Fair Work Act 2009
s.394—Unfair dismissal

Application to amend an application made under s.394 so as to proceed as a general protections application under s.365 - power to amend - whether there is power under s.586 to make the amendment sought - whether such amendment is permissible having regard to the multiple actions provisions in Part 6-1.

[1] On 21 July 2014 the President of the Fair Work Commission (the Commission) referred to this Full Bench two matters involving applications to allow amendments to applications made under s.394 of the Fair Work Act 2009 (the Act) so that they may proceed as general protections applications under s.365 of the Act.

[2] The matters were listed for hearing by the Full Bench and directions were issued for the filing of submissions by the parties. The Commonwealth and peak industry bodies were advised about the proceedings and the timeframe for the filing of submissions. Submissions were filed by the parties in the two matters and by the Australian Chamber of Commerce and Industry (ACCI), the Australian Industry Group (AIG) and the Australian Council of Trade Unions (ACTU). Before the hearing date, the applicant in matter U2014/6588 advised that, as part of a settlement agreement, she wholly discontinued her applications before the Commission.

[3] At the hearing on 11 September 2014, the applicant in matter U2014/5530, Mr Peter Ioannou (the applicant), was represented by Ms F. Knowles of counsel, and the respondent, Northern Belting Services Pty Ltd (the respondent) was represented by one of its employees, Ms N. Mitrevski. The ACTU was represented by Ms J. Dolan, AIG was represented by Mr B. Ferguson, and ACCI was represented by Mr R. Clancy.

[4] The orders sought by the applicant are that the Commission dispense with the requirements that a s.365 application be made on Form 8 and that the s.365 application be taken to have been made on the date the s.394 application was made by him. It was submitted by the applicant that the orders could be made pursuant to s.586 of the Act which allows the Commission to correct or amend an application or otherwise waive an irregularity in the form or manner in which an application is made to the Commission. It was said that the power in s.586 is complemented by the powers of the Commission which allow the Commission to dispense with compliance with any provision of the Fair Work Commission Rules 2013 (the Rules) (see Rule 6).

[5] In support of these submissions, Ms Knowles referred to various cases in which the Commission has been asked to exercise the power under s.586 of the Act to grant orders which it was said were analogous to the orders sought. 1 It was submitted that these cases illustrate that the Commission has been willing to amend an application incorrectly filed to allow for a general protections claim to proceed and provide examples of the considerations to be taken into account in allowing such amendments. Ms Knowles presented extensive submissions regarding matters that should be taken into account by the Commission in determining whether a request to amend an application should be granted.

[6] The applicant’s submissions were supported by the ACTU. The ACTU referred to the objects of the Act, in particular those relating to Part 3-2 dealing with Unfair Dismissals (s.381) and Part 3-1 dealing with General Protections (s.336), and to the approach which should be taken by the Commission in the exercise of its functions and powers (see ss.577 and 578). It was submitted that it would not be fair to deny an applicant, especially an unrepresented applicant, the ability to amend an application which might have been better been pursued under other provisions of the Act. It was said that s.586 gives power to the Commission to allow the correction or amendment of an application such as that presently before the Commission on terms considered appropriate.

[7] The respondent opposed the amendment. It was said that considerable time and expense have already been devoted to participating in the conciliation of the unfair dismissal application and that further hearings and extra costs would be involved if the amendment was granted and the matter proceeded as a general protections application. The respondent also challenged the applicant’s submissions as to the reasons for his dismissal.

[8] The AIG and the ACCI supported the respondent’s position. It was submitted that the Commission does not have jurisdiction to permit an unfair dismissal application to be converted into a general protections application, or vice versa. Further it was submitted that, even if there was such power, the Commission should determine that such an approach is not “appropriate” for the purposes of s.586(a) of the Act.

Issues for determination

[9] Two main issues arise for consideration in relation to the present matter:

(i) Does the Commission have power to amend an application made under s.394 of the Act so that it may proceed as an application under s.365 of the Act; and

(ii) if there is such power, what considerations are relevant in determining whether the power should be exercised.

[10] In considering these issues, we have had regard to the submissions put to the Commission by the parties in the two matters referred to the Full Bench by the President and the submissions presented by ACCI, AIG, and the ACTU.

[11] We have come to the conclusion that the power in s.586 of the Act does not allow the Commission to make the orders sought by the applicant to amend an unfair dismissal application so that it becomes a general protections application. There are two reasons for this conclusion. The first relates to the nature of the power conferred by s.586. The second relates to the limitations in s.725 on the making of multiple applications or complaints in relation to a dismissal.

[12] The orders sought by the applicant rely upon the powers provided to the Commission by s.586 of the Act. This section provides:

“586 Correcting and amending applications and documents etc.

The FWC may:

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to the FWC.”

[13] The powers under s.586 were considered by a Full Bench of the Commission in Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070 as follows:

“[35] There is a long history in predecessor statutes to the Act of provisions which are equivalent or at least similar to s.586. Section 41(1)(l) and (k) of the Conciliation and Arbitration Act 1904 (Cth) empowered the Conciliation and Arbitration Commission to “allow the amendment, on such terms as it thinks fit, of any proceedings” and to “correct, amend or waive any error, defect or irregularity, whether in substance or in form”. In Re Coldham; Ex parte BLF the High Court gave these provisions, together with the power to “extend any prescribed time” in s.41(1)(m), a wide field of operation so as to give effect to the statutory intention that proceedings before the Commission be directed to the merits and that technicalities and legal forms should not be regarded. These provisions were reproduced in s.111(1)(p), (q) and (r) respectively of the Industrial Relations Act 1988, and were retained in that Act upon its metamorphosis into the Workplace Relations Act 1996. The 2006 Work Choices manifestation of the Workplace Relations Act removed the general power to extend time, but retained the other powers in s.111(1)(l) and (m). The power to waive errors, defects or irregularities was used in a wide variety of circumstances as to both procedural and substantive matters: see, for example, Re Union of Christmas Island Workers; Re The Association of Professional Engineers, Scientists and Managers, Australia; Re Perth Bus Certified Agreement; Caruana v STA Pty Ltd; Boom Logistics/Employee Naval Base Industrial Agreement 2004/2005 and CPSU v Port Adelaide Training and Development Centre Incorporated t/as PATDC Employment and Training.

[36] Section 586(b) may be narrower than the previous provisions referred to, in that the waiver power is confined to matters of “form or manner” rather than “substance or ... form”. There is surprisingly little authority, outside the State constitutional context, as to what types of matters are encompassed by “form or manner” or like expressions such as “manner and form”. However, in O’Connor v Kinniburgh the New Zealand Supreme Court held that a statutory power to make regulations concerning the “form and manner” in which a thing is to be done may include requirements as to when the thing may be done.

[37]  In Tomlinson v Leveda Inc the Full Commission of the Industrial Relations Commission of South Australia observed that provisions of the same type as s.586(b) are “directed towards ameliorating the effect of a variance or failure to comply with a procedure specifically stated in the Act or Rules so that the Commission can proceed to deal with the real dispute between the parties without the limitations of procedural defects”.”

(references omitted)

[14] In Mihajlovic, the Full Bench decided that the premature filing of an unfair dismissal application constituted an irregularity in the manner in which the application was made and was capable of waiver under s.586(b) of the Act. 2

[15] The question as to whether s.586 allows the amendment of a s.394 application so that it becomes a s.365 application has not previously been considered by a Full Bench of the Commission, although there has been at least one decision of a single member of the Commission allowing such an amendment. 3 In other cases, applicants have decided to withdraw their unfair dismissal applications and to make fresh applications under s.365.4

[16] Where a new application is made under s.365, the application must be accompanied by the prescribed application fee (s.367 and reg.3.02 of the Fair Work Commission Regulations 2009) and must be made within 21 days after the dismissal took effect or within such further period as the Commission allows (s.366(1)). If an extension of time is sought, s.366(2) provides that the Commission may allow a further period in which to make the application if it 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.”

[17] In our view, the power in s.586 of the Act cannot be used to allow an amendment to an application that fundamentally changes the kind of application that was originally made. The amendment sought by the applicant requires a fundamental change to the kind of application originally made, by transforming an unfair dismissal application into an application under s.365, and might allow this to be done without the applicant meeting the procedural and other requirements set out in the Act for making of a general protections application.

[18] An unfair dismissal application under s.394 is fundamentally different to a general protections application under s.365, even though both may arise from the same set of circumstances involving the dismissal of an employee.

[19] The legislative scheme for an unfair dismissal application is quite distinct from that pertaining to a general protections application. 5 The matters for consideration by the Commission in determining whether there has been an unfair dismissal are specified in the Act6 as well as the remedies and relief available and the matters relevant to the determination of such remedies.7 The general protections provisions of the Act, in Chapter 3, Part 3-1 include a range of different protections (including in relation to workplace rights, industrial activities and discrimination) which are defined in the Act and which do not involve a broader assessment of “unfairness” or “harshness” against statutory criteria.

[20] The general protections are civil remedy provisions the contravention of which can lead to the imposition of financial penalties 8 and a reverse onus of proof applies in relation to the reasons for taking adverse action.9 The determination of general protections applications by a court involves the exercise of judicial power whereas the Commission exercises arbitral power in respect of s.394 applications. The remedies available are also different. A compensation order made by a court is not capped and is not contingent on reinstatement being inappropriate.10 Injunctive relief is also available.11 Further the discretion to allow a further period within which to make a s.365 application is exercisable subject to similar but not the same considerations.12

[21] Unlike in the courts, there is no general ability to apply to the Commission for relief. Applications can only be made to the Commission under specific provisions of the Act and there are jurisdictional, procedural and other requirements under the Act, the Regulations and the Rules which apply to different applications. Section 585 of the Act requires that an application to the Commission must be in accordance with the procedural rules relating to applications of that kind.

[22] Having regard to these considerations, we have serious reservations whether the power in s.586 of the Act can be relied upon to convert an unfair dismissal application into a general protections application. Section 586 does not provide a source of power to revoke or set aside an application.¹³ Neither does it, in our view, enable the Commission to “correct” or “amend” an application made under one type of statutory provision so that it becomes an application under a fundamentally different provision.

[23] The other reason for our conclusion relates to the provisions of Division 3, Subdivision B of Part 6-1 (Multiple Actions) of the Act. These provisions deal with cases involving a dismissal where more than one cause of action might be available for the same conduct or circumstances.

[24] We consider that the use of any power under s.586(a) of the Act to allow an unfair dismissal application to be converted into a general protections application is not permissible having regard to the multiple actions provisions of the Act. The exercise of the power under s.586 for the benefit of the applicant would achieve for the applicant indirectly that which is directly prohibited by the multiple actions provisions.

[25] The general rule in regard to applications and complaints relating to dismissal is set out in s.725. The effect of the section is to bar a person from bringing multiple actions in relation to the same dismissal. The section is in the following terms:

“725 General rule

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.”

[26] Section 729 deals with unfair dismissal applications:

“729 Unfair dismissal applications

(1) This section applies if:

(a) an unfair dismissal application has been made by the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction; or

(iii) failed because the FWC was satisfied that the dismissal was a case of genuine redundancy.

(2) An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal.”

[27] Section 727 deals with general protections Commission applications:

“727 General protections FWC applications

(1) This section applies if:

(a) a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction; or

(iii) resulted in the issue of a certificate under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful).

(2) A general protections FWC application is an application under section 365 for the FWC to deal with a dispute that relates to dismissal.”

[28] In relation to the present matter, the effect of s.725 is that the applicant must not make an application in relation to his dismissal under s.365 unless the unfair dismissal application has been withdrawn, failed for want of jurisdiction or failed because the dismissal was a case of genuine redundancy (s.729(1)(b)). In other words, s.725 of the Act operates to preclude the applicant from bringing a general protections application in circumstances where there is an extant s.394 application before the Commission.

[29] The applicant’s submission that the power in s.586 should be exercised so as to allow the applicant to pursue the “more appropriate” cause of action misses the point. The multiple action provisions are, for amongst other reasons, designed to allow that to happen. The Explanatory Memorandum to the Fair Work Bill 2008 makes this clear. It provides:

“2710. In all cases the anti-double dipping provisions will not apply where the initial application has:

• been withdrawn; or



• failed for want of jurisdiction.

2711. This is intended to ensure that a person does not miss out on a remedy because they were unable to make a competent application for another remedy or where they have realised another remedy may be more appropriate than the remedy they initially sought.” 14

[30] It follows from s.725 of the Act that the applicant is statutorily barred from making a general protections application unless the unfair dismissal application is withdrawn (or otherwise fails for jurisdiction reasons). Section 588 of the Act allows an applicant to discontinue an application in accordance with any procedural rules, whether or not the matter has been settled. Rule 10 of the Rules deals with the discontinuance of applications before the Commission by the applicant lodging a notice of discontinuance or giving appropriate notice that, inter alia, the applicant wishes to withdraw the application.

[31] The appropriate course for the applicant in the present matter to take if he seeks to pursue an application under s.365 of the Act in relation to his dismissal in lieu of the unfair dismissal application, is to withdraw the s.394 application and to file a s.365 application. In such circumstances, the appropriate procedural and other requirements under the Act for the making of the s.365 application will need to be met and an extension of time sought in accordance with s.366 of the Act.

[32] Given this conclusion, we do not need to deal with the submissions of the parties relating to the discretionary considerations which might be relevant in determining whether to make the orders sought by the applicant in these proceedings.

[33] For all the reasons given, we have decided not to make the orders sought.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms F Knowles of counsel appeared on behalf of the applicant.

Ms J Dolan appeared on behalf of the ACTU.

Ms N Mitrevski appeared on behalf of the respondent.

Mr B Ferguson appeared on behalf of the AIG.

Mr R Clancy appeared for the ACCI.

Hearing details:

2014:

Melbourne.

September 11.

 1   Etemi v Canterbury Child Care Centre [2011] FWA 5936; Rockhold v Cardno Emerging Markets (Australia) Pty Ltd [2013] FWC 4496; Talbot v O’Connor Haulage (ACT) Pty Ltd T/A O’Connor Haulage [2012] FWA 3969.

 2   Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070 at [47].

 3   See Densley v Maru Koala and Fauna Park [2013] FWC 1201

 4   See, e.g., Sandra McCudden v Omega Pharma Australia Pty Ltd T/A Omega Pharma [2014] FWC 4215.

 5   See Nicholas v Nortask Pty Ltd [2014] FWC 5324 at [38].

 6   See, in particular, ss.385 and 387.

 7   See ss.390-393.

 8   See s.539.

 9   See s.361.

 10   See s.545(2) (b), compare s. 392(5).

 11   See s.545(2)(a).

 12   See s.366(2)(a)-(e), compare s.394(3)(a)-(f); See also Shaw v Australia and New Zealand Banking Group Limited [2014] FWC 3903 at [10].

¹³ See Narayan v MW Engineers Pty Ltd [2013] FWCFB 2530 at [6].

 14   Fair Work Bill 2008 Explanatory Memorandum at [2710] - [2711].

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