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[2021] FWC 2663
General information, not legal advice.
Fair Work Commission
2021-05-20
Original judgment source is linked above.
s.365 - General protections
Application to deal with a contravention of the general protections' provisions involving dismissal - jurisdictional objection - Application filed with the NSW Anti-Discrimination Tribunal and whether the application is prohibited by s.725.
[1] Ms Bridie Flanagan filed a general protections dispute involving dismissal under s. 365 of the Fair Work Act 2009 (the Act) with the Fair Work Commission (Commission) on 5 August 2020. Ms Flanagan contends that Reliance (Australia) Pty Ltd (Reliance) contravened the general protections provisions in relation to a workplace right and discriminated on the basis of sex. She further contends that her termination of employment is an adverse action, and she is seeking compensation.
[2] Ms Flanagan was employed by Reliance from 2017 until her dismissal on 16 July 2020. Ms Flanagan filed the application within the 21-day time limit pursuant to s.366(1) of the Act.
[3] The alleged contravention emanates from an incident between herself and one of the owners/directors at the Christmas function on 14 December 2019, and Ms Bridie alleges that her complaint regarding the incident was not properly investigated, that instead of dealing with her complaint she was threatened with termination of employment over the misuse of her work mobile phone and personal sexual activity and that she was subsequently dismissed.
[4] Ms Bridie's application lists the sections of the Act that she says that Reliance contravened. Those provisions concern:
S.340 Protection of Workplace rights
S.351 discrimination on the basis of sex.
[5] The actions that Ms Bridie states that are in contravention of the general protections' provisions include:
[6] Ms Flanagan did not indicate in her application that she had filed a claim in relation to her dismissal in another jurisdiction. The question on the form asks: "Have you made another claim to the Commission or to any other organisation regarding your dismissal (e.g an unfair dismissal application)?" Ms Bridie marked "no".
[7] Ms Bridie filed a claim with the Anti-Discrimination Board of NSW (the claim) on 17 March 2020, prior to her dismissal, and it is this claim that Reliance relies on to object to the s.365 application.
[8] On filing its response to Ms Bridie's application, Reliance objected that the application may not be properly before the Commission on the basis that another claim was lodged in relation to the same subject matter and it submits that s.725 of the Act applies.
[9] Both parties sought leave to be legally represented to enable the matter to be dealt more efficiently, taking into account its complexity and on the basis that it would be unfair to allow each party to represent themselves as they would be unable to do so effectively. I granted leave to both parties to be legally represented.
[10] This matter failed to resolve with a staff conciliator and Reliance requested the matter of jurisdiction be determined before a certificate may be issued. On receipt of the file, I listed the matter for mention and programming on 14 October 2020 and directions were issued with the hearing scheduled for 26 November 2020.
[11] The submissions filed by Ms Bridie were short and Ms Bridie's representative requested an adjournment to consider the relevance of legal precedence concerning the provisions in Part 6-1 of the Act. Directions were issued for the filing of further submissions.
[12] On request of the Commission Ms Bridie submitted a copy of her claim in the Anti-Discrimination Board of NSW.
[13] Subsequently I received an adjournment request sine die due to the hospitalisation of Ms Bridie.
[14] In the new year after Ms Bridie became available to instruct her representative, further directions were issued for the filing of final submissions. However, further adjournments occurred due to both the illness of Ms Bridie's representative and a further conciliation conference to resolve the dispute.
[15] This decision concerns the question whether the application is properly before the Commission in view of another claim made under another law and whether Chapter 6, Part 6-1, Division 3 - Preventing multiple actions, precludes the filing of this s.365 application.
(1) This section applies if:
- (a) a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and
- (b) the application has not:
- (i) been withdrawn by the person who made the application; or
(iii) resulted in the issue of a certificate under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful).
(a) a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and
(b) the application has not:
- (i) been withdrawn by the person who made the application; or
(c) a certificate in relation to the dispute has been issued by the FWC under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful); and
(d) a notification of the parties' agreement to the FWC arbitrating the dispute has been made as referred to in paragraphs 369(1)(b) and (c).
(2) A general protections FWC application is an application under section 365 for the FWC to deal with a dispute that relates to dismissal.
732 Applications and complaints under other laws
(1) This section applies if:
(a) an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and
(b) the application or complaint has not:
(i) been withdrawn by the person who made the application; or
(2) An application or complaint under another law is an application or complaint made under:
(a) a law of the Commonwealth (other than this Act); or
(b) a law of a State or Territory.
(3) For the purposes of this Subdivision, if a complaint under the Australian Human Rights Commission Act 1986 relates to a dismissal only as a result of an amendment of the complaint, the complaint is taken to be made when the complaint is amended.
[17] These provisions provide that where a person is aggrieved by a dismissal, they must not make an application for a remedy under one of these provisions under this Part of the Act if another application or complaint is made under another law within one of the other sections in this Part.
[18] The purpose of these provisions is to avoid double-dipping, and this was explained in the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) in the following terms:
Clause 732 - Applications and complaints under other laws
2707. This Subdivision is 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.
2708. Clauses 726 to 732 set out all of the potential remedies that may apply. Clause 725 is the key operative provision. It provides that if a person has made an application that falls within any of clauses 726 to 732 then they may not bring an application that falls within any of the other clauses.
2709. Each of clauses 726 to 732 deals with different potential remedies. They each set out particular circumstances in which a person may not be prevented from making an application under one of the clauses even where they have initiated an application under another clause.
2710. In all cases the anti-double dipping provisions will not apply where
2711. This is intended to ensure that a person does not miss out on a remedy because they were unable to make a competent application for another remedy or where they have realised another remedy may be more appropriate than the remedy they initially sought.
2715. Clause 732 deals with an application or complaint under another law. This includes an application or complaint made under a law of a State or Territory. This reflects the fact that various State or Territory laws are not excluded by Part 1-3 of the Bill (Application of this Act) and national system employees could therefore seek remedies under those Acts. For example, a person whose employment has been terminated or who has been adversely treated in employment for reasons such as race, colour, sex, sexual preference, age or other discriminatory reasons could seek a remedy under a State or Territory anti-discrimination or equal opportunity law, or a remedy for contravention of protections under Division 5 of Part 3-1 (General Protections), but not both.
Ms Bridie's application in the Anti-Discrimination Board of NSW
[19] Ms Bridie made a complaint to the Anti-Discrimination Board of NSW (ADB) under the Anti-Discrimination Act 1977 (NSW) complaining of sexual harassment and sex discrimination in employment and victimisation, covering the period of 14 December 2019 until the date of the application 17 March 2020. The parties informed the Commission that the claim had been referred to the New South Wales Civil and Administrative Tribunal (NCAT) by the ADB. However, at the time of filing the last submissions, neither party confirmed that the claim progressed further before NCAT. Relevantly the ADB claim was neither withdrawn nor failed for want of jurisdiction at the time of filing this general protections' application.
[20] The ADBs claim's particulars (in summary) provide:
Confirmation of her employment with the Respondent
Reference to the incident at the work Christmas party on 14 December 2019 concerning the same owner and director as named in this general protections' application
Ms Bridie met with the brother of the owner/ director, also an owner/ director in his own right, and advised him of the incident, but asked that she be given time to consider her options and she also informed him that she felt uncomfortable about returning to work.
After the meeting Ms Bridie was contacted and advised that the matter had been looked into and a course of action was proposed including the offer of an apology.
There were discussions between the parties concerning an exit from employment
Ms Bridie states that she was threatened with an imminent termination of employment.
Ms Bridie states that her representative requested a formal investigation into her complaint and the response from the Respondent was that there would be no investigation as the incident happened in a lift with only the two individuals present.
Ms Bridie was directed to return her work mobile phone and she refused. The attached documentation to the claim shows disputation over the return of the phone and when Ms Bridie returned the phone, she had wiped it of all data. The attached documentation also shows that the Respondent considered this action in addition to the other allegations made against her amounted to serious misconduct.
Ms Bridie states that rather than dealing with her complaint she was made to feel that she engaged in misconduct.
[21] The correspondence to Reliance from the ADB notes 3 complaints against them and the director:
Sexual harassment in employment against one owner/ director for the period 14 December 2019 to 17 March 2020;
Sex discrimination and sexual harassment against Reliance for the period 14 December 2019 to 17 March 2020; and
Victimisation against Reliance for the period 14 December 2019 to 17 March 2020.
[22] Ms Bridie submits that the ADB claim had not been amended to include the allegations of serious misconduct contained in correspondence from solicitors for Reliance to Ms Bridie dated 23 April 2020. Consequently, Ms Bridie submits there is no evidence before the Commission that the ADB claim relates to dismissal and therefore the general protections application is not barred. Ms Bridie makes the following points in her submissions:
that the ADB claim is not "in relation to dismissal" because she was not dismissed at the time that she made the claim. Further she submits that the words "in relation to dismissal" should be given their ordinary meaning and not broadened to encapsulate a threatened dismissal.
2. that the present matter can be distinguished from the decision in Birch v Wesco Electrics.[1] She submits that the ADB claim is a claim of sexual harassment and assault, while the general protections application relates to the dismissal, which occurred because Ms Bridie exercised a workplace right to make a complaint to her employer and sex discrimination.
3. She submits that the comparison of the ABD claim and the general protections application conducted by Reliance reveals no similar facts or related facts leading or relating to the dismissal of 16 July 2020. Ms Bridie also submits her ABD claim is not for the purpose of compensation relating to the dismissal.[2]
[23] Reliance submits:
that the onus that the Commission has jurisdiction by demonstrating that the application is properly before the Commission and that s.725 of the Act is not engaged rests with Ms Bridie. Ms Bridie has failed to demonstrate that s.725 is not enlivened in their view.
Sections 725 and 732 of the Act applies and the ABD claim has not been withdrawn, nor failed for want of jurisdiction.
The ABD claim and application are in relation to the same subject matter and the words "in relation to" have and are intended to have a broad meaning as demonstrated by the authorities relied on by Reliance.
Reliance also points out other problems with the general protections' application. These problems go to the application itself and the submissions made by Ms Bridie that that there is no connection between the two matters.
Reliance conducted a comparison of the two matters and concluded that the similarities show an overwhelming overlap.
6. Reliance also disputes "facts" relied on in submissions by Ms Bridie and presents an analysis of case law.[3]
[24] Section 725 of the Act provides that a person must not make an application which falls within section 726 - 732 of the Act. The Explanatory Memorandum of the Fair Work Bill 2008 states that the purpose of the provisions is to prevent a party from seeking multiple remedies, often referred to as double dipping, in circumstances where it may be probable that they may make multiple applications seeking remedies.
[25] At no time has Ms Bridie indicated that she was seeking any remedy other than compensation. The jurisdiction of both the ADB claim and the general protections application may give rise to such a remedy if successful.
[26] The example in the Explanatory Memorandum in relation to s. 732 is relevant to this matter, noting my underlining it states:
2715. Clause 732 deals with an application or complaint under another law. This includes an application or complaint made under a law of a State or Territory. This reflects the fact that various State or Territory laws are not excluded by Part 1-3 of the Bill (Application of this Act) and national system employees could therefore seek remedies under those Acts. For example, a person whose employment has been terminated or who has been adversely treated in employment for reasons such as race, colour, sex, sexual preference, age or other discriminatory reasons could seek a remedy under a State or Territory anti-discrimination or equal opportunity law, or a remedy for contravention of protections under Division 5 of Part 3-1 (General Protections), but not both.
[27] Ms Bridie submits that her ADB claim is not a claim in relation to dismissal. I do not find that the evidence supports this contention. On a simple reading of the ADB claim it contains the following references:
'6. Toufic then advised that in his phone call to Shaun that morning, he asked Shaun what the company was currently offering me. Shaun said that they were offering 4 weeks' pay in exchange for my resignation. I told Toufic that this was the first I had heard of an offer of 4 weeks' pay, and that their offer just prior to my trip to Thailand was 6 weeks' pay.'
7. Toufic said that Shaun was only prepared to put that offer in writing if I intended to accept it and that if I were going to counter or reject the offer, they didn't want to waste their time putting the offer in writing. I told Toufic that the company would need to send the offer in writing to Karen as she has authority to act on my behalf and I do not want to be contacted by the company directly as it is incredibly distressing for me. ..............
8. At this point, Toufic told me that Shaun intended to proceed with his own action against me at 1:00PM that afternoon if I hadn't responded to the offer. I asked Toufic what "action" Shaun intended to take against me, and he said he wasn't sure, but he assumed that it was termination. I concurred, as this was consistent with the multiple threats of termination, I had received from IITR in the weeks prior..........
10. I advised Toufic to go back to Shaun and tell him that I can't consider an offer that isn't in writing and to instruct Shaun to have all offers and further communication go via Karen Mullally.
11. After 1:00PM that day I was expecting to be terminated or for Karen to have received some correspondence about the action that was supposedly being taken against me......'[4]
[28] Further references to discussions regarding the expected termination of employment is referred in paragraph 12 of the same section and again in the final paragraphs of the claim on page 12. These references amount to more than a threat, it is reasonable to conclude that Ms Bridie knew she would be dismissed, and the reason related to her use of the work mobile phone which by her own admission in her ADB claim felt like she had engaged in misconduct.
[29] Copies of correspondence from Reliance dating back to January and February 2020 refer to Ms Bridie's refusal to participate in discussions to resolve the dispute, her refusal to return company property (phone) and consistent with her statement that the only option is an exit package, both parties commenced negotiation of that package. The correspondence also refers to Ms Bridie's ultimate return of the phone which was wiped of its memory inconsistent with her undertakings and it further refers to their engagement of lawyers in what they characterised as very serious conduct.[5] This material is clear that Reliance alleges that Ms Bridie's wiping of the phone memory was considered serious misconduct. Reliance considered that the phone contained important evidence relating to her conduct which was under investigation.
[30] The ADB claim makes clear in the concluding remarks that Ms Bridie felt that she had been:
harassed, bullied, victimised and felt hopeless because she made a complaint against one of the directors
that her grievance concerns a lack of response to a request for an investigation
that she was threatened with termination of employment
that she was directed to hand over her work mobile phone because she is under investigation in relation to the use of the phone
that the behaviour towards her made her feel she had engaged in misconduct.
[31] The detail in the ADB claim refers to common facts and dates consistent with the general protections' application. The general protections application also makes it clear that she made the ADB claim while she was under investigation for improper use of the mobile phone,[6] and subject to investigation of allegations of "serious misconduct, in particular, the personal sexual activities of the Applicant".[7] Ms Bridie attached to her general protection's application a letter from solicitors for Reliance dated 23 April 2020. This correspondence details the serious allegations made against Ms Bridie and seeks her response. The letter of termination of employment, also attached to the application detailed the investigation and show cause processes. It is evident from this material and the attachments to the ADB claim that Ms Bridie was aware that there were serious allegations of misconduct against her before she filed the ADB claim. This shows a connexion between the ADB claim and the general protections application. On reading of the two matters, it also appears that only selective material has been filed with both the ADB claim and the general protections application.
[32] I accept that the purpose of s.725 of the Act is intended to capture circumstances like Ms Bridie's application where she seeks a remedy for the same conduct or set of circumstances. Section 725 provides that Ms Bridie "must not make" an application of the kind in s.727 where she has made an application captured by s.732. Both applications captured by ss. 732 and 727 relate to Ms Bridie's dismissal.
[33] To suggest as Ms Bridie does, that the ADB claim is entirely different is inaccurate. When one compares the facts between the two matters, the words "in relation to" the dismissal is apt to describe the circumstances in this matter. Consistent with the authorities[8], Ms Bridie's application falls within the provisions of s.725 of the Act for the following reasons:
Ms Bridie was dismissed and has made an application pursuant to s.365, a provision captured by s.727 and her ADB claim made before this matter is captured by s.732.
It cannot be reasonably found that Ms Bridie's ADB claim is not "in relation to" her dismissal. On the material it is reasonable to conclude that Ms Bridie knew of her impending dismissal when she made the ADB claim, and further her general protections application together with materials filed reveals that to be the case. "In relation to" her dismissal is relevant to this application and there is a degree of connexion between the matters. The events described by Ms Bridie and the material relied on, are substantially the same.
The selective references to facts and selective attachments to each matter shows that the ADB claim was made at the time that Ms Bridie was subject to serious allegations which would result in her dismissal. Ms Bridie was in receipt of correspondence from the general manager of Reliance in January and February 2020.
The further correspondence dated 23 April 2020, relating to the detailed list of serious allegations concerning misuse of the phone was attached to the general protections' application. The termination of employment letter was also attached to the general protections application and this letter clearly articulates the gravity of the allegations made against Ms Bridie. Given the nature of the allegations, it is not surprising to see the period of time to investigate and conduct the disciplinary process before her termination of employment. The ADB claim was made on 17 March 2020, and ultimately the dismissal occurred on 16 July 2020. It is not relevant as Ms Bridie contends that the time between the ADB claim and her dismissal causes the matters to be disconnected or remote. These allegations and facts contained in both matters are expressed in almost identical terms and relate to Ms Bridie's dismissal.
My conclusion relating to the connexion between the matters is in the context of the intention of the provisions contained in the Act.
Given the connectivity between the facts and allegations, it cannot be reasonably found that the two matters are tenuous or remote in connection.
While the ADB claim does not state that Ms Bridie was dismissed, the material facts relating to the awareness that a dismissal was to occur is based on the allegations regarding serious misconduct including Ms Bridie's statements in her ADB claim that she expected a termination of employment.
• The ADB claim states that it is a claim of sexual harassment, sex discrimination and victimisation. The state jurisdiction recognises applications concerning discrimination or victimisation that subjects a person to detriment and this includes termination of employment. While Ms Bridie may not have subsequently added to her claim the fact that she was dismissed, the ADB claim contains sufficient material relating to a threat or probable termination of employment. In any event, the ADB claim covered the period up to the application date. Section103 of the Anti-Discrimination Act[9] permits the Tribunal to amend an application to include additional complaints at any time. Victimisation is the behaviour that Mr Bridie alleges occurred i.e. the accusations of misconduct directed at her and which ultimately lead to her dismissal because she made a complaint of sexual harassment. Ms Bridie complains of the same behaviour in both matters, but describes this as the adverse action in her general protections' application.
[34] The proper test is the task of assessing whether the claim and application are of the kind captured by ss. 726 to 732 is "in relation to the dismissal" and to do this I am not required to consider the merits but whether the two matters are characterised or classified as applications for the purpose of s.725.[10] Further to be clear, while I have made observations regarding the seriousness of the misconduct allegations, this is no way any finding concerning the merit of the allegations made against Ms Bridie. The point of the assessment is whether the two matters are in relation to dismissal and they have a relationship other than a tenuous or remote relationship and captured by the provisions contained within Chapter 6, Part 6-1, Division 3.
[35] Having considered the material before me, I find that the ADB claim is an application made under another law intended by s.732 of the Act. The relationship between the ADB claim and the general protections application is demonstrated to have a common mix of facts, Ms Bridie is seeking compensation and the general protections application filed in this Commission is statute barred pursuant to s.725. The application is dismissed.
Respondent's closing submissions filed on 3 December 2020
Applicant's closing submissions filed on 22 February 2021
[1] Birch v Wesco Electrics (1996) Pty Ltd [2012] FMCA 5.
[2] Applicant's outline of submissions dated 16 November 2020, Submissions in reply dated 19 November 2020 and Closing submissions of the Applicant dated 23 February 2021.
[3] Written submissions of the Respondent dated 16 November 2020 and 4 December 2020 and oral submissions.
[4] Ms Bridie Claim of Sexual Harassment filed with the ADB on pages 11 -12.
[5] Group of documents signed by Joe Azzi general manager, attached to the ADB claim filed and served by Ms Mullally on 16 November 2020.
[8] Birch v Wesco Electrics (1996) Pty Ltd [2012] FMCA 5, Gill v Karan Grewal Pty Ltd T/A Curry Palace (2018) FWC 870 (this decision discussed the authorities concerning the phrases "in relation to", "in respect of" or "in connexion with") including Hazledine v Wakerley and Giddings [2016] FWC 4989 and Hazledine v Wakerley and Giddings [2017] FWCFB 500.
[9] Anti-Discrimination Act 1977 No 48.
[10] Hazledine v Wakerley; Giddings [2017] FWCFB 500 at [15] and [43].
Printed by authority of the Commonwealth Government Printer
Bridie Flanagan
Reliance Pty Ltd [2021] FWC 2663