[2014] FWCFB 1553 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
VICE PRESIDENT WATSON |
SYDNEY, 13 MARCH 2014 |
Appeal against decision PR544658 of Commissioner Steel at Darwin on 18/11/2013 in matter number C2013/6518 - permission to appeal - public interest - reasonable prospects of success - general protections - adverse action against the Applicant by dismissing and/or threatening to dismiss the Applicant because the Applicant has exercised a workplace right - approved unpaid leave - carers leave - power to dismiss matter - proper characterisation of application - Fair Work Act 2009- ss.368, 369, 372 400, 587, 604.
Introduction
[1] This decision relates to an application for permission to appeal against the decision of Commissioner Steel to dismiss an application under s.372 of the Fair Work Act 2009 (the Act) by Dr Tareq Abu-Izneid in relation to alleged adverse action taken by Charles Darwin University (the University).
[2] The matter has a complex history. The original application was made on behalf of Dr Abu-Izneid on 23 October 2013 by his solicitor, Mr Ron Clapham of Sutton, NSW, near Canberra, ACT. In the section of the application form headed “Dismissal” the application stated that Dr Abu-Izneid had not been dismissed although the grounds in support of the application assert that the University threatened to terminate his employment by letter dated 2 October 2013 and on 16 October 2013, advised that it will regard him as having abandoned his employment and his employment would consequently be terminated under the terms of the University’s enterprise agreement.
[3] The application was made on a form that is provided in the rules of the Commission for both s.365 applications and s.372 applications. The form does not require the specification of which of these sections under which the application is intended to be made. The application was regarded by the administrative arm of the Commission as an application under s.372 of the Act and the details on the file record that fact. Section 372 is the section that governs general protection applications where no termination of employment is involved. In its response to the application the University noted that the application does not clearly specify whether it alleges that Mr Abu-Izneid was dismissed but states that the University has dismissed him.
[4] The subsequent history, and the Commissioner’s decision and reasons, are recorded in the short decision issued by the Commissioner on 18 November 2013 as follows:
“Background
[1] This matter was processed as a s.372 Adverse Action matter. However it is apparent, that at the time of notification by the applicant on 23 October 2013, the applicant had been dismissed by the named respondent.
[2] The applicant is overseas and utilised the services of a solicitor to make the application and hence no applicant contact details were provided.
[3] The matter was listed for a conference on 18 November 2013 by video link from Adelaide to both Darwin and Melbourne. The notice for such conference was issued on 4 November 2013.
[4] On the morning of the 18 November, my associate, as a courtesy, endeavoured to contact the applicant’s solicitor by phone without success. The solicitor did not appear at the facilities in Melbourne, nor had he contacted the chambers to make any prior arrangements for consideration of attendance.
[5] During the conference with the respondent my associate returned a phone message from the solicitor in question. It was apparent from that conversation that the solicitor was in Bega, NSW and was not appearing in Melbourne. In response to our earlier phone call the solicitor requested an adjournment such that he could continue to negotiate with the respondent.
[6] The respondent’s preliminary view on this scenario was: they objected to an adjournment as the applicant was apparently not in Australia; the solicitor had to seek leave to appear at the discretion of the Commission in these matters which had not occurred; and that the solicitor had had ample opportunity to seek instructions from the applicant before the conference.
[7] Having considered the conduct of the applicant in this matter and had a documentary review of the merits of his argument; the significant issue that he is overseas and no longer employed by the respondent and that he has failed to appear and prosecute his application, the Commission has formed the view this matter should not proceed and the file closed on the basis the applicant has not appeared and has no reasonable prospect of success in his claim.
Order
[8] I accordingly dismiss the matter pursuant to s.587(1)(c) of the Fair Work Act 2009 and order the file closed.”
[5] The file contains the following email communication from Mr Dr Abu-Izneid’s Representative to the Commissioners associate sent on 18 November 2013 at 12.11pm:
“Further to our telephone conversation just now in which you have advised me that the application has been dismissed I confirm my immediate application that the decision be reversed and that I be given the opportunity to be heard to:
• Apply for leave to appear
• Apply for an adjournment
I assume that the matter is not functus at this time.
As you know I did return your call prior to 10 am but there was no answer and was trying to get through to the hearing room without success. The switchboard operator told me that that was not technically possible.
My application is made on the grounds that it would be patently unjust to my client to dismiss his application under these circumstances.
I am available all day today by telephone.
My client is in Saudi Arabia awaiting a decision on his reinstatement application so that he can resume his career.”
[6] The consequence of dismissing the matter is that the Commission did not conduct a conference of the parties and did not issue a certificate that would enable the dismissal of Mr Abu-Izneid to be challenged under the general protection provisions of the Act.
[7] The notice of appeal against the decision was lodged on 25 November 2013 and by consent of the parties full written submissions were filed by the parties in lieu of a hearing. The essence of Dr Abu-Izneid’s original grievance is expressed in the notice of appeal as follows:
“My leave request was approved in writing by my direct supervisor and then my employment was terminated because I was on unapproved leave”
[8] The ground of appeal contained in the notice was as follows:
“I am currently overseas and I was not able to attend the hearing last week. So I believe I should be able to defend my case as I believe it is a strong case and successful if it has been considered carefully.”
The Role of the Commission in General Protection matters
[9] As we have noted, the Act creates alternative procedures for alleged contraventions of the general protection provisions of the Act. If the alleged contravention involves dismissal a general protections court application cannot be made unless the Commission has issued a certificate under s.369 of the Act. (Since the Commissioner dealt with the matter the Act has been amended and now the relevant section regarding the issuing of a certificate is s.368. The effect of the provisions has not been altered in any material respect).
[10] For other alleged contraventions, adverse action that does not involve dismissal, there is no requirement for a certificate to be granted before a matter is pursued in an appropriate Court. An applicant may apply for the Commission to deal with the dispute. The Commission must hold a conference to deal with the dispute if the parties to the dispute agree to participate.
[11] These provisions were considered by a Full Bench in the recent case of Hewitt v Topero Nominees. 1 The Full Bench analysed the role of the Commission in holding a conference in relation to a s.365 application and held that apart from determining applications for an extension of time for filing applications, the Act does not impose any jurisdictional preconditions on the making of a s.365 application of such a nature that might require the Commission to engage in a process of determination involving the making of findings of fact based on the receipt of contested evidence. The Full Bench concluded that the Commission does not need to be satisfied that the applicant has been dismissed from their employment before holding a s.368 conference and that it is sufficient that the Commission has before it an application that on its face alleges a dismissal in contravention of Part 3-1.
The Power to Dismiss a Matter
[12] The Commissioner dismissed the application pursuant to s.587(1)(c) of the Act. That section provides:
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
[13] It will be seen from the above that an issue arises as to the proper treatment of the application and the consequential availability of the powers to dismiss the matter. The application did not exclusively rely on either s.372 or s.365. However the information on the application was inconsistent. The grounds suggested that a termination of employment had occurred, yet the applicant’s solicitor ticked “no” in answer to the question “Did the alleged contravention involve the dismissal of the applicant?” The Commissioner noted that the file was processed as a s.372 matter but acknowledged that at the time of the application it was apparent that Mr Abu-Iznied had been dismissed. Yet the Commissioner dismissed the application on a ground that is not available for applications made under s.365 of the Act regarding contraventions that involve dismissal.
[14] It is possible to attribute some responsibility for these events on the solicitor who completed the original application form and then did not attend the conference on 18 November or seek appropriate arrangements to enable him to attend. However in our view it should also be acknowledged that the form for applications can give rise to misunderstandings because it does not require a specific nomination of the relevant section under which the application is intended to be made and that the proper course of the administrative arm of the Commission would have been to clarify the basis of the application before assigning it as a s.372 matter. There is no evidence on the file that this was done. The failure to provide an opportunity to the applicant to clarify the basis of the application in our view amounts to a failure to provide the applicant with procedural fairness.
[15] Further, in our view, in the light of the circumstances disclosed in the application and the concessions made by the employer, the Commissioner should have ascertained the appropriate basis for the application and provided an opportunity to the applicant or his solicitor to clarify their intent. Further, in circumstances where the applicant was overseas, his solicitor was not in Darwin, Melbourne or Adelaide which were the locations of video conference facilities established for the conference, and the solicitor attempted to contact the Commission prior to the hearing, a further opportunity to enable the applicant to be heard in relation to the status of his application and ensure that the Commission carries out its duty under the relevant provisions of the Act should have been provided. A failure to accord a party procedural fairness has been held to lead to a conclusion that the jurisdiction vested in a tribunal has not been exercised and can be subsequently exercised in accordance with the law 2. This is a further basis on which the appeal in this matter should be allowed.
[16] As a result of these various errors, it is clear that Mr Abu-Izneid’s employment has been terminated, he has made an application on the form provided in the Commission’s rules for general protection applications that involve dismissal, yet the Commission has not conducted a conference under s368 of the Act, and has not issued a certificate under s.369 (now s.368) of the Act. As things currently stand, as a result of these omissions, Mr Abu-Izneid is precluded from commencing a general protections court application in relation to his dismissal. Regardless of the ultimate fate of any case he intends to pursue, this situation manifests an injustice.
Conclusions
[17] In these circumstances we are of the view that it is in the public interest to grant permission to appeal. We allow the appeal. We direct that the file be amended to record that it is made under s.365 of the Act because it was apparent at the time of the application that Mr Abu-Izneid had been dismissed. We remit the matter to Commissioner Steel to deal with in accordance with the obligations of the Commission under the Act in relation to s.365 applications.
VICE PRESIDENT WATSON
Final written submissions:
Dr T Abu Izneid, 5 and 26 February 2014.
Ms C Pugsley on behalf of Charles Darwin University, 17 February 2014.
2 Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
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