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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
SENIOR DEPUTY PRESIDENT DRAKE
DEPUTY PRESIDENT ASBURY
COMMISSIONER SAUNDERS
C2016/4915
s.604 - Appeal of decisions
Hazledine v Wakerley & Giddings
(C2016/4915)
Sydney
11.42 AM, TUESDAY, 6 SEPTEMBER 2016
PN1
SENIOR DEPUTY PRESIDENT DRAKE: Thank you. Can I have your appearances, please?
PN2
MR M HARMER: May it please the Commission, Harmer, initial M, appearing with permission for the applicant, and just note that the applicant is in Adelaide, and thank the Commission for the arrangements on the video‑conferencing. May it please the Commission.
PN3
SENIOR DEPUTY PRESIDENT DRAKE: Thank you. Ms Hazledine, are you in Adelaide?
PN4
MS HAZLEDINE: Yes, I am.
PN5
SENIOR DEPUTY PRESIDENT DRAKE: Can you hear us?
PN6
MS HAZLEDINE: Yes, perfectly well, thank you.
PN7
SENIOR DEPUTY PRESIDENT DRAKE: Thank you. And in Melbourne?
PN8
MS R NELSON: If the Commission pleases, I seek permission to appear on behalf of the respondent. My name is Nelson, initial R.
PN9
SENIOR DEPUTY PRESIDENT DRAKE: Thank you. Permission has already been granted.
PN10
MS NELSON: If I could just indicate to the Commission, I am having a little bit of difficulty hearing the Commission, and particularly Mr Harmer.
PN11
SENIOR DEPUTY PRESIDENT DRAKE: Mr Harmer, could you take the microphone closer to yourself, thanks.
PN12
MR HARMER: Yes. Is that any better, Ms Nelson?
PN13
MS NELSON: Yes. Thank you, Mr Harmer.
PN14
SENIOR DEPUTY PRESIDENT DRAKE: So perhaps when you're addressing the Commission, if you stand closer to the microphone.
PN15
MR HARMER: Yes. Thank you.
PN16
SENIOR DEPUTY PRESIDENT DRAKE: Mr Harmer?
PN17
MR HARMER: Thank you, your Honour. This matter comes before the Commission by way of an appeal, and particularly an application for permission to appeal against a decision at first instance. The underlying issue relates to Ms Hazledine allegedly having, during the course of her employment with AJG raised issues of pay equity, raised issues of alleged bullying and a sexually hostile work environment, allegedly facing rape in her domestic circumstances and so as a victim of domestic violence, she needed the support of her job; that was her solace, and it's alleged that rather than support her, her job was removed from under her.
PN18
In that factual background, Ms Hazledine seeks to pursue not only remedies against her employer, which is one line of claim, but also importantly, remedies against two managers, one Mr Wakerley, her immediate supervising manager, and the second, Mr Giddings, a HR manager, for their respective contribution to what she alleges happened to her as a result of incidents at work. She did, in response to those various incidents after her dismissal, lodge with the Australian Human Rights Commission a claim solely against - I emphasise solely against - AJG, the employer, and in the Fair Work Commission, pursuant to the provisions that allow the pursuit of civil penalties against managers, she lodged against the two managers.
PN19
In our respectful submission, the major public interest issue that arises by way of general application is that this decision which goes to the jurisdiction of the Commission at first instance has the potential to deter other applicants, not just this applicant but other applicants, from accessing avenues for relief which the legislature has seen fit to leave open. In that regard, if I can just briefly summarise those.
PN20
The first relates to the claim to the Fair Work Commission for civil penalties against two managers. Now, in our respectful submission, that's a very important avenue because Ms Hazledine and indeed, other applicants, may seek not only to deter future conduct by an employer, but may also seek to deter future conduct by members of management and the legislature in the Fair Work Act, particular via section 362 which relates to inciting, if you like, adverse action or a breach of the general protections, and the accessorial provisions, strong ones, in section 550, has deliberately opened up avenues for employees, via the Fair Work Commission and then eventually via the Federal Court or the Federal Circuit Court, to pursue the civil penalties against members of management.
PN21
In our respectful submission, it's important to note that those same civil remedies are not available anywhere in the Human Rights legislation. There are victimisation provisions which I can take the Commission to, but they appear within the category of an offence and they can be pursued in terms of the penalty by way of criminal penalty by the Department of Public Prosecutions, but there is no standing whatsoever for Ms Hazledine to pursue those criminal penalties against these two members of management.
PN22
So it's very important in this matter and more generally that there is a standalone, deliberately created legislative right under the Fair Work Act to pursue these penalties against members of management. Now, completely separate to that, the legislature has also seen fit in respect of actions against employers to leave open to individual litigants a choice between pursuing discrimination under section 351, for example, of the Fair Work Ac, or discrimination pursuant to various pieces of Human Rights legislation such as the Sex Discrimination Act or the Disability Discrimination Act in this case.
PN23
That choice is important if we take some of the benefits of pursuing the Human Rights avenue, for example. That is a cross jurisdiction, whereas the Fair Work Act is a non‑cross jurisdiction which can be important if an applicant does not seek to see the remedy that she aspires towards eaten up by the very process of going through the court. It's also advantageous because the Human Rights Commission, for example in circumstances where Ms Hazledine has alleged both direct and indirect discrimination under the Disability Discrimination Act, for example, the Disability Discrimination Act imposes in sections 5 and 6 a positive obligation to make reasonable adjustments.
PN24
Whereas in relation to section 351, the decision of Kabuck that we've included in our set of authorities at paragraph 73 properly concludes that the Fair Work Act specifically does not include a positive obligation to make reasonable adjustments. There is also a stronger history and more express provisions for relief in the way of reform orders under the Human Rights legislation, be it sex discrimination or disability discrimination, than exists under the Fair Work Act.
PN25
So there are important differences that a particular applicant may or may not wish to take advantage of in pursuing the Human Rights legislation avenue for their case against the employer, and in circumstances where there are no civil penalty provisions available whatsoever under the Human Rights legislation, it's only a matter for the DPP by way of criminal penalty, to pursue civil penalties that are properly open via the provision of the legislature under the Fair Work Act.
PN26
So what we say are the practical consequences is that not only does this decision cut down the scope of the Commission's jurisdiction purportedly in relation to this applicant, but it also deters others who may seek, properly, to seek a civil penalty against a manager that they have a difficulty with, as is available, but this decision seems to mean that if they do that they cannot then access the choice otherwise available to go to the Human Rights Commission against the employer.
PN27
Or if they start in the Human Rights Commission against the employer, this decision would mean that they cannot then take any case at all by way of civil penalty against the managers. Yet, if they took both a claim under general protections under the Fair Work Act and pursued those same civil penalties against the managers under the Fair Work Act, there seems to be no issue.
PN28
That seems anomalous and what we say is that it's clearly not the purpose of the double-dipping provisions in the sections 725 through to 734 of the Act, that those practical cut-downs of the Commission's jurisdiction and the practical deterring of individual applicants from pursuing the strength of their Human Rights legislation against the employer, and the only available civil penalty is against the employee, that somehow that is a double‑dip, and yet we have separate respondents, separate causes of action, separate specific relief sought.
PN29
Where is the doubling-up that the purpose of the double‑dipping legislation is aimed to deter? We say that's an important issue of general application and when one looks at the purpose and context of sections 725 through to 734, they all involve this notion of in relation to the dismissal. If you go to the definition of dismissal under the Fair Work Act in section 12, it refers back to section 386. Section 386 is all about a dismissal by the conduct of the employer, whether actual or constructive. It's always by the conduct of the employer.
PN30
We say clearly the double-dipping provisions in the Fair Work legislation are aimed to preclude a double-dip against the employer, and indeed, all the authorities that the tribunal will see today relate purely to where there is one case against the employer, for example, in the Fair Work legislation and a case against the same employer under Human Rights legislation, not a case against totally separate respondents, being the managers.
PN31
We say that's an important public interest issue going to the scope of the Commission's jurisdiction to not deterring applicants from pursuing perfectly available legislative avenues. We do say that, here, there is sufficient doubt regarding the first instance decision in that in our respectful submission, what is being put forward by way of effect that is precluding the pursuit of the separate remedies against the managers just because you've pursued your Human Rights separately against the employer, is right outside the context and purpose of sections 725 to 734, as outlined in Birch and JB Hi-Fi which are other decisions that we have referred to in our list of authorities.
PN32
By way of context, if one looks at it, section 365 relates to dismissal, yes. Section 351 relates to adverse action by reason of some discriminatory ground and one of those mechanisms of adverse action under section 342 is dismissal. As I say, dismissal has only one meaning and one definition under the Act. That's conduct by the employer, and when you go to section 725 and all the sections that follow, they all relate to dismissal; again, conduct by the employer. So in context and purpose, the provisions relate to double-dipping against the employer. One Fair Work case, one Human Rights case against the one employer.
PN33
It is not intended to preclude the legislatively determined, separate avenue of civil penalties against managers, and yet that is what is being purported to be precluded by this first instance decision. So here we have separate respondents, that is, we've included the original application which attached the Human Rights Commission complaint and the complaint form. The Commission will observe - I think that's at tab 9 of the materials we have provided - that there's only one respondent to the Human Rights Commission complaint. That's the employer. That's it.
PN34
When one goes to the Fair Work Commission application, there's only two respondents, two managers. The employer is not touched. So where is the double-dip against the employer?
PN35
COMMISSIONER SAUNDERS: Mr Harmer, in relation to the Fair Work Commission proceedings against the two individual managers, is the only adverse action alleged the dismissal of Ms Hazledine?
PN36
MR HARMER: No, with respect. The course of conduct ranges over a period of around some 18 months and further back if we take the pay equity issue. The most serious events and the one that caused the psychological collapse of Ms Hazledine was during the course of employment where she was forced out after she had this domestic violence issue and it was alleged that she could either leave the employer or be performance managed out because her performance was allegedly down after this domestic violence.
PN37
So all of that occurred during 2015 and there were various alleged sexually hostile and bullying incidents during the course of that year and at the end of 2014, but the actual dismissal occurred in 2016. So there's quite a long chain addressed in both the Human Rights case and the Fair Work case.
PN38
COMMISSIONER SAUNDERS: But in terms of the adverse action, obviously dismissal is part of the adverse action you point to?
PN39
MR HARMER: We quite acknowledge that.
PN40
COMMISSIONER SAUNDERS: What other adverse action do you say took place?
PN41
MR HARMER: Well, discrimination, the 351, in the form of the bullying and the sexually hostile work environment.
PN42
COMMISSIONER SAUNDERS: Prior to termination?
PN43
MR HARMER: Prior to termination, from 2014 ranging through to 2016, but the actual dismissal in 2016, we acknowledge, is one example of the adverse action. We don't step away from the fact that we allege that each of the two managers had a hand in the dismissal. All we say is that the actual case relating to the dismissal is against the employer and Human Rights and the case relating to the two managers pursue civil penalties in Fair Work.
PN44
COMMISSIONER SAUNDERS: But in terms of the case against the two managers, do you just rely on their conduct of being involved in the dismissal, or do you rely on their conduct at an earlier point in time?
PN45
MR HARMER: Right through the whole history. So we acknowledge that there's parallel facts, but what we say is that the test is not one of matching facts, the test is what is the purpose and context that breathes, if you like, rationale into the double-dipping provisions and we say this does not fit into that purpose or context. So on this issue of separate respondents, the one case where there were separate respondents, Krongold, which we've included in the set of authorities, Gooley DP - so this is the second case in amongst the series that we've put up in our set of authorities - did actually conclude that where there was action against an individual in one avenue and against the corporate employer or the corporate entity in another jurisdiction, that that did not invoke the 725 issues and that observation is made at paragraph 9 under the heading, "Consideration", in that decision of Deputy President Gooley in June 2013 in Krongold, where she notes at 9 that the general protections dismissal application before the Commission names two respondents: an individual and then a corporate entity for Mountain Gate Dental Clinic. There is no compliant to the AHRC against the Mountain Gate Dental Clinic. As such there is no jurisdictional impediment to the certificate issuing against that entity.
PN46
There was there a separate complaint against the individual, Dr Leibowitz. Now, I just ask the Commission to note that in the decision at first instance, when attempting to distinguish that particular decision, his Honour at paragraph 37 asserts that that decision can be distinguished because in Krongold the individual is involved in both Fair Work and Human Rights. But it's asserted at paragraph 37 that both Mr Wakeley and Mr Giddings are captured by the AHRC complaint by reference to the earlier letter of demand. Now, as I pointed out, if you have a look at the Human Rights Commission application, the only respondent is the employer; the only respondent.
PN47
So there is a clear error on the facts there at 37. Even if it wasn't otherwise wrong in law. So we say that that issue of separate respondents where you're purporting that the double dip applies to managers rather than the employer is contrary to the meaning of dismissal under the Act and contrary to the purpose. Secondly there is different causes of action than in section 362 and 550 and thirdly there is different remedies or relief sought and we've specifically pointed to the civil penalties that can only be sought against the managers. So we say that this notion of separate respondents, separate causes of action and separate remedies or relief takes it so far outside the intended purpose of section 725 through to 734 that the Commission would be satisfied on a final basis that there has been a fundamental error of law and of jurisdiction.
PN48
In terms of leave or permission to appeal, because that decision at first instance potentially cuts a swathe through the practical implications that I've pointed to, you just cannot pursue managers if you go the employer in the Human Rights Commission or if you go the managers in the Fair Work Commission you lose your rights in the Human Rights Commission. Those clear choices that the legislature has left open for good reason, because they serve different purposes that different litigants may want to pursue. That is so outside the purpose and so limits what litigants could do now, versus prior to this decision that it is a matter of general public interest and general application.
PN49
SENIOR DEPUTY PRESIDENT DRAKE: So you say that the only way they can be both pursued is if they're both pursued in the same jurisdiction?
PN50
MR HARMER: Your Honour, just on the practical lead-out of that: these two matters as initiated - the one in the Fair Work Commission and the Human Rights Commission, Fair Work Commission managers, Human Rights Commission employer - all end up in the Federal Court in this matter. So we'll go to the Federal Court. We'll seek to have the matters run concurrently or to be joined and the court will determine what the employer must meet and what the managers must meet in terms of their penalties.
PN51
SENIOR DEPUTY PRESIDENT DRAKE: If you hadn't done it this way - in which you have proceeded - if you are not entitled to do that, that is the result.
PN52
MR HARMER: Yes.
PN53
SENIOR DEPUTY PRESIDENT DRAKE: Then the only way in which the applicant could pursue both managers and the employer would be if they were both taken to the Human Rights Commission or both taken to the Commission; is that right?
PN54
MR HARMER: Yes, yes, your Honour; and what we say is 725 clearly doesn't specify a choice of jurisdiction. It goes to double-dipping against the employer. The deliberately left open separate civil penalties only available in Fair Work should not be precluded just because you pursue a stronger remedy in Human Rights against the employer. So that is the essence.
PN55
SENIOR DEPUTY PRESIDENT DRAKE: I understand - thank you, Mr Harmer. Sorry.
PN56
DEPUTY PRESIDENT ASBURY: Mr Harmer, can I just ask - does the general protections application in terms of the adverse action - what else does it plead, other than the dismissal?
PN57
MR HARMER: Keeping in mind that all we've done is notify the dispute as opposed to plead it at the moment - - -
PN58
DEPUTY PRESIDENT ASBURY: Well, the matters - because there is authority that the matters that are set out in the application - I accept you're not limited if you take it further. But what else - what is said in relation to the adverse action other than the dismissal - - -
PN59
MR HARMER: Yes.
PN60
DEPUTY PRESIDENT ASBURY: - - because it would be one thing to say the employer dismissed, therefore we can take an application against the employer but managers of the employer demoted, downgraded, disciplined, did something that had an impact prior to the dismissal and that is generally the context in which it arises. So what is said about the adverse action in the general protections application?
PN61
MR HARMER: We acknowledge that the adverse action alleged accessorily against the managers spans from about 2014 to 2016 and involves not only the dismissal, which we certainly allege they had a hand in, but also bullying and sexually adverse conduct, et cetera, throughout a long period of time. So we've asserted all of that against the employer and under accessorial liability we've asserted against the two key managers who played a hand in that. So we don't step away from the fact that the underlying substratum of facts is common, if you like, and the allegations are common, but we're pursuing separate respondents, separate causes of action and separate remedies and we say that's not caught by the double dip against employers in 725.
PN62
DEPUTY PRESIDENT ASBURY: Other than the dismissal, what damage does the appellant say arose as a result of the adverse action?
PN63
MR HARMER: The major harm to the appellant occurred during the course of the employment, some 10 months prior to the dismissal, where she alleges that she was raped in her domestic life at home; that she desperately needed as her only solace the stability of her employment and that this employer and these managers took that out from under her and she suffered a complete psychological collapse at that point in time and she still suffers from that today. Now, thereafter there were steps taken to indicate to her that she could - if she came back she would be performance-managed out and she didn't return to work. She remained unwell and she was then dismissed some 10 months later.
PN64
So the major harm actually arose during the course of the employment, due to that lack of support at a vital time and the applicant said that happened because she had a history of complaining about women's rights, pay equity, a sexually hostile work environment. She pushed back against the lack of support she was getting and the discrimination she was feeling after she experienced rape in her domestic life or domestic violence, alleged, and as I say the major harm occurred when she was victimised rather than supported in those circumstances. So that's the factual scenario and we don't step away from the fact that two managers played a key hand in all of that but the employer separately obviously played a role in all of that.
PN65
It's the fact that we seek penalties against the managers to deter them; we seek other remedies against the employer and the tribunal may be aware that there is a question mark under section 550 of the Act, as to whether one can go beyond penalties at all. The explanatory memorandum suggests that 550 of the Act brings in accessorial liability to the extent of the contravention for purposes of penalties but doesn't necessarily open up the managers to a contribution to compensation.
PN66
DEPUTY PRESIDENT ASBURY: So you're saying that all you might be left with in relation to the general protections application is the civil penalty orders? Because it would seem that if you do the analysis that Deputy President Kovacic did that every resolution sought is identical except for civil penalty orders against the two named managers.
PN67
MR HARMER: That's correct, yes. That table at paragraph 33 - we don't deny that we are trying to pursue that and indeed, that's a part of the law that we want to try and clarify but we have to acknowledge the explanatory memorandum is against us on everything on that list other than civil penalties in relation to the Fair Work case. But all of it, including reform orders, is open against the employer in Human Rights. What we're saying is the legislature exhibits no intention to preclude those separate, discrete remedies being properly pursued against respectively an employer under Human Rights, and managers, separate respondents, separate course of action and separate relief under Fair Work.
PN68
DEPUTY PRESIDENT ASBURY: So you're saying that if - I mean, the case that you've tendered, the Qantas v Lawless case is authority for the proposition that you focus on remedy and see that you're not seeking the same remedy in the two separate proceedings. So you would say that the fact you're seeking - you seem to be seeking the same remedies, really, it's precautionary to seek those remedies in the general protections application and you be left with only being able to seek civil penalty?
PN69
MR HARMER: Yes. Based on the explanatory memorandum the most likely outcome is that we would be limited to only civil penalties against the managers. Now, while we might want to contest that in terms of testing the law, that's what we stand up against. The Qantas decision is actually a case the respondents have put forward but it's an important case because it involves a full bench. But what that case goes to as we understand it again is that context and purpose are everything and the context and purpose points to a double dip remedy against the employer. All the cases - Qantas - all the cases that are listed by both parties here have that situation of the employer facing two separate remedies in two separate lines of jurisdiction.
PN70
DEPUTY PRESIDENT ASBURY: So there is no full bench authority that you can point to in this Commission where the concept of seeking a remedy against named individuals and an employer has been - and the consequences in relation to the multiple actions provision has been considered?
PN71
MR HARMER: That's correct and the only case we can find on that is Krongold where her Honour Deputy President Gooley went the other way and said, look, where there is the employer in one place and the individual in another it just doesn't arise.
PN72
DEPUTY PRESIDENT ASBURY: Okay. Thank you.
PN73
MR HARMER: Thank you. Unless the tribunal has any further questions, that concludes our submissions. I'm happy to go into the cases more but I think we've asserted the public interest issue.
PN74
SENIOR DEPUTY PRESIDENT DRAKE: Thank you, Mr Harmer.
PN75
MR HARMER: May it please the tribunal.
SENIOR DEPUTY PRESIDENT DRAKE: I've marked your submissions in relation to permission to appeal Appellant 1.
EXHIBIT #APPELLANT1 SUBMISSIONS ON BEHALF OF THE APPELLANT
PN77
SENIOR DEPUTY PRESIDENT DRAKE: Ms Nelson, you've not filed any submissions, have you?
PN78
MS NELSON: No, your Honour, there was no order for the respondent to file written submissions in relation - - -
PN79
SENIOR DEPUTY PRESIDENT DRAKE: I'm just checking.
PN80
MS NELSON: Yes. If it's convenient to the full bench, I'm aware that the general protections application itself is not contained in the appeal book. I'm not sure if the full bench does have a copy of that available?
PN81
SENIOR DEPUTY PRESIDENT DRAKE: Yes, we do.
PN82
MS NELSON: If I could start there with - - -
PN83
SENIOR DEPUTY PRESIDENT DRAKE: Just one moment - have you got the original file there?
PN84
MR HARMER: If I may assist, is that tab 9 of the materials we've also provided? I apologise. That's a fairly bulky -- -
PN85
DEPUTY PRESIDENT ASBURY: I don't have a tab 9, Mr Harmer. Mine stops at tab 5.
PN86
MR HARMER: We actually filed these in hard copy yesterday.
PN87
SENIOR DEPUTY PRESIDENT DRAKE: Well, they haven't made it to the bench, I'm sorry.
PN88
MR HARMER: I apologise for that.
PN89
SENIOR DEPUTY PRESIDENT DRAKE: We'll just go downstairs and get them but in any event, I have the original file here.
PN90
MR HARMER: Thank you.
PN91
SENIOR DEPUTY PRESIDENT DRAKE: Yes. Is there anything that we should - - -
PN92
MS NELSON: Yes, if I could take you through it in some detail, your Honour - - -
PN93
SENIOR DEPUTY PRESIDENT DRAKE: No, not yet - I'm sorry to keep interrupting you but we just want to make sure we've got the folders that have arrived and haven't been brought to us with us, because you'll be addressing the material in them, will you not?
PN94
MS NELSON: No, your Honour; I don't have a copy of any of that material?
PN95
DEPUTY PRESIDENT ASBURY: But you will be addressing the actual general protections application?
PN96
MS NELSON: Yes, your Honour.
PN97
DEPUTY PRESIDENT ASBURY: Yes, we should - - -
PN98
SENIOR DEPUTY PRESIDENT DRAKE: Yes, well, we'll just take a short adjournment until the materials have been located of if there's any difficulty in that we'll photocopy from the original file of the general protections application. If you would remain in the hearing room, Ms Nelson and Mr Harmer, we'll return as soon as we have our hands on that material.
PN99
MR HARMER: If it please the tribunal.
SHORT ADJOURNMENT [12.15 PM]
RESUMED [12.40 PM]
PN100
SENIOR DEPUTY PRESIDENT DRAKE: Thank you. Mr Harmer, we've located the folders. They really should have been provided earlier than yesterday afternoon.
PN101
MR HARMER: I apologise, your Honour. I also apologise that I proceeded with my submissions without enquiring that you actually had them there.
PN102
SENIOR DEPUTY PRESIDENT DRAKE: That's all right. We've now located them, and for your benefit, we have in fact extracted and photocopied the general protections application that was the originating process. I had my microphone the other way, sorry. We have located the general protections application which was the originating process and we all now have a copy before us.
PN103
MS NELSON: Thank you, your Honour. Your Honour, the Commissioner and I think other members of the Full Bench raised with Mr Harmer what else was his application, general protections application about, other than termination, and Mr Harmer proceeded to answer in a way which made this case a very different one to the application heard by the Deputy President. If I can take you to the appeal book at page 17, which is the transcript - - -
PN104
SENIOR DEPUTY PRESIDENT DRAKE: I think, Ms Nelson, it would help if you moved your microphone too. Thank you.
PN105
MS NELSON: Sorry, your Honour. Is that of any assistance?
PN106
SENIOR DEPUTY PRESIDENT DRAKE: Yes, it is. So we're looking at the appeal book?
PN107
MS NELSON: Yes, your Honour. At page 17, and if I could ask the Full Bench to have the general protections application side-by-side with the page of the transcript because what occurred before the Deputy President was an analysis of what this general protections application is about, and you will see that starts at page 17. At that point, the Deputy President was taken to the general protections application and you'll see at line 1, with recognition of what her Honour had said in Shea about the broad articulation of claims, these aspects.
PN108
So the claim, the general protections application, was worked through at this point of the transcript, and if I can do the same thing, you'll see at 1.1 the date of dismissal, at 1.2 the date of employment, and then at 1.3 "What reasons for dismissing you", and you'll see there's a reference to "Please see attached schedule." Then in the transcript you'll see the Deputy President was taken to the alleged contraventions under 3.1, and again, "Please see attached schedule", and "How have the actions have contravened the section at 3.3, please see attached schedule."
PN109
If I take you to the schedule, but if I can first take you to section 3.2 because in response to what breaches were alleged today, Mr Harmer suggested to the Full Bench that there were allegations of discrimination under section 351 and other matters raised in the general protections application. That's not correct. All that was alleged in the general protections application were breaches of section 362 and 550, and then a reference to an attached schedule. That attached schedule starts after the end of the form F8 and it's headed, "Schedule for general protections application", and you'll see at transcript 17, this schedule was worked through.
PN110
At PN12, the bottom of that paragraph, the complaint against the two people pursuant to sections 362 and 550, and you'll see the bold heading in the middle of the page says "Termination". The Deputy President was taken through paragraph 2.2, the letter that terminated the employment, and "Accordingly, Ms Hazledine contends that Mr Giddings and Mr Wakerley have further contravened section 362 and 550 in relation to the termination of Ms Hazledine's employment."
PN111
Now, the schedule also attached what was described as a letter of demand which was a long letter from Harmers Workplace Lawyers to Sparke Helmore Lawyers dated 21 December 2015. That's a quite long letter and then it also attached the Human Rights Commission complaint which in the same way had a similar schedule and referred to that letter of demand. The proceeding before the Deputy President proceeded on the basis that this was what the general protections application was about. There was no allegation there raised by Mr Harmer in the transcript or anywhere that it was misconceived, what was understood by the respondents as to what the general protections application was about.
PN112
The arguments put were twofold; first, that the Fair Work Commission application had been the first in time application and therefore section 725 didn't apply, and the Deputy President deals with that in his decision and I'll come to that issue. The other argument raised as to why section 725 didn't apply was this argument that's being pursued, that dismissal somehow requires the definition of "dismissed", including conduct of the employer to be raised.
PN113
Those points were raised by Mr Harmer at appeal book 30 in the transcript, where he starts his submissions in relation to section 725. He then went on at appeal book 34 to say - and this is at PN139 at the bottom of the page:
PN114
The distinction that we point to is that the legislation said it was in relation to termination of employment. That would be a totally different factor to saying it's in relation to a dismissal.
PN115
It then goes on at appeal book 38 to say, this is the nub of our case, at PN164:
PN116
Section 725 and the provisions that follow all deal with double-dipping in relation to a dismissal.
PN117
Again, he continued with the argument that dismissal did not mean termination and that the double-dipping didn't prevent proceeding against two people. It wasn't at any point in the transcript that said, "No, no, Deputy President, the respondents are entirely incorrect, this is about Ms Hazledine's pay equity disputes and her domestic violence situation." Nowhere was that put, and it's quite a different proposition that's being put to you today about what the general protections application was about.
PN118
We say that doesn't matter because the public interest doesn't arise merely by the arguments put this morning that there is some deterrence by this decision in people double‑dipping. What must be shown is that the deterrence arises due to some incorrect decision of the Deputy President, and it's the respondents' position that there is no doubt that the correct test was applied by the Deputy President and in those situations, there is no substantial injustice that can arise either to the appellant or to anyone else by proper application of the law.
PN119
If I can take the Full Bench firstly, then, in talking about the object of section 725, to the explanatory memorandum to the Fair Work Act which is understand is incorporated in that bundle of materials that you've been provided by the appellant. I'm not sure of what numbered tab it's under.
PN120
MR HARMER: Tab 8.
PN121
MS NELSON: Thank you.
PN122
SENIOR DEPUTY PRESIDENT DRAKE: Sorry?
PN123
MR HARMER: Sorry, it's tab 8.
PN124
SENIOR DEPUTY PRESIDENT DRAKE: Thank you.
PN125
MS NELSON: The explanatory memorandum, the pages I understand, are incorporated at pages 406 through to 410. Does the Full Bench have that extract?
PN126
SENIOR DEPUTY PRESIDENT DRAKE: Yes, we do.
PN127
MS NELSON: If I can take the Full Bench to page 408, and this was a matter of submission before the Deputy President. It explains the double-dipping provision, and makes clear what this part is meant to do, is to prevent a person double-dipping when they have multiple potential remedies relating to a dismissal from employment by seeking to limit a person to a single remedy. It's not about preventing a person from single remedies against different respondents, it's about limiting in a personal sense the remedy that a person has.
PN128
That's exactly the way in which the Deputy President approached this question and quite properly he applied the test in Birch that the Full Bench was referred to this morning, and I'll come to that. But first, what is said against the Deputy President's decision is that it is, on its face, attended with sufficient doubt. The appellant says the Deputy President reached the conclusion, meaning the conclusion that section 725 operated as a bar to the general protections application, based on his assessment of the relationship between the applicant's general protections application and the applicant's AHRC complaint.
PN129
In respect of that submission, there's a footnote which refers to page 5 of the decision. That submission misrepresents entirely what the Deputy President said. The Deputy President properly applied the test that he ought have and if I can take your Honours to paragraph 5 of the decision and that's at appeal book page 2. What the Deputy President did, and states clearly at paragraph 5, is that:
PN130
For the reasons set out below, I have concluded that Ms Hazledine's general protections application was made after her AHRC complaint -
PN131
That was the first point in issue before the Deputy President, which application was first in time:
PN132
- and had been made in relation to her dismissal.
PN133
SENIOR DEPUTY PRESIDENT DRAKE: I'm sorry, "and had been made"?
PN134
MS NELSON: "In relation to her dismissal." So the two threshold points that were before the Deputy President were which application was first in time and was the general protections application in relation to her dismissal, and at paragraph 5, the Deputy President claimed, yes, it was first in time and in relation to her dismissal, and I'll explain - and he then says, "For the reasons below". The Deputy President then, at paragraphs 6 to 9 of the decision, sets out the background to the complaint and the application and at paragraph 10 of the decision, the statutory framework.
PN135
He then very properly at paragraphs 14 and 15 considered the arguments raised by both parties before him, and particularly if I can take the Full Bench to paragraph 14 of the decision, that's at appeal book 6, he considered the arguments raised by Ms Hazledine before him:
PN136
She contended that her general protections application is not one in relation to her dismissal in the relevant sense. Ms Hazledine further contended her application was brought against her former employer, AJG, but against two individuals, neither of whom employed her. To that end, Ms Hazledine submitted her general protections application did not fit within the description of an application or complaint in relation to her dismissal.
PN137
He goes on:
PN138
She further submitted that the fact that her general application was brought against different respondents was found to preclude a jurisdictional impediment.
PN139
So all of these matters were properly considered by the Deputy President. From paragraph 21, the Deputy President, page 9 of the appeal book, properly applied the test of Birch v Wesco Electrics, and again at paragraph 22, set out the threshold issues that needed to be considered in that context. First, whether she made her general protections application after making her AHRC complaint, and second, whether it was in relation to her dismissal. In relation to the first point, the first point of the timing of the two applications is no longer in dispute, as I understand it. It's certainly not raised on this appeal.
PN140
No evidence was led at the hearing to support the contention that the general protections application was first in time, and it's noted by the Deputy President at paragraph 25 of the decision, which is at appeal book 10, that despite two opportunities provided to the appellant to lead such evidence, none was led. Instead, at paragraph 26, the Deputy President noted that the only material before the Commission was on the application itself which stated at item 1.5 that the AHRC complaint had already been made.
PN141
So it was really the second threshold issue that required further consideration by the Deputy President and that was whether the general protections application was one in relation to dismissal. Quite contrary to the submission made that the Deputy President failed to apply the test in Birch, it's patent from the decision that he did so:
PN142
The appropriate test is the test that requires the use of the phrase "in relation to" and the finding by Federal Magistrate, as he then was, Lucev, which said in relation to does not require exclusivity or predominance, but rather a relationship other than a tenuous or remote relationship.
PN143
That's clearly applied by the Deputy President from paragraph 30 which starts at the bottom of page 10 of the appeal book. If I can take the Full Bench there, you can see the Deputy President made clear that the Federal Magistrate considered the meaning of "in relation to", as I've already taken the Full Bench to, that the phrase does "not extend to tenuous or remote relationships". Rather, the statutory test requires the relationship must lie within the bounds of relevance to the statutory purpose.
PN144
He goes on at paragraph 31 to - as I've said, he repeats that it required more than a tenuous or remote relationship, and he then goes on from paragraphs 32 to 37 to consider Ms Hazledine's application. He noted the similarity, almost identical nature of the remedies sought in paragraph 33. He notes in 32 that the same background facts and particulars are relied upon, and he goes through, and at paragraph 38 properly applies the law and says:
PN145
Taken together, the above analysis supports a finding the relationship is direct and real -
PN146
And that's the test he's applied, it's direct and real:
PN147
- not tenuous or remote. In other words, the general protections application was one in relation to the dismissal.
PN148
There's no misapplication of the test in Birch. It's quite clear that in fact the test in Birch was quite properly applied. Despite some bald statement by the appellant that Birch has been misapplied, it's not clear at all how she says that occurred, particularly in light of the paragraph I've taken the Full Bench to. In the footnote to paragraph 14 of the appellant's submission, the identified inconsistencies are said to be in Jobson and in Birch. I've already taken the Full Bench to the test in Birch.
PN149
In JB Hi-Fi, Ryan C held that a relationship which is indirect or less than substantial would not be sufficient. There's no conflict with that approach by the Deputy President's requirement that the relationship is direct and real. There's no conflict between that decision in Birch and since the decision in Birch has been consistently applied by the Commission as the correctly stated test. It was applied by the Deputy President in Lawless and Qantas which was affirmed by the Full Bench in its decision in Qantas v Lawless.
PN150
It's also been relied upon recently by Ryan C in a decision of Belford v Swan Transit Services Pty Ltd [2016] FWC 5201, which I understood was sent electronically to the Full Bench yesterday by my instructors. The final inconsistent case that the appellant relies upon, as I understand from this morning's submissions, is the decision in Krongold. Does the Full Bench have a copy of Krongold in the folder before your Honours? I'm sorry, I must apologise to the Full Bench, I don't have an index to your folder, so I can't direct you to the right tab.
PN151
MR HARMER: It's tab 2.
PN152
SENIOR DEPUTY PRESIDENT DRAKE: Yes. Thank you.
PN153
MS NELSON: What was said by Mr Harmer in relation to Krongold is that it was a decision which found that because there were different respondents, section 725 did not apply. That's not what Krongold stands for. If I can take the Full Bench to paragraph 1 of that decision, you'll see that it notes that on 19 December 2012 the applicant lodged an application under section 365 of the Fair Work Act. You'll then see in paragraph 2 that on 22 August 2012, she made a complaint to the Human Rights Commission. So in this case, the Fair Work Commission application was the first in time application.
PN154
You'll also see from paragraph 2 that at the time, on 22 August 2012, the applicant made her Human Rights Commission complaint. She had not yet been terminated from employment. That didn't occur until 23 October 2012. Gooley DP goes on to note that there was no evidence that the complaint to the Human Rights Commission had ever been amended and therefore, the Human Rights Commission complaint was not one which related to the termination of her employment.
PN155
You'll see at paragraph 17 that conclusion is found, that the complaint to the Human Rights Commission in that case was not a complaint in relation to the dismissal and that's the reason that in Krongold, section 725 had no operation. The lack of amendment noted in paragraph 18. So in the respondents' submission, no public interest arises because there's simply no error in the decision of the Deputy President. But it has a particular effect on the appellant and potential other appellants which is in conformity to what the Act requires, what the explanatory memorandum requires and what decisions of both the Circuit court and the Full Bench have found are correct.
PN156
It may be unfortunate for this appellant, but does not give rise to any public interest. Unless the Full Bench had some questions for me, that's the respondents' submissions.
PN157
SENIOR DEPUTY PRESIDENT DRAKE: No, not from my part.
PN158
DEPUTY PRESIDENT ASBURY: Ms Nelson, just so I'm clear, as I understand it, there's the letter attached to the general protections application, so there was a schedule, and then that schedule referred to a letter that was also attached, a letter of demand.
PN159
MS NELSON: Yes.
PN160
DEPUTY PRESIDENT ASBURY: You can agree or disagree with the proposition, but it seems that from that letter of demand there was a significant amount of conduct on the part of the two managers that was complained of that predated the dismissal, such as excluding the appellant from the workplace, cutting off her access to emails, a range of conduct that, again, you can agree or disagree, would seem to come within the definition of adverse action within the provisions of the Act.
PN161
MS NELSON: Yes, yes. That's correct, your Honour. In that respect, I'd point the Full Bench to - and this is the operation of the part of the Act that's important. It doesn't merely prevent double-dipping in respect of dismissal, in relation to dismissal matters, it effectively makes you take an election, first in time of where you're going to proceed in relation to - I'm sorry to stop right there, I can hear the applicant crying whilst I'm addressing the Full Bench and I don't want to add to her distress. I'm not sure what the Full Bench wants me to do.
PN162
SENIOR DEPUTY PRESIDENT DRAKE: I'm not sure that is the applicant crying. Are you upset, Ms Hazledine, is that you that we can hear, that noise?
PN163
MS HAZLEDINE: I'm a little teary, your Honour, but I am quite capable of sitting in the room and listening to this. Thank you for your concern.
PN164
SENIOR DEPUTY PRESIDENT DRAKE: All right. Why don't you, unless you have something to say, move the microphone a little bit away from you? Would you be happy to do that?
PN165
MS HAZLEDINE: Is that better?
PN166
SENIOR DEPUTY PRESIDENT DRAKE: Yes. Thank you. I think that the applicant would prefer to have the proceedings concluded, Ms Nelson, so you can proceed.
PN167
MS NELSON: Yes, I'm sorry, your Honour. I just didn't want to add to anybody's distress. Just going back to the issue of whether the conduct complained about is all conduct - if we carved out, as it were, the dismissal conduct and only had left in the general protections application non-dismissal related conduct, minded that that's not the way the proceeding before the Deputy President was run, then section 734 would come into operation because 734 of the Fair Work Act has the same application in relation to discrimination complaints.
PN168
Section 734 states:
PN169
(1) A person must not make a general protections court application in relation to conduct that does not involve the dismissal ... if:
PN170
A complaint under anti-discrimination has been made, and it was a clear finding by the Deputy President that the Human Rights Commission complaint had been made and if I can take the Full Bench back to the application, you will see that, as has been noted, your Honours, the application attached the complaint to the Human Rights Commission, and as properly noted by the Deputy President, what the Human Rights Commission complaint did was complain about the conduct of Mr Wakerley and Mr Giddings. That's contained at paragraph 7.1 of the attached letter, the letter of demand which I think is marked annexure A.
PN171
At paragraph 7 of that it says, "It is clear from the incidents described above", and that's all the incidents about relocation and excluding from the workforce, those general complaints, "engaged in contraventions of the Sex Discrimination Act." So there's already a complaint about those pre-termination complaints, that conduct, in the Human Rights Commission complaint. So carving out material that is said to be not in relation to dismissal would purely lead to an application of section 734 because that's material already complained about to the Human Rights Commission.
PN172
COMMISSIONER SAUNDERS: Ms Nelson, section 734 says a person must not make a general protections court application. That doesn't impact the filing of an application in the Fair Work Commission, does it?
PN173
MS NELSON: No, that's correct, Commissioner, but that was not - I should say I raise that before the Full Bench mindful that this was not the way this case proceeded before the Deputy President. The summary at page 17 of the transcript was never disputed as being this is the complaint about dismissal. The fundamental issue was the involvement of the two respondents in the dismissal, but what was put was twofold; (a) the Fair Work Commission application is first in time, and you'll see in the decision and in the transcript, much moment made about that, that was later not pursued by the applicant, and then the second point, this is not one in relation to dismissal because you should use the definition of "dismissed", or by saying at one point a submission was made that termination of employment is different to the dismissal and so even though they say in their schedule under the heading "Termination" that somehow means something different to "dismissal."
PN174
Instead, this argument was again run which was raised before the Full Bench today that - and I should say it was said that "dismissal" is defined in section 12. It is not. "Dismissed" is defined to say see section 386, but that was the argument run before the Deputy President and it's not appropriate for a completely new case to be run before the Full Bench in relation to the argument of whether a public interest arises. There's no error in the decision of the Deputy President.
PN175
DEPUTY PRESIDENT ASBURY: So essentially you are saying that the case before the Deputy President was at all times that there was a dismissal and the way that the appellant ran the case below was on the basis that because a claim was made against two named managers on the one hand and an employer on the other hand, that that was sufficient and not because the general protections application encompassed conduct other than the dismissal?
PN176
MS NELSON: That's correct.
PN177
DEPUTY PRESIDENT ASBURY: Yes. I understand your submission. Thank you.
PN178
SENIOR DEPUTY PRESIDENT DRAKE: Thank you, Ms Nelson.
PN179
MS NELSON: Thank you.
PN180
SENIOR DEPUTY PRESIDENT DRAKE: Anything you wish to say in response, Mr Harmer?
PN181
MR HARMER: Just three points, if the tribunal pleases, and I'll try and be brief. The first one relates to the scope of the claim against the managers. As has been pointed out, the general protections application against the two managers had a schedule which cross-referred for the detail of the complaint or the scope of the dispute to the letter of demand which at pages 23 to 24 sets out the totality of the breaches by AJG of sections 340 and 351, and at the bottom of page 24, notes that in relation to Mr Wakerley and Mr Giddings, under section 550, it's contended that they are deemed to have contravened both sections 340 and 351.
PN182
So there's never been any issue that the scope of the dispute embraced the totality of the conduct, not just the dismissal. Having said that, it is correct that we don't use that as a basis for discounting the operation of section 725. Our basis is, and this is the essential point, that because section 725 and various other sections of the Act referring to the notion of dismissal involves section 386 and conduct of employer, the fact of different respondents, different causes of action and different relief takes it outside the statutory purpose and context.
PN183
The third point we make in relation to, just briefly, Krongold, there were two aspects to Krongold. The respondents have referred to one of them which related to the lack of amendment of the case against the individual and it was only the individual that was in the two places. But at paragraph 9 of the decision, Gooley DP makes it clear that where there is the case against the employer in only one place, there can be no complaint going to jurisdiction and that's the aspect that we rely on.
PN184
As we pointed out, where his Honour tries to distinguish that at paragraph 37, he actually gets the facts, with respect, incorrect in that he asserts that the Human Rights case is against the individuals, not just the company and if you look at the Human Rights complaint attached to the application that the tribunal has, you'll see that there's only one respondent to that complaint, and that's the employer. So they're the sole points we seek to make in reply, unless again the tribunal has any other questions.
PN185
SENIOR DEPUTY PRESIDENT DRAKE: No, we don't.
PN186
MR HARMER: May it please.
PN187
SENIOR DEPUTY PRESIDENT DRAKE: We reserve our decision. Thank you.
ADJOURNED INDEFINITELY [1.13 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #APPELLANT1 SUBMISSIONS ON BEHALF OF THE APPELLANT PN76