| [2021] FWC 6412 [Note: An appeal pursuant to s.604 (C2021/6716) was lodged against this decision – refer to Full Bench decision dated 25 May 2022 [[2022] FWCFB 79] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 773 - Application to deal with an unlawful termination dispute
Sue Jacobs
v
Adelaide Theosophical Society Inc. (New Dimensions Bookshop)
(C2021/6716)
DEPUTY PRESIDENT ANDERSON |
ADELAIDE, 24 NOVEMBER 2021 |
Application to deal with an unlawful termination dispute – whether statute barred – whether entitled to make general protections court application – conduct individually and cumulatively actionable as general protections claim – application statute barred
[1] On 5 October 2021 Susan Jacobs (Ms Jacobs or the applicant) applied under section 773 of the Fair Work Act 2009 (FW Act) for the Commission to deal with an unlawful termination dispute.
[2] On 27 August 2021 Ms Jacobs was dismissed from employment by the Adelaide Theosophical Society Incorporated (the Society or respondent) in contravention of subsection 772(1) of the FW Act.
[3] The Society opposes the application. It raises a jurisdictional issue. It says the application is statute-barred by section 723 of the FW Act.
[4] Ms Jacobs disputes her application is statute-barred. She contends that section 723 does not apply to the circumstances of this matter.
[5] This decision deals with the jurisdictional issue.
[6] By agreement, and without prejudice, I conducted informal private conciliation on 15 and 19 October 2021 in an endeavour to settle the dispute without recourse to proceedings under section 776 of the FW Act.
[7] The matter did not resolve by informal conciliation.
[8] Though the application was filed on the twenty-second day after dismissal, it is agreed by the parties, and I am satisfied, that the application is within time given that the twenty-first day was a public holiday in South Australia. Section 36 of the Acts Interpretation Act 1901 (Cth) has the effect that the application was able to be filed (as it was) on the first day following a public holiday.
[9] Consistent with the reasoning of the Federal Court in Coles v Milford1, in order to formally deal with the application (by conference as required by section 776(2) or by issuing a certificate under section 776(3), or otherwise) it is necessary for the Commission to be satisfied of its jurisdiction.
[10] On 15 October 2021 I issued directions for determination of the jurisdictional issue.
[11] By consent, both Ms Jacobs and the Society have been granted permission to be represented having regard to efficiency of proceedings including complexity of the jurisdictional issue.
[12] By consent, the jurisdictional issue was determined on the papers. Materials were filed by the Society on 5 and (in reply) 18 November 2021 and by Ms Jacobs on 15 November 2021.
[13] The employer submits the application is statute-barred by section 723 of the FW Act on the basis that Ms Jacobs “was entitled to make a general protections court application”.
[14] Ms Jacobs submits that she was not entitled to make a general protections court application, and thus is not statute-barred.
[15] Facts relevant to the jurisdictional issue are not in dispute.
[16] The Society is a not for profit association operating the New Dimension Bookshop in Adelaide, South Australia. The bookshop retails literature relevant to the purposes of the Society.
[17] Ms Jacobs was notified of dismissal on 27 August 2021 with the termination taking effect on 13 September 2021.
[18] The dismissal followed a dispute between Ms Jacobs and the employer over a requirement mandated by the Society that Ms Jacobs wear a face mask. The employer claimed its mandate was required by a public health order issued by South Australian authorities to manage the risk of COVID-19 transmission, and its assessment of risk. Ms Jacobs claimed that she had legitimate and verified medical reasons (claustrophobia) to refuse to wear a face mask, and the employer unreasonably failed to accept those reasons.
[19] The reason for dismissal asserted by the employer is that Ms Jacobs was no longer able to perform an inherent requirement of the job, being the wearing of a face mask.
[20] On 5 October 2021, after taking legal advice, Ms Jacobs filed (through her solicitor) an application under section 773 of the FW Act.
[21] Section 773 provides:
“773 Application for the FWC to deal with a dispute
If:
(a) an employer has terminated an employee’s employment; and
(b) the employee, or an industrial association that is entitled to represent the industrial interests of the employee, alleges that the employee’s employment was terminated in contravention of subsection 772(1);
the employee, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
[22] Section 772 relevantly provides:
“772 Employment not to be terminated on certain grounds
(1) [When employer must not terminate employment]
An employer must not terminate an employee’s employment for one or more of the following reasons, or for reasons including one or more of the following reasons:
(a) temporary absence from work because of illness or injury of a kind prescribed by the regulations;
(b) trade union membership or participation in trade union activities outside working hours or, with the employer’s consent, during working hours;
(c) non-membership of a trade union;
(d) seeking office as, or acting or having acted in the capacity of, a representative of employees;
(e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
(f) race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
(g) absence from work during maternity leave or other parental leave;
(h) temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.
(2) However, subsection (1) does not prevent a matter referred to in paragraph (1)(f) from being a reason for terminating a person’s employment if:
(a) the reason is based on the inherent requirements of the particular position concerned; or
(b) if the person is a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—the employment is terminated:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.” (notes omitted)
[23] Section 723 provides:
“723 Unlawful termination applications
A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.”
[24] The Society submits that Ms Jacobs is statute-barred by section 723 because she is a person who was entitled to make a general protections court application under Part 3-1 of the FW Act. In particular, the Society says that Ms Jacobs was entitled to make an application under section 365 for the Commission to deal with a dismissal dispute.
[25] In advancing this submission, the employer contends:
• that it is a national system employer and therefore Ms Jacobs is a national system employee to whom Part 3-1 General Protections applies;
• the statutory intent (reflected by section 723) is that where a national system employee is able to make a general protections application then that person is barred from making an application under section 773 (Part 6-4). It is said that Part 6-4 is only available to fill a lacuna, being those dismissed employees who are not national system employees or whose alleged grounds of dismissal are not actionable via a general protections claim; and
• the grounds of unlawfulness asserted by Ms Jacobs are actionable under the general protections provisions of the FW Act.
[26] Ms Jacobs submits that whilst she was a national system employee employed by a national system employer, she was not entitled to make a general protections court application because:
• a general protections court application can only be made once the Commission issues a certificate under section 368(3), and this had not happened at the time Ms Jacobs made her claim, or at all; or
• the grounds on which Ms Jacobs alleges unlawfulness are not grounds on which a general protections court application under Part 3-1 could have been made. This is because either they are not wholly covered by categories of unlawfulness in Part 3-1 or have been “extinguished” 2 by not falling within the operation of sections 351(2)(a) or (b).
[27] In advancing these contentions, Ms Jacobs relies on a decision of a full bench of the Commission in Krcho v University of New South Wales3 delivered on 7 July 2021 and an earlier decision of a single member of the Commission in McIntyre v SBS Corporation4.
[28] It is not in dispute and I find that the Society was, at the relevant time (the dismissal), a national system employer and Ms Jacobs a national system employee for the purposes of Part 3-1 (General Protections).
[29] The issue for determination is whether Ms Jacobs was, upon being dismissed, “entitled to make a general protections court application” within the meaning of section 723 in relation to the unlawful conduct she alleges.
[30] If so, she is statute-barred by section 723. This is because the application which has been made is an “unlawful termination application” for the purposes of section 723. That phrase embraces an “unlawful termination FWC application” which is defined in section 730(2) as being an “application under section 773 for the FWC to deal with a dispute that relates to dismissal” 5.
[31] To determine whether the application is statute-barred it is necessary to identify what is meant by a “general protections court application’ and what is meant by “conduct” in section 723.
[32] A “general protections court application” is defined by section 368(4) as “an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part” (being Part 3-1).
[33] The “conduct” referred to in section 723 is not “adverse action” simpliciter (in this case, dismissal) but adverse action as proscribed by Part 3-1. In relation to Ms Jacobs’s application it is dismissal because the dismissal was taken for one or more of the proscribed reasons (or reasons that include the proscribed reasons). 6
[34] Was Ms Jacobs entitled to make a general protections court application having regard to the alleged conduct?
Non-issuance of certificate
[35] I deal firstly with the submission by Ms Jacobs that she was not so entitled because a general protections court application can only be made once the Commission issues a certificate under section 368(3), and this had not happened at the time Ms Jacobs made her claim.
[36] I observe this issue was not the basis on which the full bench determined in Krcho that section 723 did not apply. Observations in that decision concerning alternate constructions of section 723 in the context of section 370 were obiter. Krcho was decided on the basis that alleged unlawful conduct in that matter was not wholly proscribed by Part 3-1: 7
“[36] …But we need not express a view about how that tension can be resolved to determine the appeal because on any view of the operation of s 723 of the Act, the unlawful termination application brought by the appellant was not prohibited for the reasons explained below.”
[37] Issuing a certificate under section 368(3) is a mandatory step once the Commission has dealt with a general protections dismissal dispute (other than by arbitration) and is satisfied all reasonable steps to resolve the dispute have been or are likely to be unsuccessful.
[38] As Ms Jacobs submits, issuing a certificate is a condition precedent to making a general protections court application (section 370(a)(i)).
[39] However, for two reasons I do not accept the submission that Ms Jacobs was not “entitled to apply” within the meaning of section 723 until a certificate had in fact been issued under section 368(3).
[40] Firstly, such a construction has the effect of rendering the statutory bar in section 723 largely nugatory. A dismissed national system employee (even one dismissed only for a proscribed reason under Part 3-1) who has not commenced proceedings under Part 3-1 could, if that that were so, never be statute-barred from making an unlawful termination application because, at the time of applying, the Commission’s jurisdiction under Part 3-1 had not been invoked and the Commission necessarily had no power to issue a certificate.
[41] It is a well-established principle of construction that words used by the legislature are to be interpreted in a manner that gives meaning and effect, in the statutory context. 8 Ms Jacobs’s construction has the effect of giving section 723 no work to do in such a scenario. That scenario is not a marginal or unforeseeable circumstance. The mandatory nature of section 723 (“a person must not”) underscores the importance of affording section 723 meaningful effect within the statutory scheme.
[42] Secondly, whilst section 370 means that issuing a certificate under section 368(3) is a condition precedent to making a general protections court application, a condition precedent does not necessarily equate to a person being “entitled” to apply. Section 370 provides that “a person who is entitled to apply under section 365” is unable (“must not”) to make a court application unless a certificate has been issued. The entitlement referred to in section 370 is expressed as an entitlement “to apply under section 365”. It is not expressed as an entitlement to make a court application. Thus, in advance of the condition precedent arising, the person must already be entitled to invoke the cause of action, as evident by the use of the present tense in the phrase in section 370 “who is entitled”. Whilst construing these provisions of the Act is not without difficulty (as apparent from the full bench discussion in Krcho), section 370 makes issuing a certificate a condition precedent to making a court application but not does not relevantly determine whether a person is “entitled” to invoke the cause of action.
[43] This being so, the phrase “entitled to” in section 723 is best construed in the same manner. The construction I adopt is one in which a person is “entitled” in the sense that the conduct they allege, if proven, would establish a cause (or causes) of action under Part 3-1 (for example, under section 365 or section 372). In contrast, procedural conditions precedent to the making of court applications (such as a certificate being issued) arise once a person is entitled to invoke the jurisdiction and a conference has been conducted by the Commission.
[44] This construction of section 723 viewed in statutory context has the effect of giving section 723 meaning and effect.
[45] I therefore do not conclude that Ms Jacobs was not statute-barred simply because a certificate had not been issued by the Commission under section 368(3) at the time she made her unlawful termination application.
Employer position ‘extinguished’
[46] The second ground advanced by Ms Jacobs to assert jurisdiction notwithstanding the terms of section 723 is that the conduct which the employer says occurred has been “extinguished” by not falling within the exclusions in sections 351(2)(a) or (b).
[47] To the extent this submission is that “conduct” for the purposes of section 723 cannot be conduct excluded from being unlawful by sections 351(2)(a) or (b), it is misconceived. Such a construction would require a merits hearing of an unlawful termination application in order to determine whether reliance by an employer on sections 351(2)(a) or (b) is in fact made out.
[48] A statutory provision such as section 723 that establishes a bar to a category of claims cannot reasonably be construed as requiring a merits hearing of a claim in that category in order to determine whether the statutory bar is made out. Rather, “conduct” for the purposes of section 723 bears no relationship to whether an employer’s conduct falls within sections 351(2)(a) or (b). As observed in Krcho, “conduct” for the purposes of section 723 is the adverse action as proscribed by Part 3-1 as evident on the face of the application.
Are the grounds of unlawfulness actionable under Part 3-1?
[49] Arising from the applicant’s written submissions is an associated contention that Ms Jacobs was not entitled to make a general protections court application under Part 3-1 because the grounds of unlawfulness she alleges are not wholly covered by the grounds on which a general protections application under Part 3-1 could have been made.
[50] Ms Jacobs’s unlawful termination application alleges termination for the following reasons proscribed by section 772(1):
• “the filing of a complaint against an employer involving alleged violation of laws or regulations, or recourse to competent administrative authorities” (section 772(1)(e)); and
• “physical or mental disability” (section 772(1)(f)).”
[51] The application provides particulars of the alleged physical or mental disability. It provides no particulars of an alleged filing of a complaint in advance of dismissal.
[52] The originating application (F9) does not indicate on its face whether Ms Jacobs is advancing these unlawful reasons cumulatively or in the alternative. In answer to the question “Which unlawful reason(s) set out in the Fair Work Act 2009 was/were the basis for the employer terminating your employment?” Ms Jacobs simply marked these two reasons from a menu of twenty-two options presented. That menu of options is drawn from the categories of conduct proscribed by sections 772(1)(a) to (h).
[53] Are either or both forms of conduct alleged by Ms Jacobs actionable (that is, proscribed conduct that could ground a general protections court application) under Part 3-1?
[54] Section 539(2) provides that general protection applications may be made to the court for orders in relation to a contravention of specified provisions (set out in tabular form). This includes conduct proscribed by sections 340(1), 340(2), 343(1), 344, 345(1), 346, 348, 349(1), 350(1), 350(2), 351(1), 352, 353(1), 354(1), 355, 357(1), 358, 359 and 369(3).
[55] Of these proscribed forms of conduct, section 351 is relevant. It provides:
(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
(2) However, subsection (1) does not apply to action that is:
(a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or
(b) taken because of the inherent requirements of the particular position concerned; or
(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:
(i) in good faith; and
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.
(3) Each of the following is an anti-discrimination law:
(aa) the Age Discrimination Act 2004;
(ab) the Disability Discrimination Act 1992;
(ac) the Racial Discrimination Act 1975;
(ad) the Sex Discrimination Act 1984;
(a) the Anti-Discrimination Act 1977 of New South Wales;
(b) the Equal Opportunity Act 2010 of Victoria;
(c) the Anti-Discrimination Act 1991 of Queensland;
(d) the Equal Opportunity Act 1984 of Western Australia;
(e) the Equal Opportunity Act 1984 of South Australia;
(f) the Anti-Discrimination Act 1998 of Tasmania;
(g) the Discrimination Act 1991 of the Australian Capital Territory;
(h) the Anti-Discrimination Act of the Northern Territory.”
[56] Discrimination on the ground of “physical or mental disability’ is included in the proscribed forms of discrimination under section 351. The unlawful conduct alleged by Ms Jacobs (dismissal because of “physical or mental disability”) is the same subject matter. It is conduct alleged to have occurred in South Australia. As it is also conduct unlawful under the Equal Opportunity Act 1984 (SA), the exclusion in section 351 does not apply. Thus, the discriminatory conduct alleged by Ms Jacobs gives rise to a cause of action under Part 3-1 as it is discriminatory conduct within the meaning of section 351.
[57] Accordingly, Ms Jacobs was “entitled to” apply within the meaning of section 723 insofar as her allegation of unlawful conduct in the form of discrimination on the ground of physical or mental disability is concerned.
[58] That being so, reliance on this head of alleged conduct would result in Ms Jacobs’s application being statute-barred.
[59] This leaves the alleged conduct of being dismissed because of “filing of a complaint against an employer involving alleged violation of laws or regulations, or recourse to competent administrative authorities” (section 772(1)(e)). Was Ms Jacobs similarly entitled to apply under Part 3-1 for a remedy in respect of such conduct?
[60] Ms Jacobs’s application fails to provide particulars of the alleged complaint or recourse to an administrative body that she relies on in asserting unlawful conduct. Leaving that deficiency to one side, the conduct proscribed by section 772 (sub-section (1)(e)) relied on by Ms Jacobs has direct overlap with conduct proscribed by section 341 in Part 3-1. Section 341(1) relevantly provides:
“341 Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.” (Emphasis added)
[61] Thus, dismissal on the ground of making a complaint under a workplace law to an administrative body is unlawful under Part 3-1, as under section 772(1)(e).
[62] In Krcho, the applicant in that matter relied in part, as does Ms Jacobs, on an allegation of a breach of section 772(1)(e) (making a complaint of a relevant kind). The full bench observed: 9
“[2] The dismissal, as a form of adverse action, is also proscribed variously by ss 340, 351 and 352 of the Act, if taken because of the reasons set out in the first six dot points above.”
[63] The second of the six dot points of paragraph [1] in Krcho concerned making a complaint of a relevant kind. 10 This notwithstanding, the full bench held that section 723 did not apply because one of the reasons relied upon was the applicant’s political opinion and, as the full bench found, adverse action for that reason in New South Wales was not proscribed by Part 3-1.
[64] Unlike Krcho, in this matter all the forms of unlawful conduct alleged by Ms Jacobs are proscribed by Part 3-1.
[65] Ms Jacobs was entitled to apply under Part 3-1 for a remedy in respect of the alleged breach of section 772(1)(e).
[66] As Ms Jacobs was entitled to apply under Part 3-1 with respect to the alleged unlawful conduct, then irrespective of whether that conduct is considered individually (as one act of adverse action for either stated reason) or cumulatively (as one act of adverse action for all of the stated reasons), Ms Jacobs was a person “entitled to make a general protections court application in relation to that conduct”. As observed in Krcho: 11
“Section 723 is concerned with “conduct” that can be the subject of both an unlawful termination application and a general protections court application and where that is so, it prohibits the former application.”
[67] Accordingly, Ms Jacobs’s application is statute-barred by section 723 of the FW Act.
[68] That being so, the application must be dismissed. An order 12 giving effect to this decision is issued in conjunction with its publication.
DEPUTY PRESIDENT
Decision made on the papers.
Written submissions
Sue Jacobs: 15 November 2021 (with permission)
Adelaide Theosophical Society Inc. (New Dimensions Bookshop): 5 and 18 November 2021 (with permission)
Printed by authority of the Commonwealth Government Printer
<PR736040>
1 [2020] FCAFC 152
2 Applicant submissions paragraph 4.3
5 Krcho [20]
6 Krcho [24]
7 Krcho at [36]
8 Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]
9 Krcho at [2], [28] – [29]
10 Krcho at [1]
11 Krcho at [38]