DECISION

Fair Work Act 2009
Section 773 - Application to deal with an unlawful termination dispute

Mr Ryan Dempster
v
Interflow T/A Interflow Pty Ltd
(C2018/3725)

Unlawful termination application – whether application statute-barred – whether eligible to make general protections claim – whether application out of time – abandonment of employment – whether dismissal – constitutional corporation – application statute-barred – application dismissed

[1] Mr Ryan Dempster has applied to the Fair Work Commission (the Commission) under section 773 of the Fair Work Act 2009 (the FW Act) to deal with a dispute in which it is alleged that his former employer Interflow Pty Ltd dismissed him for an unlawful reason in contravention of section 772 of the FW Act. His application was lodged on 6 July 2018.

[2] Interflow Pty Ltd oppose the application and raises two jurisdictional issues: firstly, a contention that the application is statute-barred by section 723 of the FW Act on the ground that Mr Dempster was a person entitled to make a general protections court application in relation to his alleged dismissal; and secondly, that Mr Dempster lodged his application out of time (by three days) and should not be granted an extension of time. In making this submission the respondent also asserts that Mr Dempster abandoned his employment and was not terminated by his former employer.

[3] The respondent also submits that Mr Dempster was employed by Interflow Resources Pty Ltd, not Interflow Pty Ltd. On the evidence before me I am satisfied that Mr Dempster was employed by Interflow Resources Pty Ltd. I hereinafter refer to that company as ‘Interflow’ or ‘the employer’. Should it be necessary, I would be minded to grant leave for Mr Dempster to amend his application by substituting the name Interflow Resources Pty Ltd as the respondent to his application.

[4] On 19 July 2018 I directed that the jurisdictional issues be dealt with at a telephone hearing scheduled for 21 August 2018. I directed Mr Dempster and Interflow to file materials on the jurisdictional issues. I have received those materials.

[5] In his written submission Mr Dempster disputes that his application is statute-barred. He says that he received advice from the Legal Services Commission (Legal Aid) that an unlawful termination application was appropriate. He also says that he does not require an extension of time because the employer terminated his employment on 22 June 2018 and, as such, it was filed within 21 days.

[6] Interflow asserts that Mr Dempster was advised on 22 June 2018 that it considered that he had abandoned his employment on 12 June 2018. It asserts that his employment ceased on 12 June 2018.

[7] I heard the jurisdictional matters by telephone on 21 August 2018. Mr Dempster was self-represented, assisted by his father Mr Leake. Interflow was represented by its Human Resources Manager Mr Gover. I heard evidence from both Mr Dempster and from Mr Gove. I received documentary material from both parties.

[8] At the hearing’s conclusion, I reserved my decision.

[9] A sound file record of the hearing was made by the Commission.

[10] The jurisdictional hearing concerned multiple issues:

•  Whether Mr Dempster was a person entitled to make a general protections court application in relation to his alleged dismissal;

•  Whether Mr Dempster’s employment was terminated by the employer or whether he abandoned his employment;

•  If Mr Dempster was terminated, on what date was he terminated from his employment; and

•  If Mr Dempster requires an extension of time to make his application, whether an extension should be granted.

[11] Both Mr Dempster and Mr Gover gave evidence directly and thoughtfully. Allowing for some hearsay, the evidence of each is generally reliable and was presented to the best of their knowledge and belief. The relevant events were not long past by the hearing date. Where there is a factual difference, I rely on corroborative documentary evidence where it exists.

The Facts

[12] I make the following findings.

[13] Interflow is a private company operating in multiple jurisdictions in Australia and New Zealand. It provides repair, restoration and renewal services of deteriorated underground pipelines.

[14] Mr Dempster worked for Interflow for approximately seven years on pipeline restoration. Although based in Adelaide, from time to time his work would take him on the road with a crew in regional locations.

[15] Personal issues came to affect Mr Dempster’s work in the period leading up to June 2018. Those personal issues included a marriage separation, an ill young daughter and depression.

[16] By 8 June 2018 Interflow management were concerned about Mr Dempster’s health and wellbeing. Mr Gover and others met Mr Dempster on 8 June to discuss his readiness for continuing work. Mr Dempster indicated that he was clear to resume work when next rostered for the week of Tuesday 12 June to Friday 15 June 2018 inclusive (Monday 11 June being a public holiday). Mr Dempster was so rostered.

[17] Mr Dempster was due to commence work at approximately 7am on 12 June. He did not turn up for work. Company policy required an employee not able to attend work to call (not text) a supervisor or manager as soon as possible. Not until 1.53pm that day did Mr Dempster contact Interflow. He told his manager (Mr Siney) that his daughter was in hospital and that he could not come to work that day.

[18] On 13 June Mr Dempster did not turn up for work. At 6.02am a friend, Mr Willis rang Interflow and told Interflow (Mr Siney) that Mr Dempster had drunk excessive alcohol, passed out and would not be at work that day.

[19] On 14 June Mr Dempster did not turn up for work.

[20] On 15 June 2018 Mr Dempster did not turn up for work. Not until 6.24pm that evening did Mr Dempster contact Interflow. He told his manager (Mr Siney) that he would turn up for work next Monday 18 June. He was told not to bother as he would be receiving a letter on Monday 18 June to the effect that he had abandoned his employment.

[21] On Sunday 17 June 2018 Mr Dempster rang Interflow and spoke to his manager. He wanted to keep his job and sought to have the abandonment of employment letter not issued. He was told that the issue was out of his manager’s hands.

[22] On 18 June 2018 Mr Dempster received a letter from Mr Gover of Interflow. The letter referred to clause 11 of the Workplace Agreement covering his employment:

“ Abandonment of Employment

The absence of an employee from work for a continuous period exceeding (3) working days without the consent of the Company and without notification to the Company shall be prima facie evidence that the employee has abandoned their employment. Unless the employee can establish to the satisfaction of the Company that they were absent with reasonable cause within a period of seven (7) days, they shall be deemed to have abandoned their employment.”

[23] Mr Gover’s letter went on to say

“Please contact Geoff Siney…to explain your ongoing absence and establish to the satisfaction of the Company that you have been absent with reasonable clause otherwise we will assume that, in the absence of a formal notice of resignation form you in writing, you have abandoned your employment with Interflow Pty Ltd effective from 12 June 2018 and as such your employment contract is terminated from this date.”

[24] At 12.37pm on 18 June 2018 Mr Dempster phoned Interflow (Mr Siney) and explained that he had been absent for personal reasons and was not abandoning his employment.

[25] On 20 June 2018 Mr Dempster contacted the Legal Services Commission (Legal Aid) and sought advice on whether the employer could proceed to terminate his employment. He was told in general terms that he could have an action for unlawful dismissal based on personal or caring responsibilities.

[26] On 22 June 2018 Mr Dempster received a letter from Mr Gover of Interflow. The letter advised him that his contact with the company on 18 June “failed to account for your unexpected and unexplained absence and that this has caused considerable difficulties for your crew. We are also concerned for your personal wellbeing and whereabouts.” The letter went on to advise:

“In addition you have not attempted to contact Geoff since Monday, nor have you provided any information to support your continued absence from work. On this basis our letter of 18 June 2018 remains effective and our position is that you have abandoned your employment with Interflow Pty Ltd effective from 12 June 2018 and as such your employment contract is terminated from this date.”

[27] On 4 July 2018 Mr Dempster again contacted the Legal Services Commission (Legal Aid) and sought advice on the termination of his employment. He was again told in general terms that he could have an action for unlawful dismissal based on personal or caring responsibilities. He was advised to contact the Fair Work Commission.

[28] On 6 July 2018 Mr Dempster examined the on-line web-site of the Fair Work Commission. He says he read information about general protections and also about unlawful termination. He decided that the unlawful termination application was what he should file. He completed on-line a Form F9 ‘Application to the Commission to deal with an unlawful termination dispute.’ That application is the current proceedings.

[29] Mr Dempster also says that he had a telephone discussion with an officer of the Fair Work Commission though believes that this may have been after he lodged his application.

[30] Commission records indicate that Mr Dempster sent four emails to the Adelaide Registry of the Commission on the very late evening of Friday 6 July (10.38pm, 10.43pm, 11.48pm and 11.52pm). The final of these emails asked the Commission to contact him on a mobile phone number “asap regarding the dates I’ve attached on previous email”. On Monday 9 July an officer of the Adelaide Registry telephoned and spoke to Mr Dempster and advised that no application had been attached to his four emails of 6 July. His F9 application was then sent and received by the Adelaide Registry by email that day, 9 July.

Is Mr Dempster’s application statute-barred?

[31] Section 723 of the FW Act provides as follows:

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.

[32] An application under section 773 of the FW Act is “an unlawful termination application”. Mr Dempster has made an unlawful termination application in relation to the conduct that led to his employment ending.

[33] Was Mr Dempster “entitled to make a general protections court application” in relation to the conduct that brought his employment to an end?

[34] A “general protections court application” is defined in section 368(4) of the FW Act to be:

“an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.”

[35] Part 3-1 of the FW Act provides statutorily enshrined “general protections” for persons in connection to adverse action taken by an entity covered by that Part. The entities covered by that Part are set out in section 338 of the FW Act. This includes “a constitutionally-covered entity”. A “constitutionally-covered entity” includes “a constitutional corporation” (section 338(2)(a)). A “constitutional corporation” is defined by section 12 of the FW Act to mean “a corporation to which paragraph 51 (xx) of the Constitution applies”. Paragraph 51 (xx) of the Australian Constitution includes “trading or financial corporations formed within the limits of the Commonwealth.”

[36] The entity against whom Mr Dempster issued proceedings was Interflow Pty Ltd In the course of evidence before me it appears that the conduct he complains of was taken by his employer, Interflow Resources Pty Ltd (although some of the employer’s correspondence also refers to Interflow Pty Ltd). For present purposes, this distinction is not material. Both Interflow Pty Ltd and Interflow Resources Pty Ltd are trading corporations formed within the limits of the Commonwealth. Each is a private company undertaking trade and commerce in the Australian jurisdiction. As such, each is a “constitutional corporation” as defined by the FW Act. Actions by either of those entities are governed by Part 3-1 of the FW Act.

[37] The conduct complained of by Mr Dempster in his application alleges breaches of section 772 of the FW Act. That conduct is actionable as general protections conduct within the meaning of Divisions 3, 4, 5 and 6 of Part 3-1 of the FW Act. In particular section 351 (Part 3-1 Division 5) prohibits conduct that discriminates on the ground of family responsibilities. Other forms of conduct referenced by Mr Dempster in his application are similarly covered.

[38] Accordingly, Mr Dempster was a person entitled to make a general protections court application because the companies he takes issue with were covered by that Part of the FW Act which concern general protections and because the conduct he complains of was capable of being actioned in a general protections application.

[39] Mr Dempster was entitled to have made an application under section 365 of the FW Act (a general protections application) but has in fact made an application under section 773 of the Act, and that application is his only proceeding currently before the Commission.

[40] Being a person entitled to make a general protections court application, section 723 of the FW Act provides that Mr Dempster “must not make” a section 773 application.

[41] Having done so, Mr Dempster’s application is statute-barred. In a legal sense, it is not competent. 1 Thus the Commission has no jurisdiction to further hear and determine the application.

[42] I appreciate that Mr Dempster is not legally qualified, held a genuine grievance concerning the manner in which his employment ended, sought to exercise legal rights and sought some legal guidance in advance of filing his application. However, section 723 of the FW Act does not provide the Commission with a discretion to proceed to determine a matter that is statute-barred and not competent before it, notwithstanding these factors.

[43] In these circumstances, I am unable to determine the further questions arising whether Mr Dempster’s employment was terminated by the employer or whether he abandoned his employment, or whether he requires an extension of time and whether an extension should be granted.

Conclusion

[44] As a result of Mr Dempster’s section 773 application being statute-barred it must be dismissed. An order to that effect is issued in conjunction with the publication of this decision.

DEPUTY PRESIDENT

Appearances:

Mr Ryan Dempster and Mr Robert Leake, for the Applicant

Mr Keith Gover, for the Respondent

Hearing details:

21 August 2018, in Chambers

 1   Pitrau v Barrick Mining Services Pty Ltd [2012] FMCA 186 at [45] – [46]

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