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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
SENIOR DEPUTY PRESIDENT DRAKE
DEPUTY PRESIDENT DEAN
COMMISSIONER SAUNDERS
C2016/4915
s.604 - Appeal of decisions
Hazledine v Wakerley & Giddings
(C2016/4915)
Sydney
10.32 AM, THURSDAY, 10 NOVEMBER 2016
PN1
SENIOR DEPUTY PRESIDENT DRAKE: Good morning, can we have the appearances, please?
PN2
MR M HARMER: May it please the Commission, Harmer, initial M, I seek permission to appear in the appeal proper, on behalf of the appellant.
PN3
MR S MOORE: If the Commission pleases, my name is Moore, initial S, I seek permission to appear, so far as necessary, for the respondent. Appearing with me is Ms Nelson, initial R.
PN4
SENIOR DEPUTY PRESIDENT DRAKE: Thank you. Permission to appear is granted.
PN5
MR HARMER: May it please the Commission.
PN6
SENIOR DEPUTY PRESIDENT DRAKE: I think at the outset we handed you a decision, earlier, to consider. Have both of you had an opportunity to read the decision and decide if any further submissions ought to be made about that issue?
PN7
MR HARMER: Yes, thank you for the appellant's part. We have and if the Commission pleases, I may address it in the course of my submissions, as the relevant distinguishing issues come up in one of the cases that we're relying on and might address the Commission on it in that context, if that's convenient.
PN8
SENIOR DEPUTY PRESIDENT DRAKE: Yes.
PN9
MR MOORE: Your Honour, we have read it. We don't understand it's connection to the present appeal and if there are matters that the Bench could be assisted on that are contained in this decision, we'd be grateful for any indication by members of the Bench.
PN10
SENIOR DEPUTY PRESIDENT DRAKE: Could you just wait one moment there? Mr Moore we will, if after hearing Mr Harmer we think there's still a relevant issue that needs to be dealt with, we will draw it to your attention and give you time to respond.
PN11
MR MOORE: Thank you, your Honour.
PN12
SENIOR DEPUTY PRESIDENT DRAKE: Thank you. Mr Harmer?
PN13
MR HARMER: If the Commission pleases. As the tribunal is aware that this is an appeal brought by Ms Hazledine, in relation to the first instance decision. We have filed some written submissions pursuant to directions issued by the tribunal and we seek to rely upon those written submissions. We seek, otherwise, to briefly elaborate upon what we consider to be the key issues in these oral submissions.
PN14
In terms of materials to be relied upon, apart from the Appeal Book we have filed a set of materials relied upon by the appellant, which are in a folder bearing that heading if members of the tribunal have access to that.
SENIOR DEPUTY PRESIDENT DRAKE: Yes, we do. I'll mark your exhibit Appellant 1.
EXHIBIT #APPELLANT 1 SUBMISSIONS OF THE APPELLANT
PN16
MR HARMER: May it please the tribunal. If the Commission pleases, would you like to mark the support folder materials at all?
PN17
SENIOR DEPUTY PRESIDENT DRAKE: No, I don't think so.
PN18
MR HARMER: Thank you. Just for the tribunal's benefit, of the case law referred to there, subject to any requirements by the tribunal, I only intend to go to cases 2, 4 and 5, namely, Birch, Krongold and Jobson, and the legislative material I've referred to there I will refer to in submissions, but perhaps only go to if the tribunal so requires.
PN19
By way of agenda for these oral submissions, if the tribunal pleases, I seek to make some brief introductory comments. Secondly, lay out the statutory foundation for the issues before the tribunal. Thirdly, go to the underlying facts, to the extent that they may assist in context. Fourth, I seek to briefly go to errors in the decision at the first instance. Fifth, we seek to go to the proper interpretation of the relevant statutory provisions, as we see it. Sixth, related to that, we seek to highlight key differences in three respects. The tribunal would be, perhaps, familiar, from our submissions, around different respondents, different causes of actions and different remedies. Seventh, we seek to look at the consequences of the interpretation applied at first instance and how that introduces conflict in the legislation before making at least some brief concluding comments. I'm obviously open to any questions of the tribunal in the course of that.
PN20
So by way of introduction, the appeal, as we see it, is one that essentially relates to issues of statutory interpretation and, specifically, the correct statutory interpretation of section 725 of the Fair Work Act, and its interaction with sections 726 and 732.
PN21
It will be our respectful submission that this Appeal Bench will have to determine the purpose of those provisions, in context of the legislation and, specifically, in relation to dismissal as a concept defined under the legislation, in promedial legislation, demanding an interpretation which, in our respectful submission, will determine that the specific facts of this matter fall outside the scope of those provisions and the statutory purpose.
PN22
Now, in terms of briefly introducing the statutory context if I could just take the tribunal to section 725 of the Act, the tribunal will be aware, from the submissions, it's acknowledged by the appellant that section 725 does come relevantly into question. That section purports that where there is an application or complaint of the nature referred to in section 726 to 732, in relation to the dismissal of a person, there cannot be a further application or complaint of the kind referred to in those sections.
PN23
In that context, it is conceded by the applicant that section 732 comes into play and that there has been made, by the applicant against her employer, AJG, a complaint to the Australian Human Rights Commission, which is against her employer and is in relation to her dismissal, amongst other things that occurred during the course of her employment.
PN24
It is also conceded, further to the proceedings, that that AHRC complaint was made first in time and that therefore, under section 725, if there is another application or complaint made that falls within the scope of section 726 to 732 of the Act, in relation to the dismissal, then a personal prohibition would apply preventing the appellant from having made that second in time application. As the tribunal is aware, the relevant application in question here is an application under the general protection provisions of the Act, which draws into play, potentially, section 727, which refers to a general protections application, in relation to the dismissal.
PN25
I should, in passing, have noted that in relation to section 732 we further acknowledge that we have not withdrawn the AHRC complaint nor sought to do so and it has not failed for want of jurisdiction, so we concede that 732 is fully involved.
PN26
In relation to section 727, the key issue of statutory interpretation, in the context of section 725 that this Appeal Bench has to determine, is whether the general protection application lodged against Mr Wakerley and Mr Giddings, the two managers, specifically under sections 362, being the incitement provisions, and section 550 of the Act, being the ancillary liability provisions, are sufficient, in the circumstances of this case, to bring that general protections application within the meaning of section 7271A.
PN27
As the tribunal is aware, we specifically contest that the phrase, in relation to the dismissal, is satisfied by that general protections application, lodged as it is against separate respondents with separate causes of action for a separate purpose, being single remedies, amongst other things. So that's the nub of the statutory foundations for the appeal.
PN28
In terms of actual background, if I could just very briefly take members of the tribunal to the general protections application, and I don't intend to dwell on the facts for any length of time, other than if the tribunal requires me to, but just by way of introduction, the general protections application is clearly lodged only against, if one looks at the complaint form, the two individuals, Mr Wakerley and Mr Giddings, who are managers of the employer. It is specifically marked as not relating to any other provisions than sections 362 and section 550, which is at page 6 of the form. It attaches a schedule which explains the basis for the general protection application and how it is distinct from the separate Human Rights Commission complaint lodged against the employer.
PN29
That schedule has two attachments to it, one of those attachments annexed as appendix B is the Human Rights Commission complaint, which, again, carries a form which makes it clear that that complaint is lodged clearly and solely against AJG, the employer. Appendix A to the schedule is a letter of demand that proceeded the application and the complaint to Human Rights Commission.
PN30
Now, just going to annexure A, there's a very brief background of facts and the tribunal will recall, from the hearing that was held in relation to the permission to appeal, that the applicant, and the appellant in these proceedings, considers this matter to be a very important white ribbon case, relating to her alleged experience of domestic violence, including alleged rape in her home, and how the applicant survived in that context, through the confidence and integrity that she derived from her job. Indeed, her job was a vital aspect of her coping with that domestic violence.
PN31
This case pivots around the conduct of the employer and certain managers in allegedly removing that job from under the applicant, the appellant, and she suffered a complete psychological collapse and became suicidal as a result and she remains ill and out of work today through those circumstances.
PN32
Now, at page 2 of the letter of demand there is summarised some of the activity that is alleged, which is acknowledged as being the subject of both the complaint to the Human Rights Commission and the general protections application against the two individual managers. At 1.4 it's pointed out that there was a sexually hostile work culture at AJG and at point 3, on page 3, it's alleged, at 3.2, that that culture included, amongst other things, at paragraph (d) pay and equity issues that were raised by the appellant and at (e), (f) and (g) issues of sexually hostile work environment through pornographic material being viewed at functions. At (f) the allegation that Mr Wakerley, at the firm's Christmas lunch, simulated sex with Santa Claus in front of not only staff by their children, and at (g) that shortly before the events leading up to her removal Ms Hazledine had complained to Mr Gordon, the CEO of AJG, about Mr Wakerley, her manager's conduct in that regard.
PN33
Going back to 1.4 of the letter of demand, it's alleged that after that Christmas party and after that complaint there was, at 1.4(a), pressure placed by Mr Wakerley upon Ms Hazledine to disclose that she had been raped, in context of domestic violence. The steps taken thereafter to prohibit her from the workplace, on the basis of an unqualified diagnosis conflicting with her own medical assessments, those medical assessments emphasising the vital aspect of her ongoing work to her integrity.
PN34
At (c) prohibition from her returning to the workplace and introduction of supposed performance concerns against a woman who had been an outstanding performer and a leader, promoted within the organisation. And at (d) the gradual cutting away of her email access, her clients, her engagement with the workplace and the disparaging of her reputation, leading to her complete psychological collapse.
PN35
So that's the essence of the factual background, in summary, and if we take the example of Mr Wakerley, who allegedly both features in aspects of the sexually hostile work environment, such as his conduct at the Christmas lunch and her subsequent complaint against that, but also in pressuring the revelation of what had happened in the domestic circumstances and being a principal involved in - principal player, if you like, in the subsequent exclusion from Ms Hazledine from the workplace. Ms Hazledine genuinely believes that that specific conduct, separate to the conduct of AJG as an organisation, through its poor corporate governance and poor culture, warrants not only specific deterrence to Mr Wakerley as a manager but general deterrence of that sort of conduct by a manager, and hence the importance to the appellant of the civil penalty provisions that we seek to pursue and which can only be pursued under the Fair Work legislation, they are not available under any other mode available to the appellant.
PN36
So we only go to the factual background to briefly emphasise that the appellant quite genuinely contends that there is a real significant purpose that is availed by the Fair Work legislation, in the presence of those civil penalty provisions, in both specifically and generally deterring managers from the sort of conduct which we emphasise is alleged against Mr Wakerley as but one example.
PN37
This case hinges on the notion, in our respectful submission, that it is not within the statutory purpose, set up by section 725 and the succeeding provisions, to rule out that specific remedy that the legislature has seen fit for good purpose to introduce into the Fair Work Act. Indeed, we say it would, in context, cut against the very grain of the legislation and undermine the purpose of this remedial legislation. So that's the factual context and why it is so important to the appellant that she be able to pursue this case against the managers for civil penalties.
PN38
The fourth point I want to go to is the errors at first instance. If I can just briefly take the tribunal to the Appeal Book and the decision at first instance. In our respectful submission, his Honour, at first instance, erred, by failing to properly interpret the purpose of the legislation, particularly section 725, in its correct statutory context and, most particularly, in relation to the failure to pay proper regard to the meaning of "dismissal" in the context of the Fair Work Act, and it's close relationship to conduct of the employer.
PN39
It is the failure to properly interpret the legislation which has caused, in our respectful submission, the member, at first instance, to err in jurisdiction by concluding that under the legislation the appellant was, in fact, prohibited from bringing forward the general protections application because of the existence of the AHRC complaint.
PN40
To further demonstrate that error we intend to go to what we contend is the proper statutory interpretation, the proper purpose, the proper context, and to demonstrate why the specific circumstances of this matter fall outside the relevant statutory purpose and the relevant scope of the prohibition, in section 725.
PN41
To that end, again going to section 725 of the Act, the tribunal will note that the provision hinges, as do all of the subsequent provisions, including section 727, on (indistinct) in relation to a dismissal. With the assistance of case law we do intend to break down the statutory interpretation, its purpose and context. But, as I say, one of the main errors, at first instance, was the failure to have proper regard to the meaning of dismissal in the context of this Act. Indeed, if one reads the decision at first instance, as I understand it, there is no reference at all to the definition in section 12 of dismissal, nor the meaning, under section 386 of dismissal, under the legislation.
PN42
SENIOR DEPUTY PRESIDENT DRAKE: Mr Harmer, could you just speak up just a little.
PN43
MR HARMER: I apologise, your Honour.
PN44
SENIOR DEPUTY PRESIDENT DRAKE: That's all right. When you turn pages it's more difficult to hear you.
PN45
MR HARMER: I apologise. Thank you. So we respectfully contend that critical to determining the scope of the prohibition is understanding the meaning of dismissal, in section 725 and section 727 of the Act. As we'll come to the decision of Jobson, the decision of Ryan C, properly concludes that the meaning of dismissal, in section 725, does carry the same meaning as dismissal in sections, or dismissed, in sections 12 and 386 of the Act.
PN46
It's also our respectful submission, indeed it's been determined on the authorities, perhaps with no surprise, that dismissal has a consistent meaning across the general protection provisions. That's been determined, for example, by the Federal Circuit Court, in the case of Ramos v Good Samaritan [2011] FMCA 341 at 48 to 49 is but one example.
PN47
So we have a situation whereby the meaning of dismissal, under section 365, which is the basis on which the general application is brought forward. The meaning of dismissal, under section 342, which refers to adverse action and specifically mentions, under section 341 at item 1 of the schedule that adverse action includes dismissal, for purposes of section 340 and 351 of the Act, dealing with both victimisation and discrimination, under the legislation. It is also the meaning of dismissal, under section 368, for the purposes of dealing with a dismissal complaint and conferences and certificates relating to it.
PN48
So if one goes to section 12 of the Act, one sees the definition of dismissed and sees the referral to section 386. When one then goes to section 386 of the Act, which is what I'd invite the Bench to do, one sees that under section 386(1)(a):
PN49
A person has been dismissed if their employment has been terminated on the employer's initiative.
PN50
So the emphasis is on conduct by the employer. And at (b):
PN51
The person has resigned, in essence, due to the conduct of the employer.
PN52
So under both limbs of the meaning of dismissal or dismissed, under the legislation, it is the conduct of the employer that is being addressed. We say that's a critical point when one is looking at the cope of this prohibition. Once you go beyond the conduct of the employer to the conduct of managers, engaged by that employer, you start to get beyond a direct connection and into less direct and more remote conduct than is intended by the prohibition.
PN53
Now, in order to explore that, if I could just take the tribunal to the cases that I mentioned earlier on, there's three of them, the first case being the decision of Birch v Wesco Electrics, which is in the materials that we provided to the tribunal, at tab 2. What I seek to do, by going through these cases, is to dissect the meaning of section 725 of the Act. In passing I will, in dealing with the case of Jobson, deal with the Topero matter, if the tribunal pleases.
PN54
So the first case of Birch v Wesco Electrics, at tab 2 of the materials relied on by the appellant, you'll see from the reasons of the judgment entered by the then Lucev FM in that case, at paragraph 1 that there was an application by Ms Birch, in relation to discrimination, under section 351 of the Fair Work Act, another general protection application. But at paragraph 2, she'd already made a complaint to the West Australian Commissioner for Equal Opportunity. So, at paragraph 3, there was relief sought to stay the case against the employer, before the West Australian Equal Opportunity Commission.
PN55
Now, at point 4 it's pointed out that the Fair Work Commission application was filed first in time, making the complaint to the Commissioner for Equal Opportunity vulnerable, under section 725 of the Act. Consideration of that issue commences at paragraph 29 of the decision, at page 17, where the Federal Magistrate, under the heading of section 725 of the Fair Work Act quotes section 725, at paragraph 29 and then at paragraph 30 quotes the explanatory memorandum, which I have included in the materials, but for ease of reference, at the top of page 18 of the decision it's noted, under the explanatory memorandum, that:
PN56
The intend behind those provisions commencing at section 725 is to prevent a person double dipping when they have multiple potential remedies relating to a dismissal.
PN57
We seek clause 725 or section 725 being the key operative provision.
PN58
Now, the Federal Magistrate then continues, at paragraph 38 of the decision, to analyse the proper statutory construction of section 725 of the Act and, at paragraph 39, breaks it up into three requirements:
PN59
First, that a person must have been dismissed. Second, there exists, first, an application, under section 726 to 732.
PN60
As we have conceded here, which has not been withdrawn or failed for want of jurisdiction and:
PN61
Third, the person then is prohibited from making a further application of a kind referred to in those sections.
PN62
The emphasis there is, "in relation to the dismissal". The Federal Magistrate then goes on, in paragraph 40, on to look at the nature of personal prohibition, in the words, "Must not make", and we quite acknowledge that it's a personal prohibition. That analysis proceeds on the assumption that because both the complaint in the Fair Work Commission and before the Western Australian Equal Opportunity Commission were against the employer that the provisions are directly invoked. So just in passing, obviously, the distinction here and the issue that has not been previously determined by a Full Bench of this tribunal, or any senior court in the country, is this issue of does this matter, involving separate respondents, other than the employer, with separate causes of action and separate relief, fall within the scope here analysed?
PN63
Now, accordingly, our case does not fall within the ratio of this decision, but the decision is useful because, at paragraph 64, it starts the analysis of the interpretation of "in relation to". Without going through it, in its entirety, basically emphasises the scope of that phrase, but at paragraph 71 notes that the phrase, which is chameleonic or elastic in its nature, takes on its meaning from the specific purpose and context of the legislation in which it appears. As is later said, by Ryan C:
PN64
Purpose and context are everything in interpreting the meaning of this phrase.
PN65
So that's the second half of paragraph 71 of the decision.
PN66
At 72, it's said:
PN67
The expression gathers meaning from both the context in and the purpose for which it appears.
PN68
And the consistent being Federal Court judgments relating to the expression. It's the context, down at the bottom of paragraph 72, that determines whether the nature of the relationship to the specific facts of the matter needs to be direct or substantial or indirect or less than substantial.
PN69
Over the page, at paragraph 74, it's said that:
PN70
The test requires that the relationship must lie within the bounds of the relevant statutory purpose.
PN71
It's repeating and emphasising that point.
PN72
At 75 it's emphasised that:
PN73
The relevant purpose relates to a person not pursing more than one remedy in relation to their dismissal.
PN74
But, again, specifically, the consideration here is the employer involved in both sides of the equation, being the Human Rights complaint and the Fair Work matter, not the specific distinguishing factors we have to deal with here.
PN75
So the decision is helpful in pointing to the importance of purpose and context and their relevance in determining proximity, but goes no further than that, in terms of this case. It must be emphasised that neither this case, Birch, nor any other case sets out the determinative test. They are all just examples of the application of the statutory purpose and the scope which involves a tribunal having to, on a case by case basis, depending on the circumstances and given the purpose and context of the legislation, determine whether the prohibition applies.
PN76
Now, it is not controversial on the cases that it applies, where you've got the employer on both sides of the fence, as here in Birch. What this tribunal has to determine is whether the purpose and context extends so far as to embrace this situation of separate respondents, separate causes of action and separate relief.
PN77
At paragraph 81 it's again emphasised by the tribunal that it's the employer, Wesco Electronics, that's caught up in both the human rights and the industrial complaint there and at the end of that paragraph it's concluded that:
PN78
The relevant nexus is there created where the employer is caught.
PN79
The tribunal will notice that there's no particular analysis or need for analysis of the notion of dismissal because dismissal, relating to the conduct of the employer, the whole ratio here related to the employer on both sides of the equation.
PN80
So that's as far as Birch goes. It points to how one uses the scope and context and purpose of the legislation to gauge proximity and the scope of the prohibition, but it goes not further. This tribunal is faced with a unique set of circumstances in this matter.
PN81
The next case I want to touch on again, just for the purpose of informing the statutory interpretation is the decision of Jobson, by Ryan C. That decision, again, which appears at tab 5 of the materials we've provided to the tribunal, again emphasises the importance of purpose and context. But in this decision Ryan C goes the additional step and analyses the meaning of dismissed and specifically links it to section 386 of the Act, so it goes a further step than did Birch. That's extremely important in the context of this case, where we go beyond the conduct of the employer to the conduct of managers.
PN82
So the decision of Jobson, again just going to the front page, introduces that there was an application brought under section 365 of the Act, on 18 November 2013 and there were two specific jurisdictional objections raised, this is at paragraph 2, and the second of those objections, at the bottom of the page, the first page, is that section 725 precluded the general protections application because the applicant had made a complaint, in this case, to the Victorian Equal Opportunity Commission.
PN83
Now, I wasn't going to touch on it, but given the Bench has, with our appreciation, raised the issue of the relevance of Topero. I just note that from paragraph 8 in this decision Ryan C specifically distinguishes Topero and points out why, as opposed to the issue of dismissal being considered in Topero, a member of the Commission would, in fact, be compelled to deal with the jurisdictional issue presented by section 725 of the Act.
PN84
In essence that is because although in Topero an application having been made, the tribunal does not look behind the notion of dismissal and, in view of its statutory functions, without determining it. Here, under section 725, there can be, under the statute, no application made, it's a prohibition, properly, within the meaning of the Act, as an integral whole, if there is a contravention of section 725. So, in essence, what the Commission member there concluded was that even to fulfil the function of a conference and conciliation relating to an application brought under the general protection provisions, one would have to determine whether there is any application at all and part of determining that is properly understanding, under the legislation, where it's totally prohibited by section 725.
PN85
So just to very briefly survey the analysis, at paragraph 8 the Commission member starts to quote extensively from Hewitt v Topero, the Full Bench decision that's been handed down by this Full Bench for our consideration and quotes from para 17, 22, 35, all the way through continuing over some pages, all the way to page 5 of the decision, quoting up to paragraph 50 of Topero. I won't dwell upon the analysis within Topero but perhaps focus, subject to any questions from the Bench, on the distinguishing features.
PN86
SENIOR DEPUTY PRESIDENT DRAKE: Sorry, I didn't hear you as to the paragraphs of the decision.
PN87
MR HARMER: I'm sorry. So at paragraph 8, on page 2 of the Jobson decision, Ryan C quotes, commencing at paragraph 17 from Topero, and then if your Honour traces through pages 2, 3, 4 and to page 5, the quotes continue. So it's quite an extensive survey of the key paragraphs from the Topero decision. Then resumes, at paragraph 9 on page 5 of 18, noting that the Full Bench, in Topero, did not consider the nature of jurisdictional challenge involved in this case of Jobson, which involves separate provisions.
PN88
At paragraph 10 it's noted that section 366 was seen as an exception identified by the Full Bench in Topero because there was seen, as being an express statutory requirement, to consider facts out of time.
PN89
At paragraph 11 the Commissioner takes the view that, similarly, the express statutory prohibition, embodied in section 725 of the Act, also requires the tribunal to consider whether there is, properly, an application under the Act that is not so prohibited. Because if it's prohibited it's statutory banned, in effect, it doesn't exist, so the tribunal couldn't possibly start to even consider a conference and a certificate.
PN90
For that reason, relying upon the rationale of Topero, that is that, yes, where there's a statutory requirement that's expressed, such as section 366 and here section 725, the tribunal has to, before it can even perform those functions of conference and conciliation and certificate, determine whether a prohibition applies. It's for that reason that the Commission, in our respectful submissions, correctly, and we did briefly address this at first instance although, as I understand, it wasn't a major issue between either party, but, in our respectful submission it was correct for the tribunal to consider that it had to determine that jurisdictional issue, notwithstanding that in one view that perhaps counts against us in this case, given that the jurisdictional point went against us. So that's where Topero fits in.
PN91
Then at paragraph 12, again, the Commission starts to quote from section 725, the general rule. Over the page, at page 7 of 18, paragraph 17, there's reference to the double dipping rationale behind the relevant provisions.
PN92
Then across to page 9, at paragraph 24, the Commissioner again quotes from authorities pointing to the importance of statutory purpose and statutory context. At paragraph 25 the Commissioner observes:
PN93
As is clear from the authorities legislative context is everything.
PN94
Whether that's strictly correct or not, we certainly emphasise that in our case. Legislative context is very important for determining the scope of his prohibition, because you had a situation, otherwise, whereby specific statutory avenues, put in place by the legislature, in the form of civil remedies against managers, are cast aside if one takes too broad an interpretation of the prohibition. We say that simply is not and cannot be the intention.
PN95
So at paragraph 26 there's quoting from the explanatory memorandum and, importantly, the Commissioner, emphasises that dismissal from employment is key, as is put by the explanatory memorandum. Very importantly, at paragraph 27, it is noted that the Fair Work provisions, particularly the general protection provisions, are remedial provisions in nature and in the context of that remedial set of provisions, a prohibition, such as section 725, has to be given a narrow interpretation when looking at its statutory scope, otherwise you would be unduly cutting away at the remedial nature of the legislation. So the Commissioner reasons that the relationship, in terms of proximity to dismissal, would have to be direct. One that was indirect and less as substantial would not be sufficient.
PN96
Now, I'll just pause there again and say here, where the whole meaning of dismissal under the Act, under section 386, is the conduct of the employer. That's where the double dip is, against the employer, that's the meaning. When one gets away from the employer to ancillary provisions and ancillary liability under accessorial provisions, you are immediately outside the direct and you are getting to more remote and indirect relationship to the dismissal.
PN97
So these observations by Ryan C, about the purpose, the context, are very important and we say our case further emphasises that issue of proximity and just how remote one gets when one gets away from a case, the standard case, where you're dealing with employer and human rights and employer and industrial.
PN98
Now, across the page, page 12 of the decision, at paragraph 29, the Commissioner notes that in this specific case that he was considering, there was a time difference between the Human Rights complaint and the Fair Work complaint. It's not critical, but it was found that at the time of the Human Rights complaint there the dismissal was not threatened, pending nor even a probability. So, ultimately, by way of ratio, its decided that the prohibition doesn't kick in. Again, that's not critical here because we've got different facts.
PN99
Down at paragraph 34, again very importantly, going to the end of the second line:
PN100
The anti-double dipping provisions are clearly predicated upon the existence of a dismissal and on the pursuit of a remedy in relation to that dismissal.
PN101
It's at this point that, importantly, the Commissioner goes to the meaning of the word "dismissal" under the legislation and towards the end of that paragraph 34, and this is quite critical, concludes that:
PN102
Of course dismissed has the same meaning as under section 386 of the Act.
PN103
Which we've gone to. Now, this is a further critical narrowing for remedial purposes, of the scope of the prohibition. It relates to dismissal, within the meaning of section 386 of the Act, and that goes to conduct by the employer and if you step outside of employer and employee as respondents to each of the human rights and the industrial complaint, you're getting too remote, compared to the intended purpose of the legislation, in our respectful submission. So, again, there's nothing determinative in that decision but there's certainly, again, a lot of assistance in the proper interpretation of the legislation.
PN104
Now, the third decision we seek to go to, Krongold, is not very helpful, with great respect, on interpretation, but it does - probably one of the only instances where at least there's similar facts and the tribunal there assumes and concludes, in our respectful submission, by way of ratio or at least by way of obiter, that in an instance where one has, this is going to Krongold which is in our materials at tab 4. That's a decision of Gooley DP on 12 June 2013.
PN105
The tribunal will see there, at paragraph 1, that on 19 December 2012 there was an application lodged, under section 365 of the Fair Work Act taking determination under section 340, 341 et cetera. But in this matter, unlike many of the others, where it's just the employer who's subject to one and the employer also subject to the other, the human rights, here the industrial case involves both an individual, Dr Hilton Leibowitz, and a corporate entity, in Mountain Gate Dental Clinic Pty Ltd.
PN106
Now, I have to acknowledge that it's not abundantly clear there who's the employer, although when one comes to paragraph 9 the tribunal will observe that there was to be a certificate issued, under section 368, in relation to the corporate entity so I think we're entitled to assume, based on the scope of 368, that given that certificates can only issue against an employer in the scope of dismissal, that it was the corporate entity that was the employer. So here, at least, we have similar facts in that unlike the traditional case where both the employer is the subject to the industrial and the human rights side of the fence, here we have the introduction of individuals as well.
PN107
At paragraph 2 there had earlier been, on 22 August 2012 an Australian Human Rights Commission complaint against Dr Leibowitz. So I would emphasise the difference here is that one has a complaint against the employer and an individual, under the industrial regime, and an earlier complaint, only against the individual, under the human rights regime. In those circumstances, and I acknowledge there's not much analysis, but in our respectful submissions, correctly her Honour, at paragraph 9, notes that the general protection dismissal application before the Commission names two respondents, the individual and corporate, notes there's no complaint to the Human Rights Commission against the corporate employer and concludes that as such there is no jurisdictional impediment to a certificate being issued, under section 368, naming the employer.
PN108
Now, her Honour then goes on to consider section 725 in relation to the doubling up on the individual in that case, in the context of both section 732 and 734. But the key point is, whilst acknowledging the lack of analysis we say it's because the tribunal there, with great respect, considered it obvious that if one was dealing with a prohibition connected or in relation to dismissal, and you had no doubling up against an employer at all, you did not get a jurisdictional impediment, under section 725. We say that's the case here. We say that her Honour concluded that, without having to go on and determine whether there was a clash, otherwise, of relevance, within the meaning of section 725. So there was a conclusion, we say, here, at this point in time, by way of ratio.
PN109
Now, we have to acknowledge that her Honour then goes on to conclude that in any event, in relation to the individual, the two matters against the individual, Dr Leibowitz, were different in time and proportion and didn't involve the relevant clash because there was no evidence of an amendment to the human rights complaint such that it would be found to embrace the dismissal. So the clash around dismissal wasn't there, but we say that's not critical. What is critical is that her Honour saw it as being perhaps so obvious as to be able to briefly dispose of the notion that we're faced with here, where we have not a human rights complaint against the employer and an industrial complaint against the employer but actually different respondents, again, corporate and individual.
PN110
So whilst I have to acknowledge the lack of analysis, this case is the only one on point with out facts and the tribunal very quickly dispensed to the fence any notion that there was a jurisdictional impediment within the meaning of section 725 and we say, with great respect, that her Honour was correct in that regard.
PN111
Now, again, as we say, none of those cases are determinative, they're just indicative of the nature of the test to be applied. But what we say comes from those cases is this, that when faced by this issue of statutory interpretation to determine the scope of the prohibition, as this Full Bench is, one has to look to the purpose the explanatory memorandum points to preclude double dipping, in relation to a dismissal. Dismissal is defined under the Act, section 12 and section 386, to mean conduct by the employer. So we're looking at a non-double dip against an employer.
PN112
Now, the words "in relation to" take their flavour, their scope from purpose and context. Here, where we have different respondents, different causes of action and different relief against individual managers, not even involving the employer, which is across in the Human Rights Commission, we say it is far outside the intended scope.
PN113
If you go beyond the conduct of the employer, within the meaning of dismissal under this Act, to the conduct of managers. It would so clash with the intended purpose and context of the legislation, remedial legislation, to deny Ms Hazledine, properly, her remedy of civil penalties against a manager, such as Mr Wakerley, for what he did with a separate, specific and general deterrence so attached to that civil penalty.
PN114
It would go so against the grain of the legislation to say, "That is a consequence that cannot possibly be within purpose." It goes beyond the clear scope, within the meaning of dismissal, as defined. It goes beyond the scope because, in context, it clashes and has the legislature denuding a remedial piece of legislation from a key avenue of respite and a key way and, indeed, the only way of addressing the conduct of managers.
PN115
It's in that context that I want to go to point 6 of our brief oral submission, which are to emphasise three key differences. I think I've already said enough about the importance of different respondents where you don't have an employer on both sides of the fence. Here we have managers in industrial, employer in human rights. Because of the link of dismissal you get away from the conduct of the employer and you start to get more remote. We say that's too remote and we emphasise the observation of Ryan C that in remedial legislation one has to take a narrow interpretation of the scope of section 725. You go straight past that scope and beyond it when you get beyond the conduct of the employer, in our respectful submission.
PN116
COMMISSIONER SAUNDERS: Mr Harmer, in terms of corporate employers, corporate employers don't make decisions without either directors or managers being he persons within the corporation who effectively make the decision and give effect to it. Isn't it artificial to draw the distinction you're drawing between the conduct of the employer and the conduct of the manage to make the decisions and effect the decision?
PN117
MR HARMER: It's a good question, Commissioner, and in our respectful submission the answer, again, is in the context of the legislation. The legislature has here seen fit, through sections 362 and 550 of the Act, to specifically make available to litigants avenues for redress against individual managers, who I then cite, under section 362, or aid and abet, if you like, or are knowingly concerned, under section 550 of the Act.
PN118
So whilst we acknowledge that terms of vicarious liability and other notions, yes, the corporate employer acts through the mind and hands of, perhaps, individuals, the distinction here is quite critical because the Act does define dismissal as being the conduct of the employer. It could have said, "the conduct of the employer and its employees" or made more clear, if that was the intended scope. But it has chosen here to limit the prohibition, in relation to dismissal, as defined. That, we say, carries a natural limitation in terms of conduct of the employer. A legislature which also chooses to specifically introduce into the legislation civil remedies, under 362 and 550 of the Act, remedies that are not available under the Human Rights legislation at all. We say it is in no way, in context, the intention of the legislature to remove those provisions.
PN119
COMMISSIONER SAUNDERS: The appellant, in this case, is not shut out from seeking those remedies, she just has to make a choice. She has to make a choice between different causes of action available to her, on different statutes. So it's just an election she's made, isn't it?
PN120
MR HARMER: Yes, you're quite right, Commissioner. Perhaps if I can deal now with that issue of choice and I'll come back to the other issue I was going to address. We also say that the statutory context, given that this legislation in the Fair Work Act post-dated the Human Rights legislation, be it the Sex Discrimination Act or the Disability Discrimination Act, so with full knowledge of that legislation the legislature has introduced this prohibition.
PN121
Now, when one goes to the choice that an individual applicant has, in the traditional realm of prohibition, the traditional choice is you either take the employer industrially and, all right, there you get the benefit of the adverse action provisions, the reverse onus, it's a non-cost jurisdiction, there are civil penalty provisions against the employer, so there's a specific choice there.
PN122
If one goes, alternatively, to the Human Rights Commission and either the Disability Discrimination Act or the Sex Discrimination Act, one has a choice of proceeding in a cost jurisdiction which, if you are strong, it's good not to have your remedy eaten up by the cost of the proceedings. One has, under section 46PO, specific reform orders, which I think I emphasised in the permission to appeal case, it is very important to Ms Hazledine in this case that she pursue reform orders against this employer as a leading female within that business.
PN123
One also has more powerful discrimination legislation because if you take the Disability Discrimination Act, that we seek to proceed under, you have, in sections 5 and 6, which I've included in the material, the specific statutory requirement for reasonable adjustments, which has been found not to be a requirement, under section 351, of the Fair Work Act. So you have two very distinct avenues and that's the election that is forced by the legislation.
PN124
Now, here, where Ms Hazledine does seek to go under that more powerful discrimination legislation against the employer, in a cost jurisdiction and to seek those section 46PO for the reform orders, she should be entitled to make that choice and the prohibition stops her from also attacking the employer in this venue. But what we say it does not do is stop her from pursuing, specifically, the civil penalty provisions made available by the legislature, eyes open.
PN125
It would have been very easy to extend beyond dismissal of its meaning under the Act and make it clear that it picks up ancillary or accessorial liability, but there is no expression of intent and, indeed, in our respectful submission, it would run far beyond the intended purpose to denude remedial legislation of those specific civil penalties against managers. There is nothing. Indeed, it goes to the contrary direction the restriction on dismissal being the conduct of the employer.
PN126
So we acknowledge that there's a choice, but what we say and this is where we come to practical consequences of the decision at first instance, it involves a conclusion that the legislature introduced in section 725 has decided that if you start a civil penalty case against a manager, properly, under this Fair Work legislation, you cannot then, against the employer, based on the decision at first instance, as we understand it, go under the more powerful discrimination legislation against the employer even though over there, there are no civil penalty provisions to pursue managers.
PN127
Is that the choice that's meant to be forced? We say no. The choice is the traditional one, to go the employer in one side or the other. There is nothing that would say that if you pursue a civil penalty against a manager you are precluded from getting reform orders and going in a cost jurisdiction and pursuing the more powerful human rights legislation. That, in our respectful submission, makes no sense. It is a practical consequence and context that demonstrates, in remedial legislation, that that is definitely outside the intended scope.
PN128
Alternatively, if you start in the Human Rights Commission against the employer, based on the decision at first instance, even though there are there no civil penalty provisions against managers, you cannot then take those separate, discrete civil penalty measures against a manager. We say, again, that is clearly not the intended purpose.
PN129
COMMISSIONER SAUNDERS: The appellant could have commenced proceedings in the Human Rights Commission against both the employer and the managers. You just say that the remedies available, insofar as the managers are concerned, are not as good as they are under this statute.
PN130
MR HARMER: That's true, Commissioner. The remedy, in the way of civil penalty, is not available at all. Now, obviously - sorry.
PN131
SENIOR DEPUTY PRESIDENT DRAKE: I'm sorry I'm interrupting your answer. The choice is, you say, to pursue the employer in either jurisdiction, so one or the other, take your pick. Once you've done it, that's it. But it doesn't prevent seeking civil penalties against managers or other employees, so long as it does not arise out of a dismissal, arises out of separate conduct.
PN132
MR HARMER: No, with respect, your Honour.
PN133
SENIOR DEPUTY PRESIDENT DRAKE: You say even though it does involve conduct involving a dismissal?
PN134
MR HARMER: That's the very question, under section 725. I mean the phrase is, "In relation to dismissal", and the point we're making is that because dismissal is, under section 386 of the Act, confined to the conduct of the employer, that's where you get the nexus to the employer.
PN135
SENIOR DEPUTY PRESIDENT DRAKE: So even though the conduct alleged is the employee's (indistinct) arise out of a dismissal it doesn't matter because the restriction of remedy is remedy sought against the employer?
PN136
MR HARMER: That's where the double dip is, against the employer, not against separate respondents through separate causes of action, through separate - - -
PN137
SENIOR DEPUTY PRESIDENT DRAKE: All right, we understand.
PN138
MR HARMER: So it's those consequences, unintended we say, by the legislature and cutting against the grain of remedial legislation, in context of what Ryan C properly countered, in our respectful submission, that is, in remedial legislation now reinterpret the scope of the prohibition. This Bench should be very reluctant to conclude that the legislature, having elected to use the word "dismissal" and not to define it, other than as per section 386, relating solely to the conduct of employer, the Bench should be very reluctant to find that those separate provisions against individual managers should be so ruled out. So that's why we say it's beyond scope.
PN139
Now, before diverting onto those consequences, in response to a question, I was just briefly on the three areas of distinction. As I say, it's separate respondents, I've dealt with, separate causes of action, 362 and 550 I've also emphasised and separate remedies, that is civil penalties versus the compensation and reform orders under the Human Rights legislation.
PN140
Now, the other practical point we make, with respect, is that both avenues end up before either the Federal Court or the Federal Circuit Court. It's not as though we're going to end up in separate courts and the court, obviously, is used to dealing with apportionment of fault and will, in the one case, determine the liability, if any, of AJG as an employer, under the Human Rights legislation. No doubt that will assist it in informing the role of AJG as a principal, for purposes of the accessorial liability that we seek against the managers. It's quite convenient and, again, doesn't cut against the grain of the legislation or its intent to have that practical outcome, in our respectful submission.
PN141
So we say that the scope that we put forward is consistent with the purpose and context of the legislation. The scope which arises from the first instance decision clashes heavily with the context of the legislation by ruling out clearly available avenues. And we say if the intention is to stop double dipping against an employer, that intention is not served by precluding, in the one case and the one court, you pursuing civil penalties against the managers.
PN142
That's the issue we ask this tribunal to deal with. We acknowledge it's not been dealt with before and we acknowledge it's not straightforward. But we say, if one looks to the purpose, looks to the context and properly interprets the legislation you come out with a different outcome and that different outcome is the source of the error, at first instance, and it went far beyond the proper scope of the statute of prohibition.
PN143
So unless the tribunal has any other questions, that's the gist of our case.
PN144
SENIOR DEPUTY PRESIDENT DRAKE: Not from me. Thank you. Except is there any other application you're aware of where this matter is - the effect of Hewitt v Topero has been considered by a member, other than Ryan C? Has it been before any Full Bench?
PN145
MR HARMER: I must apologise, your Honour, I didn't prepare that issue for today. I had it first instance, but - - -
PN146
SENIOR DEPUTY PRESIDENT DRAKE: Yes. I'm not obliging you to know that and we'll give you extra time to answer that.
PN147
MR HARMER: I must say, as I stand here now, I'm not aware of the issue being further considered. I've given our views on where that sits but I'm obviously in the tribunal's hands. May it please the tribunal.
PN148
SENIOR DEPUTY PRESIDENT DRAKE: Mr Moore, we've provided counsel with a copy of Hewitt v Topero because we consider that there is an issue for determination in these proceedings and to whether or not the issue before Kovacic DP was a jurisdictional issue, one which applied in Hewitt v Topero, the DP might not have the power to determine and then rely on that determination to dismiss the application. That was the issue we were considering which is why we sent out the copy of the decision. I understand that this is late and you may not have had an opportunity to search for decisions dealing with that or to give it proper consideration. Certainly we don't require an answer in that matter today but we'll give you time, both parties, to research the issue and perhaps put further written submissions.
PN149
MR MOORE: We'd be grateful for that, your Honour.
PN150
SENIOR DEPUTY PRESIDENT DRAKE: Would it be inconvenient if we took a short morning tea break now, 20 minutes?
SHORT ADJOURNMENT [11.43 AM]
RESUMED [12.09 PM]
PN151
SENIOR DEPUTY PRESIDENT DRAKE: Mr Moore.
PN152
MR MOORE: Thank you. If the Commission pleases. Before I commence the submissions I will, if it's convenient, take up the Bench's invitation to address the matter that was raised just before the break in some short written submissions, if that's convenient.
PN153
SENIOR DEPUTY PRESIDENT DRAKE: Yes, I thought seven and seven from Mr - - -
PN154
MR MOORE: Seven days and seven days, is that - - -
PN155
SENIOR DEPUTY PRESIDENT DRAKE: Mm-hm.
PN156
MR MOORE: I don't think we have any problem with that.
PN157
SENIOR DEPUTY PRESIDENT DRAKE: That's not a problem? I'll mark your submissions otherwise Respondent 1.
MR MOORE: Thank you, your Honour.
EXHIBIT #RESPONDENT1 RESPONDENT'S SUBMISSIONS
PN159
Before I come to those, just to deal with the matter your Honour raised with me before the break, so that we leave here with some clear understanding of the issue. Can I - the issue which strikes us is that the decision in - - -
PN160
SENIOR DEPUTY PRESIDENT DRAKE: Hewitt v Topero.
PN161
MR MOORE: Yes, which I have here. There the Full Bench found in paragraph 50 by way of ultimate conclusion that the Commission did not need to be satisfied that the applicant had been dismissed from their employment before holding a conference under section 368. That was the particular setting and the finding made. We are not dealing with that scenario plainly in this matter. We are dealing with a jurisdictional question squarely. That is the bar, the prohibition which is established by 725. It's not immediately plain to me how, and I say this in a preliminary way and I'll reflect on it further but - - -
PN162
SENIOR DEPUTY PRESIDENT DRAKE: Yes. Well by way of being - trying to be helpful.
PN163
MR MOORE: Thank you, your Honour.
PN164
SENIOR DEPUTY PRESIDENT DRAKE: Paragraph 23, for instance, in that decision and I don't want you to answer this now, I don't require any response, says that the subdivision does not contemplate the Commission engaging in any sort of determinative process in dealing with 365 applications. In paragraph 38 it particularly refers to the fact that there was an expressed power given to us in relation to extension of time, and that the - and the absence of any other expressed power might reinforce the point that absent an expressed provision, there is no legislative intent to confer any or aided determinative power. They're the matters that caused us to think about this issue and - - -
PN165
MR MOORE: I see.
PN166
SENIOR DEPUTY PRESIDENT DRAKE: - - - that's - this is an expressed power extension of time, no other mention. Section 725 is different, it sort - it's not - well, I won't go any further about that but they're the issues.
PN167
MR MOORE: Your Honour, I'm very grateful for that indication. That assists to understand the issue that we'll address. Thank you.
PN168
SENIOR DEPUTY PRESIDENT DRAKE: Thank you. So ignore that, seven and seven, we'll get something in writing from you. We'll just deal with your submissions which we've marked exhibit Respondent 1.
PN169
MR MOORE: Thank you. I won't read those submissions, we rely upon them. What I want to do today is to make some points of emphasis and respond to some matters my learned friend has raised, but it's not my intention just to rehash what's in those submissions.
PN170
Can I commence by saying that - reminding the Bench respectfully of course that the power here being undertaken is a power for the correction of error. That's the nature of the power and jurisdiction which is here enlivened. So the first - the threshold my friend has to get over is to identify error below and my friend has said very little about that. He's said some, and I'll come to that in a moment. The nature of the error that my friend has submitted is to be found in the learned Deputy President's decision has shifted considerably from what was in the appellant's outline of argument. The appellant says very little about that in her outline of argument and where one sees that is at paragraphs 10 and 11, and it's submitted that the Commission fell into error fell into error in substituting an assessment of the similarities and differences between the two applications for the question which the Commission was required to determine, which was could the general protections application properly be characterised as one in relation to dismissal for the purposes of section 725.
PN171
Then going on in paragraph 11 it said that:
PN172
Having substituted that assessment and erred in that way, as suggested, the Commission failed to address the issue of whether section 725 could be engaged in circumstances where the appellant's AHRC complaint and her general protections application on the other hand involved separate - respondent's separate causes of actions and separate relief.
PN173
Now that is how it's put in the submissions, that's what's raised as the error. Now we say that that is in substance a complaint that the Deputy President applied the wrong test in his approach to the matter, and misdirected himself in so doing. We say that a consideration of the Deputy President's decision shows that that argument as set out in paragraph 10 and 11 is, in my respectful submission, an untenable one. We've addressed this is our submissions which I've just directed the members of the Bench too at paragraph - starting at paragraph 20.
PN174
This is a short summary of structural analysis if you like of the Deputy President's decision. He commenced at paragraph 5 by stating the conclusion he reached and then in paragraph 6 to 9 set out the statutory background, and then considered the arguments raised by the parties, including those referred to by the appellant at paragraph 14 and 15 of the decision, including that the general protections application was not one in relation to dismissal because it was not brought against her employer. Also the argument, the cause of action against the respondents was different, and therefore 725 didn't apply, and that Krongold was authority for the proposition that where a claim is against a different 725 could not apply. So we addressed all of that.
PN175
Then at 22 the Deputy President correctly sets out the two threshold issues to be considered. The first issue, that is whether the appellant had made the general protections application before making the AHRC complaint isn't in dispute. Then considered - the Deputy President from 28 onwards considered the second issue which was whether the dismissal was in relation to - whether the general protections application, I'm sorry, was in relation to dismissal. We say that the proper test, that's really where one gets to. His - if I can just pause there and say this; that quick summary of the decision disposes emphatically in my humble view of the claim that the Deputy President misdirected himself and didn't apply himself to the right question. He worked through the question in the way in which I've just outlined, and that is the correct question that he was called upon to consider.
PN176
What this case is about is really what is meant by the words "in relation to the dismissal". In particular in fact and to correct slightly what I just said there, this case is about the application by the Deputy President of the approach in Birch to those words, to the facts at hand. That's what this case is about. The Deputy President applied the construction and meaning of those words as held by Lucev FM, as he then was, in Birch. There's no complaint from in the grounds of appeal or in the submission that the Lucev FM's as he then was approach to those words were in error. That question is not before you. The appellant does not come here and say the Deputy President erred because he applied what Birch - the approach in Birch and Birch was wrong. That's not the nature of this case.
PN177
So in fact, and if I can draw the Bench's attention to paragraph 12 and 18 of the appellant's submission, it's plain there in paragraph 12 the appellant cites Birch for the construction of 725 of the Act, and then at paragraph 18 significantly under the heading - in relation to the matters that are there set out and there's there extracted the statement by Ryan C in Jobson, in relation to the dismissal, the appellant states:
PN178
See also Birch v Wesco Electrics per Lucev FM on the meaning of "in relation to" for the purpose.
PN179
So the appellant is here before the Commission saying the Deputy President - there's no allegation by the appellant in this proceeding that the Deputy President erred by his construction of the words "in relation to". This challenge is solely about the Deputy President's application of those words "in relation to". That is what the heart of this case is all about and ultimately that is a question of characterisation. A task of characterisation which is undertaken in of course the statutory context. That is ultimately the dispositive and central focus of this cases.
PN180
Now I wanted to say something to alert the members of the Bench to what Lucev FM said about the words "in relation to" in Birch, and I won't go over that because I think my friend hopefully took members of the Bench to the relevant parts of the judgment where his Honour explained what is meant by those words. But I will draw the conclusion that his Honour reaches, which my friend did take the members of the Bench to is at paragraph 74.
PN181
The phrase "in relation to" does not extend to tenuous or remote relationships. Rather, a statutory test of relationship requires that the relationship must lie within the bounds of relevance to the statutory purpose.
PN182
His Honour then later, and I can't recall if my friend took members of the Bench to this paragraph of the decision but it is important. Paragraph 84, and I'll read this paragraph because it encapsulates his Honour's approach to the question and also its application in the facts at hand in Birch. His Honour said this:
PN183
It can thus be seen that not only is there a direct relationship between the EO complaint and the application in the manner otherwise described above, but also a direct relationship between the particulars of the allegations in support of the EO complaint and the affidavit evidence in support of the application. Such is the directness of the relationship that every particular of the EO complaint is the subject of affidavit evidence in support of the application. Thus, whilst it is true to say, as Ms Birch does in submissions, that the EO complaint involves allegations spanning the terms of Ms Birch's employment by Wesco Electrics, it is not true to say, as her submissions also do, that the EO complaint does not relate exclusively, or even predominantly, to Ms Birch's eventual dismissal. As the above analysis indicates, all of the matters the subject of the EO complaint are relied upon as evidence in support of the application, and therefore must, on Ms Birch's own case, be evidence relevant to, and therefore in relation to, her dismissal, which is the subject of the application.
PN184
I emphasise the following words:
PN185
In any event, the use of the phrase "in relation to" does not require exclusivity or predominance, but rather a relationship, other than a tenuous or remote relationship.
PN186
Now that's the conclusion his Honour reached as to the meaning of those words, having regard to the authorities in the High Court and elsewhere about what the word, phrase, "in relation to" means, and its breadth, its potential breadth of meaning. Then his Honour considered that judicial commentary in the context of this provision of the Act, and construed it to mean it does not require exclusivity or predominance but rather a relationship other than a tenuous or remote relationship. So really what this case is about is the appellant is challenging the Deputy President's application of that test to the facts at hand.
PN187
Can I deal with the central reasons as we understand it the appellant says means that there is a too tenuous or remote relationship, or an insufficiency of relationship so as to within the meaning of section 725. One of the reasons put is that it said that the respondents' to the general protection claim are different to the human rights claim, and in particular that they're persons who didn't employ the applicant. It's important that the - we've heard much about the appellant's desire for remedy in the situation which confronts her.
PN188
We've heard much about Mr Harmer's view about how the - what policy should underpin the way in which this Act is construed. But I remind members of the Bench that as the High Court has observed on a number of occasions, the golden rule of construction of legislative provisions begins and ends with the text informed by the context of the Act as a whole. That is the task, it's not about superimposing or projecting onto the text anteriorly derived notions of what policy is said to be served or to underpin certain provisions of the Act.
PN189
So we start with the Act and if one looks at 725, we wish to emphasise in addressing this point around the fact that the respondents to the general protections claim and natural persons are not her employer, it is important of course to take notice of the statutory direction in 725 that a person must not, and it's a clear directive that a person must not make an application of the type that's there identified. It is - that directive attaches to the person and is in respect of a subject matter. What is that subject matter? In relation to the dismissal.
PN190
It is not a prohibition in its terms which is cast as being one about the bringing of applications against particular persons. It does not say in 725 or in the following provisions, in their terms or considered as a whole, that a person is prohibited or must not bring an application against one person because they've already brought a different application against that person. There is a reading in that my friend is engaging in here in construing the Act in a way to confine, unduly confine the prohibition to be one directed at the bringing of applications against particular persons. That, with respect, ignores the way in which the provision is cast and it is cast as a prohibition which attaches to persons in relation to a subject matter and it is a subject matter of considerable breadth. That is in relation to the dismissal.
PN191
So we say firstly that the sort of confinement of the prohibition that my friend urges upon the Commission is contrary to the plain intendment of the legislation as expressed in its terms, and it is also contrary to the apparent purpose of the provisions as an indication of which - an understanding of which, I'm sorry, can be found from the terms of the explanatory memorandum to the Act.
PN192
Now we've extracted the relevant provisions in our submissions which I'll draw the members' attention to at paragraph 28, and importantly - well I'll read the explanatory memorandum in part. It states:
PN193
This part deals with cases where there may be more than one remedy available for the same conduct or circumstances.
PN194
Pausing there, we emphasise the word "remedy". Continuing:
PN195
It ensures that people have access to an appropriate remedy but also ensures that they are not entitled to more than one remedy in such cases. This subdivision is intended to prevent a person -
PN196
Pausing there - not the employer, as my friend suggests. It's not about the employer this concept of double dipping. It's intended 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. We say that it's important for the Commission to bear steadily in mind that expression of intent contained in the explanatory memorandum about what these provisions are about. I won't repeat unnecessarily what I've said but the important points to note are that the prohibition on double dipping attaches to a person and it is intended to prevent that person from pursuing more than one remedy.
PN197
So the suggestion by my friend that one needs to construe 725 as limiting - as barring multiple actions where they're brought merely against an additional person, that is by reason of that fact and to confining the prohibition in that way, finds no support in the terms of the provision or in the explanatory memorandum. Further, it is an approach that confined interpretation which we say - before I go onto that point we do accept that in 725 where there's a reference to dismissal, that is a dismissal by the employer. That's not in controversy.
PN198
One of the difficulties though that flows from that that has struck us today is that a difficulty that then the applicant needs to engage with is the way - if as the appellant says dismissal has the same meaning throughout the relevant provisions of the Act, well section 365 being the provision under which the appellant seeks to move, it states that if a person has been dismissed and the person et cetera, alleges that the person was dismissed in contravention of this part, the person or industrial association may apply to the Commission to deal with the dispute.
PN199
So on the appellant's case one reads dismissal, if one needs to read it consistently, well dismissal there means dismissal by the employer and just as the appellant points out my clients were not the employer. If that be right, that is a further jurisdictional flaw upon which this application is brought because there is not an application brought of the type recognised by the Act.
PN200
Now can I deal now with the suggestion that a claim of accessorial liability, which is what this is, does not have a relationship or alternatively is unduly tenuous or remote so as for it to be categorised as a claim in relation to a dismissal. It's important if I may that the Bench have in mind what the nature of an accessorial liability claim is, and we've got some additional authorities which I've provided to my friend, which I want to trouble the Bench with to take you to if I may.
PN201
I'm about to have handed to the Bench two decisions, while they're being prepared I'll identify them. The first is a decision of the Full Federal Court in CFMEU v Clarke [2007] 164 IR 209. That's the smaller decision. The second larger decision in bulk at least is a decision of Bromberg J in CFMEU v McCorkell Constructions Pty Ltd (No.2) [2013] 232 IR 290.
PN202
Now dealing first with the decision in Clarke, this was - this is a decision which concerned the accessorial liability provisions which existed under the Workplace Relations Act, so they are the antecedents to section 550. The only extract I wish to take you to is an important extract which appears at paragraph 26 on page 308 of the decision.
PN203
SENIOR DEPUTY PRESIDENT DRAKE: I'm sorry, paragraph?
PN204
MR MOORE: 26, your Honour.
PN205
SENIOR DEPUTY PRESIDENT DRAKE: Thank you.
PN206
MR MOORE: On page 308. Halfway through that paragraph the Full Court said this, and before commencing section 48 was one of the antecedent provisions to section 550, and the Full Court said:
PN207
Regardless of the precise words of the accessorial provision, such liability depends upon the accessory associating himself or herself with the contravening conduct. The accessory should be linked in purpose with the perpetrators.
PN208
I won't read the citations.
PN209
The words "part to" or "concerned him" reflect that concept. Or as put by Kenny J in Emwest -
PN210
I'm sorry, I missed something there:
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The accessory must be implication or involved in the contravention or as put by Kenny J must participate in, or assent to, the contravention.
PN212
Now this extract is often quoted in subsequent decisions and one of them just to demonstrate the point is the other authority which I'll come to in a moment. But it's a very significant observation by the Full Court of a statement of principle about what's involved in proving an accessorial liability case. In essence, what an applicant needs to do in an accessorial liability case is to prove that the accessory having knowledge of the actual facts of the elements of the primary contravention, intended to participate in that primary contravention. So it requires knowledge of the essential elements of the primary contravention, and an intent to participate or support, implicate themselves in the primary contravention.
PN213
His Honour Justice Bromberg in the second decision, and perhaps I won't read from this other than ask your Honours to note that the relevant discussion happily is only in the last three pages of the decision, from paragraph 283 through to paragraph 290. His Honour refers to the decision, and I should note that his Honour here is dealing with section 550 and his Honour at paragraph 283 refers to the extract in Clarke that I've just taken your Honours to. His Honour then goes onto refer to Yorke v Lucas. That and Giorgianni are the key or the leading High Court decisions on accessorial liability which have informed decisions in that space under this Act and under the competition Act and other similar provisions.
PN214
I might ask the Bench to note this. At paragraph 288 of the decision, his Honour stated as follows:
PN215
The CFMEU contended that whilst it is necessary to prove that the accessory knew what the principal contravener was doing, an accessory cannot know what the other person is feeling or thinking. It argued that whilst it was necessary for an accessory to have knowledge of the essential elements of a contravention, it was not necessary for an accessory to have knowledge of the principal contravener's motive for the contravention.
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His Honour then continued at 289:
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That submission must be wrong where a particular motive is a necessary element of the contravention.
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I won't read the rest of that paragraph, but in paragraph 290 his Honour continued:
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An accessory will often -
PN220
I'm sorry, I was going to read the rest at 289, so continuing in 289:
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For instance, a person who assisted in the dismissal of an employee carried out by a contravener because of the employee's race, could not be an accessory to the discriminatory conduct in the absence of having assisted knowing that the contravener's conduct was motivated by race. Without that knowledge, it could not be said that the alleged accessory is "linked in purpose with the perpetrators".
PN222
An accessory will often know the principal perpetrator's motive because the perpetrator will have revealed it. Alternatively, an accessory may know the perpetrator's motive because their conduct is so intertwined, that the motive of one will be the obvious motive of the other.
PN223
I'll leave that for the Full Bench's consideration because it brings to life, I hope, it's intended to bring to life how close the relationship must be in a claim of accessorial liability. The claim of accessorial liability brings with it if I may say so a very challenging evidentiary task for a plaintiff that approved knowledge of the elements and intentional participation by the accessory in the primary contraventions.
PN224
Now that just needs to be recognised in my submission to see the - to see that the appellant's case that such a claim is too tenuous, too remote or no relationship with the dismissal is in my respectful view an untenable one. An accessorial liability claim requires the plaintiff to move into the heart, the core, of the accessory's knowledge and involvement in the primary contravention.
PN225
So the appellant has accepted Justice, as he now is, Lucev's - judge Lucev's approach to "in relation to" in that test and that is that it connotes and requires a relationship other than a tenuous or too remote one, applying that test to the facts of an accessorial liability claim makes it patently obvious in my humble submission that there is no error in the Deputy President so finding here that the accessorial liability claim was in relation to the dismissal.
PN226
Before moving on, can I address another point that my friend raised in his submissions. It's said that section 550 of the Fair Work Act involves a different contravention. That's wrong. Section 550, if I could ask the members of the Bench to turn to it, does not do that. What it does in subsection (1) is say:
PN227
A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
PN228
Then in subsection (2) there's the definition of "involved in". So if one pleads in a court a claim for accessorial liability under section 550. Yes, you have to plead out knowledge and intent to participate and support the primary contravention but if you succeed, what you've succeeded in establishing is that the accessory has contravened the same provision of the Act as the primary contravener. So it's not a separate contravention is the point we simply wish to make.
PN229
Now, can I move to another point that my friend emphasised, that it's said well this general protections - the general protections claim involves a claim for civil penalties and the AHRC claim doesn't. Well that is true. As the Deputy President notes in his decision, the claims for relief are substantially the same, there's a table on his Honour's decision. Save that, there is also a claim for penalty in the general protections claim.
PN230
We say that the bar is a bar for the reasons I outlined before. The bar in 725 is a bar on the applicant bringing an application in respect of a subject matter. That inquiry and that conclusion, that is what is the subject matter of the complaint, is it in relation to a dismissal, is not altered by the fact that different relief is sought. A claim can be in relation to an identical subject matter. Does the appellant submit that if the subject matter is identical but the relief sought is different in two different proceedings that they're not coincident?
PN231
The question of the differences in relief sought is irrelevant and doesn't assist with the task. It doesn't alter the general protections application from being one in relation to a dismissal. It's perhaps a convenient point to address my friend's submissions about choice.
PN232
SENIOR DEPUTY PRESIDENT DRAKE: Mr Moore, just in case that clock was bothering you we thought we'd sit until you'd completed your submissions, if that's convenient.
PN233
MR MOORE: Thank you, your Honour. That's convenient, thank you. We deal with briefly but it's a short point really about choice and election in our submissions and we deal with them I think in paragraph 36 and 37, and I think the matter emerged in an exchange between - sufficiently clearly between my friend and the Commissioner that the applicant here had plain choices in front of her. She could have brought an application under the Australian Human Rights Commission Act against my clients here and the employer, and sought all the remedies that she might seek, including what my friend refers to as the substantial reform orders that are available there, and whatever other relief she might seek.
PN234
Or she could have come to this place and made an application against my clients and the employer seeking to penalise. There's no shutting out here. Certainly, section 725 constrains choice. It constrains choice for the reasons set out in the explanatory memorandum. That's the manifest intention. My friend's submission with respect is really not much more than a plea, not anchored in any law to say don't construe the Act in a way which confines my client's legal options. Well I'm sorry but parliament decides those matters, not people at the Bar table and not with respect members of this Commission or courts. The appellant had her choices, she's made those choices.
PN235
Now can I just check my notes and deal with some other matters that I might not have yet addressed. I think I dealt with this briefly before but for the reasons - so I'm clear, for the reasons I've outlined earlier in these submissions, this case is not - this appeal is not about one of statutory interpretation. This is a case - the appeal is one which seeks to challenge the accepted construction of 725. That's what the appellant says in her submissions:
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We accept what Birch says about 725, including in relation to the words "in relation to".
PN237
PN238
This is a case that is no more than a claim that we, the appellant, don't like the conclusion that was reached. It is not a case, an appeal which is properly characterised as one being about the interpretation of section 725.
PN239
To pick up a point I addressed quickly a few moments ago, we've accepted that the word "dismissal" in section 725 must mean dismissal by an employer, and my friend wishes to make much of that. But again, we say with respect that is a red herring because the words of controversy here, not the word dismissal, but the words of expansion that sit right next to it "in relation to". That's, as I said at the outset, that is what the key controversy is here about, is how expansive are those words. Well that's not quite the controversy. We say that the appellant had accepted, it's quite clear that she had accepted the marking out of the meets and bounds of those words of expansion as elucidated and held by Judge Lucev.
PN240
The decision in Jobson is of little assistance or guidance in my respectful view to the members of the Commission. There, there are two distinguishing features in it. There, the employer alleged or asserted that the employee was not dismissed. That was a marked difference in this case. We don't have that controversy here. Secondly, there the application under the Human Rights Act occurred before the dismissal, so we're in very different circumstances I think two days before the dismissal that's dated. So it's a long way from this situation and we say it doesn't assist the Bench in any material way.
PN241
As to Krongold, we've made some brief submissions about that which hopefully sufficiently convey the respondents' position, and that's dealt with in paragraph 34 in particular. The point there is that the appellant fastens upon the Deputy President's observation in that decision in paragraph 9, but those observations are purely obiter. That is because that decision was decided not on the basis that there were different respondents but simply because when a general protections application was made to the Commission, although a complaint had already been made to the Human Rights Commission, it was not one in relation to the dismissal. It was a very different case. That's clear from paragraph 17 to 19 of the decision which we extract at paragraph 34 of our outline. So at its highest that's obiter by the Deputy President, which of course should not be dismissed out of hand and needs to be properly considered, but we say upon properly considering that her Honour in that case wasn't called upon to decide the very controversy that this Full Bench now needs to consider.
PN242
Her Honour, in my reading of the decision, made a remark in paragraph 9 effectively in passing and getting to the heart of the controversy that she had to deal with, which is the matters which I have referred to. So it doesn't assist the appellant, we say, in any material way to rely upon that here. Because it's not a decision which stands in any reasoned way with respect of course to the Deputy President for the issues that the Full Bench here needs to deal with.
PN243
Briefly, my friend referred a number of times to, "this is remedial legislation". Well, yes it's remedial legislation but remedial legislation, the descript of remedial legislation isn't a trump card, excuse the pun, is not a card that enables - and perhaps not very timely observation but is not a card that enables one to get away from the nuts and bolts of considering statutes. As I said before, we look at the text, we consider it in context. The presumption of breadth in remedial legislation is a presumption which plays second fiddle to the golden rule of statutory construction that I've identified.
PN244
Just going back to the question of consequences, and this is connected to the argument about choice and election. I think the point that we also want to make there is that there are cases where a court or tribunal may prefer, may prefer a particular construction of an Act because the consequence of another construction of the Act is one which is conducive - well it's unworkable. Is one which is manifest, does not serve the intention of parliament.
PN245
Now we are not in that case, so my friend's submissions around consequences we say principally the consequences that the appellant faces are all of her own making in terms of this litigation. Secondly, and in any event, the consequences are a far cry from the sort of case where it might be said by a court well, this is an outcome that parliament could not have intended. If we look at what parliament intended here, it was a bar on an applicant bringing a claim seeking a remedy, that's the words of the Act, in relation to dismissal.
PN246
Excuse me a moment, your Honours. Thank you, I just want to draw the members of the Bench's attention in conclusion to the point that we make in paragraph 21 of our outline. We say there that there's no doubt that the appellant was dismissed by the employer AJG, and that much is alleged by the appellant in the general protections application, and it's also apparent and what we say there is that the adverse action alleged to have been suffered by the appellant includes the conduct of the respondents in being involved in her dismissal. That's admitted by the appellant and we refer at footnote 24 to the transcript of the permission to appeal hearing on 6 September 2016. The paragraph numbers there identified at footnote 24.
PN247
So there is an acceptance, an admission by the appellant that the adverse action here being complained of is that it includes the conduct of the respondents in being involved in her dismissal. That is admitted by the appellant. We say that is something which the Commission needs to bear steadily in mind in dealing with these arguments.
PN248
SENIOR DEPUTY PRESIDENT DRAKE: Thank you, Mr Moore.
PN249
MR MOORE: Thank you, your Honour.
PN250
SENIOR DEPUTY PRESIDENT DRAKE: Do you wish to reply, Mr Harmer?
PN251
MR HARMER: Yes, thank you, your Honour.
PN252
SENIOR DEPUTY PRESIDENT DRAKE: Unless you've got a diabetic problem, we thought we'd work through and then have lunch afterwards. Anyone who's desperate for a break, I'll give you one but - - -
PN253
MR HARMER: Not at all, no, I'll try and be as brief as possible, thank you, your Honour. First, by way of clarification and forgive me if I am dim on this one, it's seven days for the respondents to put on submissions and seven days for the appellant to reply?
PN254
SENIOR DEPUTY PRESIDENT DRAKE: That's what I had in mind.
PN255
MR HARMER: Thank you. Perhaps if I could first start with the issue of error that was addressed by my friend. The basis for the appeal as set out in the grounds of appeal, I think the Bench will find that the grounds of appeal touch on each and every aspect I've addressed orally and what is in our written submissions. So that's the meet and bounds, if you like, of the appeal, and if one goes to the appeal document it starts with the notion that there was a decision contrary to the statutory context and purpose at section 725, which we say is clearly an issue of statutory interpretation.
PN256
Secondly, we do say there was an incorrect test applied through the mere comparison as opposed to applying the correct statutory purpose. Thirdly, we note the several penalty issues and adequate weight. Fourthly, the issue around the respondents not dismissing and fifthly the issue of section 386 and the lack of regard to the meaning of dismissal.
PN257
We say we've identified error. Now over and above that there was an incorrect distinction about Krongold and other issues in the decision but certainly error which would justify, given they go to jurisdiction, this Bench properly interpreting legislation and supplanting the correct outcome in correcting that error, and that's what seek.
PN258
The second issue went to the reliance we placed on the importance of dismissal in section 386. My friend is right that in relation to determines questions of proximity but the subject matter that the relationship is to is dismissal. That's the epicentre if you like of the issue. So that question of proximity to the conduct of the employer and we say that Ryan C was correct in taking a view that that question of proximity and the scope of the prohibition has to be limited in remedial legislation. We say that Gooley DP was correct in automatically taking the view that if you don't have an employer involved at all in one side of the equation, you're already getting into areas of proximity far removed from the purpose. They are real issues of statutory interpretation that we say inform the correct outcome on this appeal.
PN259
Now the explanatory memorandum talks about double dipping but that merely begs the question in terms of dismissal and questions of proximity and indeed, as the tribunal would be aware, the explanatory memorandum does not determine the scope of the legislation. It is just an aid to interpretation and it goes no further. Indeed, in a recent decision of the tribunal - sorry of the Federal Court, which has taken a view contrary to the explanatory memorandum under this Act and for that very reason the aid put together by members of the executive can err. We don't say there's an error here, we say the statutory assistance, statutory interpretation assistance provided by the notion of double dipping is helpful but it's not determinative and you have to go to the issues we've probably gone to to determine the correct scope.
PN260
There was a point made about section 365 and an acknowledgement that dismissal under section 365 has the section 386 meaning. We do acknowledge that but as I've indicated we're pursuing the individuals purely under two provisions; section 362 and section 550. The law is clear, we do not have to pursue the principal employer in order to be able to pursue the accessories. So we can properly say that look, there is within the meaning of 365 a contravention by the employer, that's not being pursued, that doesn't stop us pursuing under 550 and 362 these managers. None of that detracts from the notion that we have a statutory test to apply and one of proximity, and that question is not detracted from by virtue of the fact that there was a dismissal within the meaning of 365.
PN261
Related to that are the observations properly made about the fact that accessorial liability under section 550 involves issues of proximity. That's perfectly correct. Here however we have a different test that requires questions or proximity to be determined and it does involve other than the conduct of the employer, it certainly involves close proximity to that conduct in terms of the involvement of the managers. I note that there was no addressing of section 362 but we do say that Mr Wakerley, for example, incited certain of the conduct. We acknowledge that that's a close involvement but it is not the conduct of the employer, it is separate and distinct and the fact that there is issues of proximity under section 550 does not detract from the separate proximity test determined by reference to the separate purpose and context of section 725.
PN262
Again, we agree with Ryan C that for remedial legislation one does have to move away from the broad interpretation. It does have to be direct and in our respectful submission, once you move away from the employer itself one gets into areas of proximity that are too remote and that only expands more when one goes to different causes of action and different remedies. We emphasise that section 550 is a deeming contravention but one can proceed with a contravention against the principal, that's one contravention. There's a separate distinct deemed contravention by the accessory, so we don't agree with the submission on that point to the extent it's relevant.
PN263
In terms of the civil penalties, it was said that different relief is not - sorry, is irrelevant. The different relief goes to the point of statutory context and again, I appreciate I'm repeating this point but the statutory context is such that the legislature has seen fit to introduce a separate regime of civil penalties that can be pursued against managers under section 362 and 550.
PN264
It's that that goes to context, not proximity and so we say when interpreting the purpose and scope in context, this tribunal in remedial legislation would avoid an interpretation that obliterates those separate civil penalties revenues that are there for good separate discreet reason, and so determined by the legislature. So it's that clash that we say the tribunal would seek to avoid by way of consequence, and we do say that in that context consequences are important and extremely pertinent to the interpretation to be adopted contrary to the submission of my friend.
PN265
Now there was a submission made that the decision of Jobson was of little value. As I emphasised in our earlier submissions, both Birch and Jobson, neither of them are determinative nor completely contain the test but both of the contain helpful observations, the ratio of neither touches this matter but they both contain helpful observations that inform the test. We acknowledge this tribunal has to go into new ground and further, Jobson assist in interpretation both in its approach to remedial legislation, it's an observation of scope and proximity and importantly the link to section 386.
PN266
In terms of Krongold, in our respectful submission if one properly reads that decision her Honour when faced with the situation that the employer was only in one limb, that is the industrial limb and did not feature at all in the human rights limb, took the decision without having to go to any other issues of overlap that the jurisdictional issue just simply did not arise. Now that's a decision made on the facts of that matter; yes, there's no elaboration on rationale but that was the ratio on that aspect. Now there's a separate aspect but that dealt with two claims against an individual, completely separate issue. It's the first aspect of Krongold which is pertinent to the outcome in this case and which her Honour properly albeit in stride dispatched because the issue was seen as being too remote and not arising. Here, similarly, we have the employer only being attacked in one meaning and that's directly on point.
PN267
If the tribunal would just give me one moment, if I may. I'll just make a couple of additional points on the scheme of the legislation first of all. Section 725 through to 732 talk about multiple actions, if you like. The sections themselves don't refer to remedies at all. It was the explanatory memorandum that referred to the issue of remedies, and with great respect could have talked about causes of action, chose the term remedies but quite an imprecise term in context. It was talking about remedies in the sense of a claim, in the sense of multiple actions, which is what the relevant provisions are headed up. So any suggestion that you're limited to a single remedy, I mean that simple is not tenable and not the meaning of the provisions.
PN268
In terms of Birch, I emphasise again that there there was the clash of employer in both the human rights and the industrial wings, and I think I've already emphasised that it's the term "dismissal" that makes that the epicentre; that is employer in both wings of the choice and of the clash and obviously we don't have that situation here. I think that's the totality of our submissions in reply, may it please the tribunal.
PN269
SENIOR DEPUTY PRESIDENT DRAKE: Thank you. We'll reserve our decision subject to receiving the submissions.
PN270
MR MOORE: Thank you, your Honour.
PN271
MR HARMER: Thank you.
ADJOURNED INDEFINITELY [1.11 PM]
LIST OF WITNESSES, EXHIBITS AND MFIs
EXHIBIT #APPELLANT 1 SUBMISSIONS OF THE APPELLANT............. PN15
EXHIBIT #RESPONDENT1 RESPONDENT'S SUBMISSIONS.................. PN158