Fair Work Act 2009 (Cth)

s.615A - Application for the President to direct a Full Bench to perform a function

Referral to a Full Bench - ss 615A, 615 and 739 of the Fair Work Act 2009 (Cth) - application refused.

[1] Dr Manu Chopra (the Applicant) has applied for a direction pursuant to s.615A of the Fair Work Act 2009 seeking the referral of a matter to a Full Bench of the Commission. The matter to which the referral application relates is a s.365 application. I heard Dr Chopra's referral application on 17 June 2020 and at the conclusion of the hearing I dismissed the application. This decision sets out my reasons. The relevant background may be shortly stated.

[2] On 11 March 2020, Dr Chopra made an application for the Commission to deal with a general protections application involving dismissal pursuant to s.365 of the Act. In his substantive application, Dr Chopra alleges that the College and six named individuals took adverse action against him.

[3] The College contends that Dr Chopra was employed under a limited fixed term contract that expired on 19 December 2019 and that he was not dismissed at the initiative of the College.

[4] The substantive application was listed for an extension of time hearing before Deputy President Mansini on 18 June 2020.

[5] The central issues in contest are whether there was a dismissal at all and, if there was, what was the date of that dismissal.

[6] Dr Chopra contends, in essence, that the Commission lacks the requisite jurisdiction to determine these issues, relying on Full Bench authority, Hewitt v Topero Nominees Pty Ltd T/A Michael's Camera Video Digital[1] and Milford v Coles Supply Chain Pty Ltd[2]. The College contends that these authorities can be distinguished on the facts of the present matter.

[7] The orders sought by Dr Chopra are set out [208] - [212] of the application dated 2 June 2020.

[8] In a reply submission filed on 15 June 2020, the College opposes the referral to a Full Bench.

[9] As I have mentioned, the Applicant seeks a direction, pursuant to s.615A of the FW Act, that the dispute be referred to a Full Bench to hear and determine.

[10] Section 615A of the FW Act states:

615A When the President must direct a Full Bench to perform function etc.

(1) The President must direct a Full Bench to perform a function or exercise a power in relation to a matter if:

(a) an application is made under subsection (2); and

(b) the President is satisfied that it is in the public interest to do so.

Note: The President gives directions under section 582.

(2) The following persons may apply to the FWC to have a Full Bench perform a function or exercise a power in relation to a matter:

(a) a person who has made, or will make, submissions for consideration in the matter;

[11] In Collinsville Coal Operations Pty Limited,[3] I set out the considerations relevant to the determination of such applications, as follows:

'[5] The issue for determination is whether I am satisfied that it is in the public interest to refer the agreement approval application to a Full Bench. The expression 'in the public interest', when used in a statute, imports a discretionary value judgment to be made by reference to undefined factual matters and confined only by the subject matter, scope and purpose of the relevant statute. [O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ]

[6] Sections 577 and 578 of the FW Act are relevant to the exercise of the President's powers under s 615A.

"The FWC must perform its functions and exercise its powers in a manner that:

(b) is quick, informal and avoids unnecessary technicalities; and

(d) promotes harmonious and cooperative workplace relations.

Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581)."

[8] Section 578 directs the Commission to take into account, among other things, the objects of the FW Act and 'equity, good conscience and the merits of the matter'.

[9] Section 581 is also apposite. It provides, relevantly, that the President is responsible for ensuring that the Commission performs its functions and exercises its powers in an efficient manner.'

[12] Similar observations were made in Lend Lease Building Pty Ltd and others[4] and Metropolitan Fire & Emergency Services Board.[5]

[13] The Applicant submits that there is a public interest in the transfer to the Full Bench for the following reasons:

Based on my submissions above, it should be readily apparent that this issue is of significant general public interest. Depriving a person of his or her day in court is a big deal and to do so on, what I have respectfully submitted is, a legal fiction, and is contrary to the authorities of Hewiit and Milford 2, or a natural consequence of the holding of these authorities, clearly denies these applicants natural justice.

I believe the trilogy of s.365 and s.366 matters decided by the Full Bench, specifically, Hewitt, Milford 2 and perhaps Chopra should this matter be heard by the Full Bench, will put to bed any confusion which exists within the case management team regarding its proper role in managing s.365 applications.

I respectfully submit that it should never have to come down to the legal research ability of an applicant, who is an ordinary citizen, for him to be provided his rights at the FWC. Not that my ability in this sphere is good, but if I had not 'stumbled' across the decisions of Hewitt and Milford 2 and others, these Submissions would have looked very different. And my s.365 application would have been, I daresay, dismissed just like DP Mansini did in Manesh based on the same reasoning and the same use of discretion.

The thrust of my Submissions is that the manner in which my s.365 application has been handled is an error of procedure and principle and will lead to a decision such as in Manesh which I respectfully submit was incorrectly decided by DP Mansini who will naturally use it as an authority along with many of her other decisions and decisions by many other Members to decide my matter.

The real issue here is that if a respondent has not argued that it dismissed an applicant, then s.366 cannot be enlivened unless the applicant has stated or agreed that he was dismissed more than 21 days prior to his filing the s.365 application. If the applicant alleges that he was dismissed and that he filed his application within time, then the FWC has no jurisdiction to hear a factual dispute to determine an Effective Date of Dismissal or to make a determination under s.366(2) to grant an Extension of Time. All the FWC can do is to hold a conference.

I respectfully submit that the incorrect test has been used by the FWC in this matter, and in other similar matters in the past, in which a respondent alleged resignation or alleged the end of employment due to effluxion of time but did not allege a dismissal, whereas an applicant did allege a dismissal which had occurred within 21 days of his filing the s.365 application. In all such matters, if the case management team and the FWC followed the same procedure as it did I my case and arranged an Extension of Time hearing, or a combined Effective Date of Dismissal and an Extension of Time hearing, then these matters were incorrectly decided, with respect. The applicants in all these matters were denied natural justice since they were denied a hearing at the Federal Court or at the Federal Circuit Court.

I respectfully submit that the correct test is this: section 366 is not enlivened unless and until a "definite and certain" conclusion is reached by the FWC that there is no dispute about there being a dismissal, there is no dispute about the date of dismissal, and there is no dispute about the application being filed out of time. Further, I respectfully submit that this "definite and certain" standard is the same high threshold as the standard to grant summary dismissal under the no reasonable prospects of success standard in s.587 of the FW Act.

Should the President decide that my matter does not raise public interest under s.615A(1)(b), then I request that DP Mansini recuse herself from handling this matter further, and that a Member with fresh eyes and fresh mind be appointed either by the President or by the National Practice Leader to consider my arguments presented in this Submission. If at all possible, the Member appointed should not have decided a s.366 matter earlier so that the arguments raised in these Submissions are considered on their own merit.

[14] I am not persuaded that it is in the public interest to refer this dispute to a Full Bench.

[15] The following matters tell against granting the referral:

• the substantive application has been listed for hearing on 18 June 2020, referral to a Full Bench will result in considerable delay;

• there is no evident conflict in Full Bench authority such as to require further consideration by a Full Bench;

• in the event that the jurisdictional issues are decided against Dr Chopra there will be contested facts which will need to be determined and this would be done more expeditiously by a single member; and

• in the event that Deputy President Mansini finds against Dr Chopra he may seek permission to appeal.

[16] For the reasons given I am not persuaded that it is appropriate to refer the dispute to a Full Bench. Accordingly, I dismiss the Applicant's application.

[1] [2013] FWCFB 6321

[2] [2019] FWCFB 7658

[3] [2014] FWC 3129

[4] [2014] FWC 5026 at paragraphs [5]-[8]

[5] [2014] FWC 2498 at paragraphs [8]-[13]

Printed by authority of the Commonwealth Government Printer