered to determine whether s.725 of the Fair Work Act 2009 (Cth) (the Act) operates as a bar to a general protections application on the basis of a contention that both the general protections application and another application or complaint of the kind referred to in any one of sections 726 to 732 of the Act were made “in relation to the dismissal” of the applicant. The parties filed additional written submissions in relation to this issue following the hearing of the appeal.
[3] Both parties submit that Deputy President Kovacic was empowered to decide this question. We agree, for the reasons set out below.
Hewitt v Topero
[4] In Hewitt v Topero Nominees Pty Ltd T/A Michaels Camera Video Digital 4 (Topero), a Full Bench of the Commission examined the content and structure of the relevant provisions of the Act in determining whether the Commission had the requisite jurisdiction to effectively dismiss a s.365 application on the basis of a finding that the applicant was not “dismissed” from their employment. The Full Bench reasoned, in part, as follows:
[23] The content and structure of the Subdivision tells against the proposition that s.365 is to be read as imposing jurisdictional pre-conditions beyond the mere filing of an application alleging dismissal in contravention of Part 3-1. The Subdivision does not contemplate that the Commission would engage in any sort of determinative process in dealing with a s.365 application…
…
[32] As s.595(3) makes clear, express authorisation under a provision of the Act is required before the Commission is empowered to arbitrate a dispute, with arbitration taken to include the making of any orders considered appropriate. There is no such express authorisation in the Subdivision. In these circumstances it is difficult to avoid the conclusion that a process of determining whether or not the appellant was dismissed would involve an exercise very akin to an arbitration and s.595(3) tells against any legislative intent that such a determination would be made by the Commission.
…
[35] A third contextual consideration is also relevant. Except in relation to an extension of time application, there is nothing in the Subdivision which contemplates the receipt of evidence by the Commission or the making of a determination requiring findings of fact…
…
[38] As we have noted, s.366 provides an exception to the general proposition that the Subdivision does not confer any determinative power upon the Commission. But the express power in s.366(2), to extend the time within which an application must be made, serves to reinforce the point that where the legislature intended to confer a determinative power it did so expressly. Absent an express provision there is no legislative intent to confer a determinative power…
[5] The ratio of Topero is found at [50], where the Full Bench held:
[50] For the reasons given we do not accept that the Commission needs to be satisfied that the applicant has been ‘dismissed’ from their employment before holding a s.368 conference. It is sufficient that the Commission has before it an application that on its face alleges a dismissal in contravention of Part 3-1.
[6] It is relevant to note that Topero was decided prior to the 1 January 2014 amendments to the Act, which provided for consent arbitration by the Commission of s.365 applications. At the time Topero was decided, the Commission had no power to arbitrate s.365 applications.
Application of Topero to s.725
[7] Section 725 of the Act is part of Subdivision B of Division 3 (Preventing Multiple Actions) of Part 6-1 of the Act. It provides as follows:
“A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.”
[8] The statutory purpose of section 725 of the Act is to limit an applicant to a single remedy. 5
[9] Sections 726 to 732 of the Act relate to a range of different types of applications and complaints. Relevantly for the purpose of Ms Hazledine’s case:
[10] There is no dispute that Ms Hazledine lodged a complaint with the Australian Human Rights Commission (AHRC) against her former employer, Arthur J Gallagher & Co. (Aus) Limited (AJG) in relation to her dismissal, with the result that s.732 applies. There is also no dispute that Ms Hazledine subsequently made an application to the Commission under s.365 against Mr Wakerley and Mr Giddings. If that application relates to Ms Hazledine’s dismissal, there is no dispute that s.727 applies.
[11] A general protections application involving a dismissal must be made under s.365 of the Act. If such an application is made under s.365, the Commission must conduct a conference in accordance with s.368 of the Act. Put another way, the jurisdiction of the Commission to conduct a conference under s.368 of the Act is conditional on an application being made under s.365 of the Act.
[12] The expression “must not make an application” in s.725 of the Act imposes a prohibition on an applicant making a general protections application if they have already made an application or complaint of a kind to which one of ss.726-732 of the Act apply. 6 It follows that if an applicant is prohibited by s.725 from making a general protections application under s.365 of the Act, the Commission has no jurisdiction to conduct a conference in accordance with s.368 of the Act.
[13] Accordingly, the content, structure and purpose of Subdivision B of Division 3 of Part 6-1 of the Act, read together with ss.365 and 368, support a conclusion that the Commission is empowered by s.725 to determine whether the general protections application and the relevant application or complaint under ss.726 to 732 relate to the dismissal of the applicant.
[14] Further, we agree with the following analysis by Deputy President Gostencnik in Alex v Costco Wholesale Australia 7 (at [11]) in relation to the distinction between a jurisdictional challenge of the kind under consideration in Topero and a challenge under s.725 to the effect that a particular application is statute barred:
“…Here we are not concerned with whether any of the constituent elements of a cause of action under Part 3–1 of the Act are established. Rather we are concerned with whether an application under s. 365 of the Act may be made to the Commission given the prohibition in s. 725. That question goes to the jurisdiction of the Commission to deal with this application under s. 365. It does not go to any question that will determine any legal rights that the Applicant might have under Part 3 – 1 of the Act...”
[15] In addition, the task of determining whether an application or complaint of the kind referred to in ss.726 to 732 is “in relation to the dismissal” would, unlike the situation under consideration in Topero, not require the making of a determination requiring findings of fact. The issue under s.725 is one of the proper characterisation or classification of an application or complaint.
[16] Finally on this issue, our conclusion that the Commission is authorised and empowered to decide whether a general protections application is statute barred under s.725 of the Act is supported, to some extent, by a recent decision of a Full Bench of the Commission in Storey v Aristocrat Leisure Limited t/a Aristocrat Technologies Australia, 8 in which it was held (at [22]) that one of the grounds on which permission to appeal should be refused was because Mr Storey’s general protections dismissal dispute application was prohibited by s.725 of the Act.
Was Ms Hazledine’s general protections application made in relation to her dismissal?
[17] Ms Hazeldine was employed by AJG from 22 October 2012 until her dismissal on 21 January 2016. Prior to the termination of her employment, Ms Hazledine had asserted, through her lawyers, that AJG’s Human Resources Manager, Mr Giddings, and her immediate manager, Mr Wakerley, and her employer, AJG, had breached various statutory provisions in relation to her ongoing employment.
[18] Following the termination of her employment, Ms Hazledine lodged a complaint with the AHRC against AJG, in relation to her dismissal, and a general protections application against Mr Wakerley and Mr Giddings, in relation to alleged breaches by them of sections 362 and 550 of the Act.
[19] In her AHRC complaint, Ms Hazledine alleges that AJG has contravened the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth). The AHRC complaint lodged by Ms Hazeldine seeks compensatory damages and orders for reform at AJG in the areas of human rights and employment.
[20] In her general protections proceedings, Ms Hazledine’s allegations against Mr Wakerley and Mr Giddings relate, in part, to events that took place well before Ms Hazledine’s dismissal and, in other parts, to the role of Mr Wakerley and Mr Giddings in the decision by AJG to terminate her employment. In those proceedings Ms Hazeldine seeks compensation from, and civil penalty orders against, Mr Wakerley and Mr Giddings.
[21] AJG is not a party to Ms Hazledine’s general protections application. Neither Mr Wakerley nor Mr Giddings is a party to the AHRC complaint.
[22] The Deputy President concluded that Ms Hazledine’s general protections application was (a) made after her AHRC complaint had been made and (b) in relation to her dismissal, with the result that s.725 of the Act operated as a bar to her general protections application against Mr Wakerley and Mr Giddings. 9
[23] Ms Hazledine does not contest the Deputy President’s finding that her general protections application was made after her AHRC complaint had been made, but she does challenge the Deputy President’s conclusion that her general protections application was in relation to her dismissal.
Grounds of Appeal
[24] Ms Hazledine relies on five grounds of appeal.
Ground 1
[25] Ms Hazledine contends that the decision of the Deputy President is contrary to the statutory context and purpose of s.725 of the Act, being to prevent multiple actions against an employer in relation to a person’s dismissal.
[26] It is submitted by Ms Hazledine that the purpose of subdivision B of Division 3 of Part 6-1, in which s.725 appears, is to limit persons who have been dismissed from employment to making only one application or complaint in relation to their dismissal. The purpose of the subdivision is not, so Ms Hazledine submits, to restrict persons who find themselves dismissed from their employment to bringing only one claim of any kind. The qualifying phrase “in relation to dismissal” is used to confine the restriction imposed by the subsection.
[27] Ms Hazledine submits that the subdivision is intended to prevent “double dipping” in the sense of doing the same thing twice, that is, pursuing two remedies in relation to the same dismissal. She further submits that the anti-double dipping provisions are not intended to trammel over the legal avenues of employees any further than that.
Ground 2
[28] Ms Hazledine contends that the Deputy President applied an incorrect legal test to determine the degree of connection and what was required by the phrase “in relation to dismissal” in reaching his conclusion on the jurisdictional objection.
[29] Ms Hazledine submits that the Deputy President fell into error in substituting an assessment of the similarities and differences between the two applications for the question which the Deputy President was required to determine which was: could the general protections application filed by Ms Hazledine be properly characterised as one “in relation to dismissal” for the purposes of s.725 of the Act.
Ground three
[30] Ms Hazledine submits that the Deputy President failed to have any regard, or sufficient regard, to a factor of direct relevance to the application of s.725 of the Act, being the fact of the civil penalty remedies sought by Ms Hazledine in her general protections application (which were not, and could not be, sought by Ms Hazledine in her complaint to the AHRC).
[31] Ms Hazledine points to the fact that the civil penalties which can be imposed for contraventions of ss.362 and 550 of the Act are of a different character and serve a different purpose from the orders available to an applicant under s.46PO of the AHRC Act. In particular, the civil penalties available under the Act are protective in promoting the public interest in compliance with the obligations which they attach. Civil penalties do not necessarily benefit the person who has sued for them, and are assessed by reference to the blameworthiness of the offender in the particular case, rather than the loss caused to the applicant. The primary function of civil penalties is to punish and deter, not compensate. These civil remedies are unique to the Act and are not available to an applicant under the AHRC Act.
[32] In contrast, Ms Hazledine submits that the reform orders available under s.46PO of the AHRC Act are unique to it and not available under the Act. Section 46PO(4)(b) of the AHRC Act allows the Court, on being satisfied that there has been unlawful discrimination by the respondent, to make orders requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant. Ms Hazledine contends that such orders may be particularly useful and appropriate where the unlawful discrimination arises from systemic practices within the employer’s business which extend beyond matters affecting a single applicant.
[33] Ms Hazledine submits that it would be wrong to interpret the scope of the restriction imposed by s.725 of the Act so widely that an employee who seeks a civil penalty against a manager is precluded from making a complaint against his or her employer to the AHRC in relation to his or her dismissal, or that such an employee who makes a complaint against his or her employer regarding his or her dismissal to the AHRC is similarly precluded from seeking civil penalties against managers. Such an infringement on the legal rights properly available to employees would extend, so it is submitted by Ms Hazledine, the restriction imposed by the anti-double dipping provisions far beyond what can be justified by their purpose.
Ground 4
[34] It is contended by Ms Hazledine that the Deputy President failed to answer Ms Hazledine’s fundamental submission, being, how could her general protections application be “in relation to” her dismissal when the respondents to the general protections application did not employer her, and thus could never have dismissed her.
Ground 5
[35] Ms Hazledine contends that the Deputy President failed to have any regard to the definition of “dismissal” embodied in s.386 of the Act, which dictates that the essential feature of any “dismissal” is active conduct on the part of an employer to bring employment to an end.
[36] In support of grounds four and five, Ms Hazledine submits that s.386 of the Act gives meaning to the term “dismissed” by listing circumstances in which a person will be considered to have been “dismissed”, and the circumstances where, although the person’s employment may have come to an end, the person will not be considered to have been “dismissed”. According to s.386, Ms Hazledine contends that the essential feature which distinguishes these two sets of circumstances is the presence of active conduct on the part of the employer which brought the employment to an end. It follows, so it is submitted, from the manner in which dismissal is defined in the Act that, to fit the description “in relation to the dismissal”, the subject matter of the nexus required by the phrase “in relation to the dismissal” must be the active conduct on the part of the employer which brought the employment to an end.
[37] Ms Hazledine submits that where, as is the case in her general protections application, the application is not brought against the employer, and the employer is not a party to the application, this essential feature is necessarily absent. That is, the anchor point for the “in relation to” nexus is missing.
[38] The facts which have given rise to Ms Hazledine’s general protections application concern the conduct of Mr Giddings and Mr Wakerley in their capacity as Ms Hazledine’s immediate manager and human resources officer during the course of her employment. They did not employ Ms Hazledine. As such, they could not dismiss her. It is Ms Hazledine’s submission that, in these circumstances, the general protections application filed by her could not be properly characterised as “in relation to the dismissal”.
Consideration
Ground 1
[39] The statutory purpose of s.725 of the Act is evident from the Explanatory Memorandum to the Fair Work Bill 2008. It is to prevent an applicant from “double dipping” when he or she has multiple potential statutory remedies available relating to a dismissal from employment. We reject Ms Hazledine’s contention that the purpose of s.725 of the Act is to limit multiple actions “against an employer”. So much is clear from the following parts of the Explanatory Memorandum:
“This Part deals with cases where there may be more than one remedy available for the same conduct or circumstances. It ensures that people have access to an appropriate remedy but also ensures that they are not entitled to more than one remedy in such cases.
This Subdivision is intended to prevent a person ‘double dipping’ when they have multiple potential remedies relating to a dismissal from employment by seeking to limit a person to a single remedy…” [emphasis added]
[40] The Deputy President referred to this statutory purpose in his Decision (at [30]) when setting out observations made by Lucev FM (as his Honour then was) in Birch v Wesco Electrics (1996) Pty Ltd 10 (Birch). In Birch, Lucev FM emphasised (at [63]) the personal nature of the prohibition imposed by s.725 of the Act; it acts upon the applicant, not the employer.11
[41] We are satisfied that the Deputy President applied the correct statutory purpose to s.725 of the Act when deciding that Ms Hazledine’s general protections application was barred by the operation of subdivision B of Division 3 of Part 6-1 of the Act. Accordingly, we reject ground 1 of Ms Hazledine’s Notice of Appeal.
Ground 2
[42] The task with which the Deputy President was faced was to properly characterise Ms Hazledine’s general protections application, in order to determine whether it was “in relation to” her dismissal within the meaning of s.725 of the Act. In undertaking that task, the Deputy President set out the background to Ms Hazledine’s AHRC complaint and her general protections application. The Deputy President then went on (at [11]-[15] and [28]-[39]) to consider the various arguments raised by each party, including Ms Hazledine’s contentions that her general protections application was not one in relation to her dismissal, because (a) it was not brought against her employer and (b) her causes of action against Mr Wakerley and Mr Giddings were different to her cause of action against AJG. In that context, the Deputy President assessed some of the similarities and differences between the two applications, including (at [33]) the similarities between the remedies sought by Ms Hazledine in each application.
[43] We reject the contention that the Deputy President applied an incorrect legal test in connection with the phrase “in relation to the dismissal”. The Deputy President set out the proper test at paragraphs [30] to [31] of the Decision and then applied that test in reaching his conclusion that Ms Hazledine’s general protections application was barred by the operation of s.725 of the Act. In particular, the Deputy President considered whether there was a relationship, other than a tenuous or remote relationship, between Ms Hazledine’s dismissal and her general protections application. 12 It is not surprising that the Deputy President concluded there was such a relationship in circumstances where Ms Hazledine contends in her general protections application that Mr Giddings and Mr Wakerely contravened s.362 and/or s.550 of the Act in connection with their involvement in the decision to dismiss Ms Hazledine.13
[44] It is also relevant that the claim Ms Hazledine seeks to pursue against Mr Giddings and Mr Wakerley in her general protections application is one of accessorial liability under ss.362 and 550 of the Act. In order to succeed in such a claim, Ms Hazledine would have to establish, inter alia, that the principal (AJG) contravened the Act in the manner contended for by Ms Hazledine and the accessories (Mr Giddings and Mr Wakerley) were “implicated or involved in the contravention … or … must participate in, or assent to, the contravention”. 14 That is, there must be a close link between the accessories and the contravening conduct on the part of the principal, one element of which in this case is Ms Hazledine’s dismissal. This further emphasises the closeness of the relationship between Ms Hazledine’s dismissal and her general protections application against Mr Giddings and Mr Wakerley.
[45] For these reasons, we reject ground two of the Notice of Appeal.
Ground 3
[46] The fact that different remedies are available under different statutes in connection with a range of statutory causes of action which an employee may pursue on their dismissal does not alter the clear words and purpose of s.725 of the Act. What s.725 requires is for an applicant to make an election between available statutory remedies in relation to their dismissal.
[47] In this case, the personal prohibition imposed on Ms Hazledine by s.725 of the Act required her to make an election between the remedies available under the Act and those available under the AHRC Act. That election did not prevent Ms Hazledine from pursuing remedies against each of AJG, Mr Giddings and Mr Wakerley, regardless of whether she commenced proceedings under the Act or the AHRC Act. Accordingly, we reject ground 3 of the Notice of Appeal.
Grounds 4 and 5
[48] The Deputy President clearly had regard to the definition of “dismissed” in the Act when considering the arguments raised by Ms Hazledine in relation to those matters. 15
[49] It has never been in dispute that Ms Hazledine was employed and later dismissed by AJG. Nor has it been in dispute that neither Mr Giddings nor Mr Wakerley employed or dismissed Ms Hazledine at any time. However, the identity of the entity that employed and/or dismissed an applicant is not determinative of the question of whether a general protections application is in relation to the applicant’s dismissal.
[50] In her general protections application, Ms Hazledine points to the fact that the letter from AJG to Ms Hazledine whereby her employment was terminated is authored by Mr Giddings. 16 Ms Hazledine also contends in her general protections application that Mr Wakerley was involved in the decision to terminate Ms Hazledine’s employment. Ms Hazledine relies upon these links between Mr Giddings and Mr Wakerley to the decision to terminate her employment as the basis for contending in her general protections application that they have each “contravened section 362 and/or section 550 in relation to the termination of Ms Hazledine’s employment”.17 In those circumstances, we are satisfied that the Deputy President was correct to conclude that Ms Hazledine’s general protections application was an application “in relation to the dismissal” within the meaning of s.725 of the Act.18 Accordingly, we reject grounds 4 and 5 of the Notice of Appeal.
[51] As to Ms Hazledine submission that Krongold v Leibowitz 19 is authority for the proposition that s.725 cannot operate when the respondents to the general protections application are different to the respondent to an AHRC complaint, a careful reading of Krongold reveals that the case was not decided on that basis. It is clear from paragraphs [17] to [19] of Krongold that the basis for the decision was the finding that the complaint to the AHRC was not one “in relation to dismissal”; the case was not decided on the basis that there were different respondents. The comments by the Deputy President at paragraph [9] of Krongold are obiter. In any event, for the reasons set out elsewhere in this decision, we do not consider that the fact that there may be different respondents to different applications or complaints is determinative of the question of whether such applications or complaints relate to the dismissal of the employee.
Conclusion
[52] For the reasons set out above, we are satisfied that the Deputy President did not err in any of the ways contended by Ms Hazledine in relation to his finding that Ms Hazledine’s general protections application was an application in relation to her dismissal, with the result that it was barred by s.725 of the Act. Accordingly, the appeal is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr M Harmer appeared for the Appellant.
Mr S Moore of Counsel appeared for the Respondent.
Hearing details:
2016
Sydney
10 November
1 [2016] FWC 4989 (the Decision)
5 Ibid at [75]
6 Birch v Wesco Electrics (1966) Pty Ltd [2012] FMCA 5; (2012) 218 IR 67 at [61]
9 Decision at [5]
10 [2012] FMCA 5
11 See, too, Cook v ACI Operations Pty Ltd [2011] FWA 3715 at [12]; RailPro Services v Flavel [2015] FCA 504 at [121]; and Du v University of Ballarat [2011] FWAFB 5225
12 Decision at [31]-[38]
13 See Ms Hazledine’s general protections application, schedule at [2.2]
14 CFMEU v Clarke (2007) 164 IR 299 at [26]; see, too, CFMEU v McCorkell Constructions (No 2) (2013) 232 IR 290 at [289]
15 Decision at [14], [28] and [29]
16 Ms Hazledine’s general protections application, schedule at [2.2]
17 Ibid
18 Decision at [38]
Printed by authority of the Commonwealth Government Printer
<Price code C, PR589653>