Fair Work Act 2009
s.372—General protections
Frank Faulkner
v
Tidewater Marine Australia Pty Ltd
(C2012/5373)
COMMISSIONER WILLIAMS
|
PERTH, 29 APRIL 2013
|
General protections - jurisdiction.
[1] This matter involves an application concerning an alleged contravention of Chapter 3 - Rights and Responsibilities of Employees, Employers, Organisations etc., Part 3-1 General Protections of the Fair Work Act 2009 (the Act). The applicant is Mr Frank Faulkner (the applicant or Mr Faulkner) and the respondent is Tidewater Marine Australia Pty Ltd (the respondent or Tidewater)
Background
[2] On 19 September 2012 the applicant’s representative lodged a Form F8 (the application). Such forms are headed as follows:
“Application for FWA to Deal with a General
Protections Dispute
Fair Work Act - ss.365,372”
[3] The completed Form F8 says the alleged contravention identified was section 340.
[4] The description of the alleged contravention was contained in a two-page Annexure A. In summary this explained that the applicant had been employed by Tidewater since 1999. The application asserted that in the circumstances of the applicant’s employment with Tidewater he was entitled to the benefits of various legislation and accordingly had workplace rights of a kind particularised at section 341(1) of the Act.
[5] In April 2011 the applicant was the Master of one of the respondent’s vessels.
[6] As the Master he decided on 26 April 2011 not to proceed with offloading to a second vessel because he was aware of high levels of a dangerous gas in the tanks of the other vessel and was aware of the dangerous properties of that gas and the occupational health and safety risks of proceeding with the unloading whilst the gas was present in high levels.
[7] On 11 May 2011 the applicant received a termination letter from Tidewater stating the reason for termination was the need to reduce Tidewater’s workforce.
[8] It was alleged that a client of Tidewater had placed pressure on Tidewater to take adverse action against the applicant as a result of its dissatisfaction with the applicant’s actions on 26 April 2011.
[9] The applicant queried the termination with Tidewater’s Human Resource Manager who subsequently apologised to him and told him he would be reinstated. Around 22 February 2012 Tidewater sent a letter to the applicant rescinding his termination.
[10] However despite written demands by the applicant’s solicitors the applicant has not been reinstated, has received no compensation for the time off work and received no acknowledgement of the continuing injustice that Tidewater has visited upon him.
[11] Annexure A then reads as follows:
“11. In the circumstances as described in summary form in this Annexure:
(a) Tidewater took adverse action against the Applicant within the meaning of s 342(1) of the Act, namely by dismissing him, injuring him in his employment and altering his position to his prejudice;
(b) That adverse action was for the reason or reasons which included that the Applicant had a workplace right, had exercised a workplace right, proposed to exercise a workplace right or was to prevent the exercise of workplace right, that workplace right being one or more of the matters set out in paragraph 2(c) above;
(c) Tidewater acted unlawfully by breaching s 340(1) of the Act;
(d) The breach has caused the Applicant pecuniary loss, namely:
(i) as at 10 September 2012m the sum of $168,756.84, representing 4 period of 5 week swings from 13 July 2011 to 27 June 2012 at $42,189.21 per swing, together with certain allowances (particulars of which will be provided);
(ii) a further sum representing the opportunity the Applicant lost to perform work remunerated at a higher rate reflecting the position of permanent, or full time, Master.
(e) The breach also caused the Applicant harm in the form of the distress, hurt, and anxiety he has suffered by reason of his treatment by Tidewater.
12. The Applicant seeks a resolution of his dispute with Tidewater by conciliation in Fair Work Australia but reserves all of his rights, particularly his right to apply to, and seek orders from, a federal court pursuant to ss 539 and 545 of the Act.”
[12] Question number three on the Form F8 asks whether the alleged contravention involves the dismissal of the applicant. This question has been answered “Yes”.
[13] The date of dismissal was specified as 11 May 2011.
[14] The Commission’s staff when making up a file for the application characterised the application as one made under section 365 of the Act.
[15] In response to the application Tidewater lodged a Form F8A - Employer’s Response to Application for the Commission to Deal with a General Protections Dispute (the employer’s response).
[16] Relevantly the employer’s response explained the basis of employment and that Tidewater had terminated the employment of the applicant by letter dated 11 May 2011 due to a significant decline in the availability of work.
[17] The employer’s response then says that given the employment was terminated the respondent is unaware of how it could then have injured the applicant in his employment and altered his position to his prejudice as claimed.
[18] The employer’s response also says the application is made out of time being made after 60 days from the date of termination, see section 366 of the Act, and the applicant has not outlined any exceptional circumstances in support of an extension of time to make the application.
[19] Initially the Commission directed the parties to provide written submissions firstly from the applicant and then from the respondent dealing with the respondent’s objection that the application was made out of time.
[20] In the applicant’s submissions it was argued that the substance of the adverse action complained of is what Tidewater has failed to do since it reinstated the applicant on 22 February 2012 and the primary relief sought is for this to be compensated and that primary relief is sought pursuant to section 372 of the Act, for which no extension of time is needed.
[21] In light of these submissions the matter was listed for hearing to take submissions as to whether the application was one made under section 365 or 372 of the Act.
Evidence and factual findings
[22] Two affidavits sworn by Mr Faulkner were provided to the Commission. The respondent accepts this evidence and did not seek to cross-examine Mr Faulkner.
[23] The relevant facts then are as follows:
(a) On 27 May 2011 the applicant received a termination letter from Tidewater dated 11 May 2012.
(b) He did not accept that his termination was for the reasons stated in the termination letter, and contested the legitimacy of the termination, initially through his union the AMOU.
(c) Specifically, he wrote to the respondent’s then Personnel Manager Renae McMahon (Ms McMahon) by email on 31 May 2011 contesting his termination.
(d) Ms McMahon responded to the applicant by email on 7 June 2011 informing him that “due to client advice” the respondent was “unable to engage” the applicant as “Master on the Dulaca Tide” the vessel of which the applicant had been the Master prior to his termination.
(e) The applicant continued to pursue his employment circumstances through the period June to November 2011 by actively liaising with the AMOU who ultimately arranged a meeting with Ms Treena Vivian (Ms Vivian) the then Human Resources Manager of Tidewater with the AMOU and the applicant on 22 November 2011.
(f) Ms Vivian told the applicant in or around late November 2011 that a letter of rescission could be given. This followed the applicant having provided her with a copy of an email which he had sent to the AMOU explaining what he required to resolve the situation which included a letter from the employer rescinding his termination, reinstating him to the position of Master of the vessel and compensation for the period off work.
(g) Ms Vivian then by letter of 22 February 2012 on behalf of the respondent
expressly rescinded the termination letter “as agreed to in our discussions”. Moreover she contemplated having the applicant “back at work in the Tidewater Fleet”.
[24] The applicant then having received no written response to his claim for reinstatement and compensation decided to engage solicitors to pursue the issues.
[25] Subsequently the applicant’s solicitors have pursued the matter in writing and attempted to obtain responses to their correspondence from Tidewater’s representatives without success.
[26] The applicant has not undertaken any work for the respondent since receiving the original letter of termination in May 2011 nor has he received any payment as compensation.
Submissions
The applicant
[27] It is submitted that although the application refers to both section 365 and section 372 of the Act, Annexure A to the application explains the substance of the adverse action complained of; namely what the respondent has failed to do since it reinstated the applicant in writing on 22 February 2012, as had been foreshadowed verbally in November 2011.
[28] Thus the primary relief sought by the applicant is to be compensated as particularised in paragraph 10 and 11(d) of Annexure A to the application. That primary relief is sought pursuant to section 372 of the Act, for which no extension of time is needed.
[29] If despite all of the above any extension of time is needed it is warranted because, applying the criteria in section 366(2) of the Act, the reason for the delay is clearly explained and supported by cogent evidence. It is submitted it is really a misnomer to speak of a “delay” because the applicant thought he was an employee of the respondent from 22 February 2012.
[30] The applicant took diligent and appropriate steps to dispute hi[31] 
s purported dismissal by the termination letter.
[32] The respondent asserts prejudice with no particularisation, let alone supporting evidence.
[33] It is submitted the merits of the application appear to be extremely strong. It appears that the applicant has been refused work that would otherwise have been made available to him because of reasons that concerned, or at least included (see section 360 of the Act) one or more of the reasons in section 340 of the Act. The respondent has real work to do to discharge the onus upon it under section 361 of the Act.
[34] There do not appear, at least to the applicant’s knowledge, to be any other persons in a like position.
[35] The applicant submits the applying these criteria, the circumstances are truly exceptional. Employers do not usually write to members of their work force rescinding a purported termination, foreshadowing the provision of work, and then entirely ignore the employee (see paragraphs 37-40 of applicant’s affidavit) causing him to commence proceedings to vindicate his rights and later feign a lack of any “awareness” of how the employee could have been injured in his employment and had his position altered to his prejudice.
The respondent
[36] The respondent submits the application appears to be brought under section 365 of the Act.
[37] The respondent bases this conclusion on the following:
(a) the application alleges that the respondent contravened section 340 of the Act, recites the relevant workplace rights, and asserts that the applicant was dismissed:
(i) because he had a workplace right;
(ii) because he exercised or proposed to exercise a workplace right;
(iii) to prevent him exercising a workplace right.
(b) the application confirms that the applicant was dismissed and refers to the reasons for termination given by the respondent; and
(c) both the application, at Annexure A, and the applicant’s affidavit repeatedly refer to the applicant’s dismissal as one of the forms of adverse action to which he has been subjected.
[38] It is submitted an application brought pursuant to section 365 of the Act can only be dealt with if:
(a) a person has been dismissed; and
(b) the person alleges that he was dismissed in contravention of Part 3-1 of the Act; and
(c) the application is made within 60 days of the date on which the dismissal took effect or within any further period that the Commission allows.
[39] 
The respondent submits the application should be dismissed because it was brought 400 days out of time when there are no exceptional circumstances justifying an extension of time to apply.
Section 366(2) matters
[40] The applicant does not provide any cogent reason for the delay in making the application. He does not explain why he could not make the application within the statutory time limit.
[41] The respondent acknowledges the applicant took some steps to dispute his dismissal.
[42] The respondent would suffer considerable prejudice if the Commission allowed the applicant an extension of 400 days that is being sought, because one employee who had been directly involved in and who had direct knowledge of the circumstances in which the applicant was dismissed, has since left the respondent and the respondent does not know where to find her. Her evidence would be crucial to the respondent’s defense.
[43] It is submitted the application is without merit. The respondent is supportive of its employees’ efforts to work safely and has no concern about the applicant aborting work on an unsafe task.
[44] The applicant was dismissed because of a downturn in work and because of some other conduct that was detrimental to its commercial interests. The dismissal had nothing to do with the applicant having exercising or choosing not to exercise a workplace right and there is no evidence to the contrary.
[45] There are no other persons in the applicant’s position and accordingly no issue of comparative unfairness arises.
[46] The application for an extension of the time within which the applicant can apply to the Commission for a remedy should be dismissed.
Section 372
[47] Notwithstanding the content of his application, the applicant now asserts that his application is brought under section 372 of the Act.
[48] An application brought pursuant to section 372 of the Act can only be dealt with if:
(a) a person alleges a contravention of Part 3-1 of the Act (i.e. a contravention that does not involve a dismissal); and
(b) the person is not entitled to apply to the FWC under section 365 of the Act.
[49] The application cannot be brought under section 372 of the Act because:
(a) the substance of the applicant’s claim and the basis for which adverse action is alleged stems from his dismissal;
(b) such an application can only properly be brought under section 365 of the Act, as the alleged contraventions prima fade involve dismissal;
(c) at the time the adverse action to which the applicant refers in support of his contention that section 372 of the Act applies, he was not the respondent’s employee and therefore:
(i) couldn’t be injured in his employment;
(ii) his position couldn’t be altered to his prejudice in an employment context;
(iii) didn’t have any workplace rights.
Legislation
[50] The relevant parts of the legislation are as follows:
“Division 8—Compliance
Subdivision A—Contraventions involving dismissal
365 Application for the FWC to deal with a dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
“Subdivision B—Other contraventions
372 Application for the FWC to deal with a dispute
If:
(a) a person alleges a contravention of this Part; and
(b) the person is not entitled to apply to the FWC under section 365 for the FWC to deal with the dispute;
the person may apply to the FWC under this section for the FWC to deal with the dispute.”
Consideration
[51] Section 340, 341 and 342 of the Act taken together in part provide that an employer must not take adverse action against an employee because the employee has a workplace right, has exercised a workplace right, or proposes to exercise a workplace right or to prevent the exercise of a workplace right by the employee.
[52] Adverse action by an employer against an employee includes dismissing the employee, injuring the employee in his employment or altering the position of the employee to their prejudice.
[53] In Shea v TruEnergy Services Pty Ltd (No 1) [[2012] FCA 628] Justice Dodds-Streeton of the Federal Court made the following observations about section 365 of the Act.
“63 The introductory reference to “the dispute” is contained in s 365, the first section of Subdivision A. Section 365 identifies the dispute at a high level of generality by reference to the occurrence of a person’s dismissal alleged to be in contravention of Part 3-1, and permits an application to FWA to deal with “the dispute” thus identified. Section 365 does not expressly, or, in my opinion, implicitly provide that “the dispute” precisely coincides with the content of the FWA application. Rather, it permits the application to be made to FWA to deal with the dispute.
64 While there are a number of different potential bases of contravention of Part 3-1, the Act does not prescribe the content, essential inclusions or level of detail of the application which may be made to FWA under s 365. The Form F8 headed “Application for FWA to Deal with a General Protections Dispute – Fair Work Act 2009 – ss 365, 372” completed by the applicant in this case is a short document setting out basic questions, including “Alleged contravention(s) of Part 3-1”, “Section(s) allegedly contravened” and “Description of alleged contravention(s)”. In the present case, the applicant’s description was contained in an annexure. In practice, the dispute identified in general terms under s 365 is likely to be further elaborated or described not only in the FWA application but also in the respondent’s response (if any) and/or the FWA conference conducted to deal with the dispute.”
[54] Justice Dodds-Streeton also noted:
‘86 More importantly, a requirement that the applicant’s principal claims in a court application first be comprehensively adumbrated in the FWA application appears inconsistent with the effective operation of the FWA application and contemplated process.
87 The FWA application must (subject to any extension) be made within a relatively short period from the date on which the dismissal takes effect. No formal statement akin to a pleading is prescribed and the legislation neither assumes nor requires the involvement of legal representatives.”
[55] These observations would equally I believe apply to applications brought under section 372 of the Act.
[56] Justice Dodds-Streeton’s recognition that the legislation only identifies “the dispute” about the alleged contraventions at a high level of generality and neither expressly nor implicitly requires that “the dispute” precisely coincides with the content of the application is relevant in this case where the parties disagree on the statutory basis for the application and look to the explanation of the dispute contained in the application for support.
[57] As Justice Dodds-Streeton noted while there are a number of different potential types of contravention of Part 3-1, the Act does not prescribe the content, essential inclusions or level of detail of the application to be made.
[58] I also note that the forms upon which applicants rely are not forms prescribed by the legislation but rather are documents developed for the use of parties by the Commission itself.
[59] As Justice Dodds-Streeton also observed in practice the dispute identified in general terms is likely to be further described in the respondent’s response and elaborated upon during any conference conducted by the Commission to deal with the dispute.
[60] Justice Dodds-Streeton clearly does not accept that the originating application lodged in the Commission must specify all the claims and details an applicant might eventually include in a later court application.
[61] Considering this application in this light Annexure A asserts amongst other things that the applicant had a workplace right to take action to protect the safety of himself and others and had exercised that workplace right.
[62] Annexure A at paragraph 11(a) details adverse action allegedly taken by the employer. This action includes the dismissal of the applicant but also mentions injuring the applicant in his employment and altering his position to his detriment.
[63] The facts of this matter support these assertions and the allegations made in Annexure A although that is not to draw any conclusions as to whether there is any connection between the existence of the workplace rights or the exercise of those workplace rights by the applicant and any adverse action that may have been taken by Tidewater against the applicant.
[64] The adverse actions asserted in the application go beyond the dismissal and include actions prescribed in section 342(1), Item 1(b) and (c) of the Act. It is also notable that the dismissal occurred in May 2011 and the other asserted adverse actions occurred after February 2012.
[65] Accepting the view that the Act does not require particular content or detail to be included in an application, there can be no complaint here that the application is deficient in its detail or specificity. What has been included in this case is in my view sufficient detail of alleged contraventions which on their face would support an application made under either section 365 or section 372 of the Act.
[66] The respondent argues that the application cannot be one made under section 372 of the Act because the alleged contraventions include the dismissal of the applicant. Therefore it is submitted the applicant is entitled to only apply under section 365 of the Act, or rather to apply seeking an extension of time, and is effectively barred from making a section 372 application.
[67] It is the case that there will be circumstances where adverse action is taken against an employee during their employment, for example they may be demoted to a lesser paying job, and sometime later further adverse action is taken in the form of the employee being dismissed. If both adverse actions were contraventions of section 340 of the Act, for example because both actions were taken by the employer because the employee had exercised a workplace right, then I do not accept that making an application under section 365 of the Act disputing the dismissal then excludes the applicant from making an application under section 372 to dispute the adverse action involving the demotion.
[68] Certainly section 372(b) of the Act prescribes that if the employee wishes to make an application disputing the dismissal that must be done under section 365 of the Act and cannot be disputed under section 372 of the Act. There is also a statutory time limit on any application involving adverse action that was a dismissal. However the employee is not in my view prevented for making a separate section 372 application based on the demotion adverse action simply because they have made a section 365 application.
[69] In my view such circumstances involve two different contraventions of the general protections provisions and so two different disputes.
[70] I note that the effect of sections 725 through to 732 of the Act is to prevent an employee making more than one application or complaint but this only applies where both of those applications or complaints are relating to the employees’ dismissal.
[71] The objection by the respondent is also that if the application is a section 372 application the employment had ended with the dismissal and any adverse action complained of arose when there was no longer an employment relationship on foot and as such there is no basis for a section 372 application.
[72] The applicant in the circumstances here has lodged an application that his submissions acknowledge and I accept could support a claim under either section 365 or section 372 of the Act.
[73] Reviewing the application, if the applicant’s view of the employment relationship after February 2012 is correct I accept that the adverse actions alleged which injured the applicant in his employment and/or altered his position to his prejudice occurred whilst he was employed.
[74] The respondent however has a different view of the relationship after February 2012 arguing he was not employed then and so there is a contest between the parties as to whether the adverse actions alleged, other than the dismissal, occurred whilst the applicant was an employee.
[75] On this point there is evidence that the respondent had rescinded the dismissal and was dealing with the applicant as an employee.
[76] Further the fact that the respondent argues he was a casual employee creates opportunity to argue that the employment relationship was ongoing even though for an extended period no work had been provided nor done by the applicant. Both parties acknowledge that further evidence and argument on this issue may be necessary in future proceedings before a court 1.
[77] The nature of the relationship between the applicant and the respondent both after May 2011 and after 22 February 2012 is a matter for a court to determine and not the Commission. These are just two of a number of disputed facts and points of law between the parties.
[78] In these circumstances I see no reason why the Commission should interfere with the applicant pursuing his application as he sees fit. The application is one that identified disputes that can be brought under either section 365 or section 372 of the Act. If the applicant, as he does, says the application is one made under a section 372 of the Act then the matter should proceed on that basis.
[79] One of the consequences of that approach is that any dispute about the dismissal of the applicant by Tidewater and the reasons for that dismissal are matters beyond the jurisdiction of this matter as a section 372 application.
[80] The issue originally to be determined by the Commission was a question as to whether an extension of time application was necessary and if it was would it be allowed.
[81] My decision is this application is to be accepted by the Commission as one made under section 372 of the Act. Consequently there is no question of the application having been made out of time.
[82] Accordingly I request the parties advise within 21 days whether or not they agree to participating in a conference conducted under section 374 of the Act.
COMMISSIONER
Appearances:
R Hooker of Counsel for the applicant.
S Heathcote, solicitor for the respondent.
Hearing details:
2013.
Perth:
January 23.
1 Transcript at PN54, PN99, PN239 and PN241.
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