Fair Work Act 2009

s.394 - Unfair dismissal

Electricity Networks Corporation T/A Western Power

(U2022/1288, U2022/1289, U2022/1290, U2022/1291, U2022/1292, U2022/1293, U2022/1294, U2022/1295, U2022/1296, U2022/1297, U2022/1298, U2022/1299, U2022/1300, U2022/1301, U2022/1302, and U2022/1365)

Application for an unfair dismissal remedy - interim procedural application - application for directions on procedure - directions to stay application - application for Fair Work Commission proceedings to be stayed pending outcome of proceedings in Supreme Court of Western Australia - material overlap of facts and issues - one Applicant party to Supreme Court proceedings - statutory scheme of Fair Work Act 2009 - interim application dismissed

• [1] On 31 January 2022, sixteen individuals (the Applicants) applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for unfair dismissal remedies (the Applications). The Applicants allege they were unfairly dismissed by Electricity Networks Corporation t/a Western Power (the Respondent). The Applicants claim to have been dismissed by the Respondent on 10 January 2022.

• [2] The Applicants all have the same representative, Hotchkin Hanly Lawyers. Due to the Applications being lodged against the same Respondent, all consisting of similar facts, and all the Applicants being represented by the same representative, it was requested that the matters would be heard jointly at this stage.

• [3] The matter was originally allocated to the former Deputy President Mansini. The Applications were then reallocated to my Chambers on 10 May 2022, after Her Honour's departure to the Federal Court.

• [4] On 5 May 2022, the Applicant's representative filed a Form F48, application for directions on procedure (the Directions Application), which requested:

• a stay of the Applications pending determination of the Supreme Court of Western Australia civil matter 1194/2022 - Jayasundera v Andrew Robertson (Chief Health Officer), or further order of the Commission.

• [5] Mr Dinith Jaysundera (Mr Jaysundera), who is one of the Applicants, is currently challenging the validity of the Critical Infrastructure Worker (Restrictions on Access) Directions (Critical Infrastructure Directions**)** in the Supreme Court of Western Australia (the Jayasundera Proceedings). The Jayasundera Proceedings have been adjourned pending the outcome of other similar proceedings.

• [6] On 11 May 2022, the parties were sent directions in relation to the Directions Application. The Directions Application was consequently subject to a Hearing before the Commission on 9 June 2022.

• [7] This decision concerns the Directions Application and whether the Applications should be stayed pending the outcome of the Jayasundera Proceedings. In short, I have determined it is not appropriate, in the circumstances, to adjourn the matter pending the outcome of the Jayasundera Proceedings.

• [8] The Directions Application is made under section 589(1) of the Act, which provides that the Commission may issue procedural decisions as to how, when, and where a matter is to be dealt with. It is accepted that the Commission has the discretionary power pursuant to section 589 of the Act to stay an application before it.[1]

• [9] Section 381 of the Act sets out the objects of the Act's unfair dismissal provisions which includes, at section 381(1)(b)(i) of the Act, establishing procedures that are quick, flexible, and informal.

• [10] Section 578 of the Act provides that, in performing its functions or exercising power in relation to a matter, the Commission must take into account the objects of the Act.

• [11] Section 577 of the Act describes the manner in which the Commission must perform its functions. Notably, at 577(b) of the Act, the Commission must exercise its powers in a manner that is quick, informal, and avoids unnecessary technicalities.

• [12] The issue of whether the Commission should exercise discretion to stay an application pending the outcome of an application in another jurisdiction has been traversed with regularity in the past. The considerations that must be taken into account when determining whether it is appropriate to grant an adjournment have been well defined.[2]

• [13] During proceedings, the Applicants' representative noted that Deputy President Beaumont had determined an application for directions on procedure in Hall v St Bartholomew's House Inc (Hall).[3] The applicant in matter before the Deputy President had also engaged the Applicants' representative from the current matter.

• [14] The decision in Hall concerned a request to stay an unfair dismissal application whilst awaiting proceedings in the Supreme Court of Western Australia. The directions application before the Deputy President in that matter was made on substantially similar grounds, however not identical, as the one currently before the Commission.

• [15] In refusing the application for directions, The Deputy President concluded that it was not apparent that the Supreme Court proceedings involved substantially the same issues as the unfair dismissal application and the outcome would not substantially aid the Commission's determination. The Deputy President further highlighted the importance of dealing with unfair dismissal applications expeditiously and the lack of certainty as to the timeframe for an outcome of the Supreme Court proceedings.[4]

• [16] The Deputy President discussed the considerations to be taken into account in determining whether to grant an adjournment with reference to previous decisions of the Commission and the Federal Court.[5]

• [17] In Sharon Bowker; Annette Coombe; Stephen Zwarts v DP World Melbourne Limited T/A DP World; Maritime Union of Australia, The-Victorian Branch and Others (Bowker),[6] the Commission considered it appropriate to have regard to the considerations used in the courts in considering applications of this kind. Reference was made to the judgment in Sterling Pharmaceuticals Pty Limited v The Boots Company (Australia) Pty Limited (Sterling Pharmaceuticals).[7]

• [18] It was observed in Bowker, that the approach in Sterling Pharmaceuticals had been adopted in several subsequent decisions, but it was noted that the list of considerations set out in Sterling Pharmaceuticals was not exhaustive and is not a strict checklist of preconditions.[8]

• [19] In Shane Rolls v MacMahon Contractors Pty Ltd the Commission noted the application for directions requested an adjournment for an undefined period of time.[9] In rejecting the application the Commission again highlighted the expeditious manner in which the Commission must deal with applications.[10]

• [20] The decision to grant a stay in an application of this kind is a matter of discretion to be exercised on a case-by-case basis,[11] having regard to the statutory framework and all the relevant circumstances before the Commission.[12]

• [21] It is the Applicant's opinion that if the Supreme Court determines the Critical Infrastructure Directions were invalid and unlawful, and those same directions were relied upon as a basis for dismissal, this would mean that the dismissal was based on an unlawful direction from the Chief Health Officer of Western Australia. Therefore, negating the Respondent having a valid reason for dismissal relating to the Applicants' capacity or conduct under section 387(a) of the Act.

• [22] The Applicant provides that approving the stay of proceedings would avoid the potential or inconsistent factual and legal findings. In reference to Jayasundera Proceedings, it is submitted that the granting of the adjournment would lessen the burden of costs associated with running the proceedings concurrently.

• [23] The Applicants' representatives are also representing Mr Jaysundera in the Jayasundera Proceedings. The Jayasundera Proceedings are currently stayed pending the outcome other related proceedings referred to as the Falconer Proceedings.[13]

• [24] The Applicants submit that the practical effect of the Critical Infrastructure Directions is equivalent to the directions which are the subject of the Falconer Proceedings. That is, those directions were issued under the Public Health Act 2016 (WA) and restrict access to certain sites unless individuals have received at least one dose of an approved COVID-19 vaccination by a certain date.

• [25] The Falconer Proceedings are listed for a trial in the Supreme Court before Justice Allanson on 13 July 2022 to 15 July 2022.

• [26] The Applicants argue that if the Supreme Court finds the directions subject of the Falconer Proceedings are invalid and unlawful, the Court will come to the same conclusion in the Jayasundera Proceedings.

• [27] The Applicants confirmed in submissions and in the hearing, that Justice Allanson of the Supreme Court had adjourned all judicial review proceedings concerning directions of this nature pending the outcome of the Falconer Proceedings. The Applicants submit that the Commission should adopt the same approach for the Applications.

• [28] The Applicants are of the opinion that the Supreme Court will issue a determination in the Falconer Proceedings urgently after the trials and therefore any adjournment of these proceedings would be significant.

• [29] The Applicants submit that the apparent merit of the Applications and novel argument in response to the Respondent's employer direction should weigh in favour of granting an adjournment. The Applicants also submit that not granting the adjournment of the Applications would allow multiplicity of actions concerning similar issues and give rise to inconsistent factual and legal findings.[14]

• [30] The Respondent opposes the Applicants' request for a stay.

• [31] The Respondent's direct interest is the prompt disposal of the unfair dismissal applications, including the potential prejudice against the Respondent if there is to be an indefinite stay of proceedings.

• [32] The Respondent submits that even if the Falconer Proceedings and Jayasundera Proceedings are successful, there is no relevant or decisive link between the outcome of the other proceedings and if the Applicants' dismissals were fair.

• [33] The Respondent submits that there is no relevant advantage associated with the proposed stay of proceedings, including the absence of any efficient or expediency consideration.

• [34] The Respondent submits concern that there is no defined duration or indication as to when an outcome will be reached in the Jayasundera Proceedings. The Respondent highlights a concern over the potential loss or degradation of evidence if the proceedings are adjourned.

• [35] The Respondent notes that there is potential for the proceedings before the Supreme Court to eventually become subject to appeals in higher courts, potentially giving rise to recurring adjournments.

• [36] At the core of the Applicants' argument is the issue of whether the Respondent's direction constituted a lawful and reasonable employment direction and that the subsequent noncompliance of the Applicants constituted a valid reason for their dismissals.[15] Accordingly, there is some overlap in the considerations of the Applications and a potential outcome in the Jayasundera Proceedings which concern the legal validity of the Critical Infrastructure Directions.[16]

• [37] Despite the Applicants' submissions, and the overlap of the issue, the Commission is not satisfied that a decision as to the validity or invalidity of the directions in the Falconer Proceedings, and the Critical Infrastructure Directions in the Jayasundera Proceedings, are likely to have a substantial effect on the progressing of the Applications to the extent that an adjournment should be granted.

• [38] To echo the Deputy President in Hall, the directions central to the Falconer Proceedings have no bearing on the Applications currently before the Commission. The Jayasundera Proceedings are concerned with the validity of the directions pursuant to the Public Health Act 2016 (WA). The Commission's concern is whether it is to grant a remedy for unfair dismissal pursuant the Fair Work Act 2009 (Cth). As highlighted by the Respondent, even if the Jayasundera Proceedings result in a determination that the Critical Infrastructure Directions were invalid, the parties must still address whether the dismissals were unfair under the Act.[17]

• [39] The determination of an unfair dismissal claim requires the Commission to account for the circumstances surrounding the dismissals, one of these circumstances is the reasonableness and lawfulness of the employer's direction. In determining the lawfulness and reasonableness of a direction alone, the Commission must consider the specific circumstances of the matter before it and must account for the subject matter, context, and any factual findings.[18] The outcome of the Jayasundera Proceedings would not address several issues that the Commission must consider in the unfair dismissal proceedings and would cause a lengthy delay in the Commission being able to ponder these issues.[19]

• [40] In relation to allowing multiplicity of proceedings regarding similar issues, the Commission notes that the Jayasundera Proceedings and the Applications seek to determine considerably different disputes. The facts to be determined for the grant of an unfair dismissal remedy are not the same as what needs to be determined by the Supreme Court in review proceedings. The arguments to be advanced in both proceedings are considerably different, arise under two distinctly different pieces of legislation, and give rise to entirely different potential outcomes. As highlighted by the Respondent, it is not yet known the depth of individual issues that may be raised by each of the sixteen Applicants. The issues before the Supreme Court and the Commission, even in their current form, are not substantially the same.

• [41] The Respondent has validly submitted concern over the indefinite period of adjournment. The Commission must deal with unfair dismissal applications in an expeditious manner.[20] As highlighted by the Deputy President in Hall:

"This proposition arises from several considerations which include the nature of the unfair dismissal jurisdiction, the desirability of avoiding prejudice to parties - from having evidence lost or degraded or from the nature of the remedies available - and incurring unnecessary costs, and the statutory scheme of the Act." [21]

• [42] The Jayasundera Proceedings, alongside at least five other review proceedings, have been adjourned pending the outcome of the Falconer Proceedings. The Commission notes that the Falconer Proceedings encompass two applications made by Mr Ben Falconer.[22] The Applicant submits that the Supreme Court will issue a decision as a matter of urgency, however, there is no basis on which to confirm such a conclusion so confidently. The Commission is not aware of the potential future programming of the review proceedings in the Supreme Court.[23] There is no soundly quantifiable timeframe indicating when the Falconer Proceedings will be resolved, let alone the Jayasundera Proceedings.[24]

• [43] The ability of the parties to adduce evidence,[25] and the granting of certain remedies,[26] will become increasingly more difficult over the course of an adjournment. The adjournment would cause significant obstruction to efficient case management and cause the Respondent prejudice in preparing its defence. As highlighted above, the merits and specific circumstances of each individual matter is yet to be fleshed out. A further delay in the uncovering of issues specific to each of the Applicants presents a significant detriment to the Respondent adducing relevant evidence in rebuttal.

• [44] Adjourning to await the outcome of the Jayasundera Proceedings would give rise to considerable delay in the issuing of directions, the hearing of, and the determination of the sixteen individual unfair dismissal applications. In granting the adjournment, the Commission is of the opinion that it would not be exercising its duties in the manner prescribed by the Act.

• [45] Having regard to the statutory framework, all the relevant circumstances, and the appropriate considerations, the Commission is not satisfied that it should exercise its discretion to grant the application for directions on procedure. The balance of the considerations in this matter, including that of the public interest, do not weigh in favour of staying the progress of the unfair dismissal applications. The application for directions on procedure is dismissed. The parties will be contacted by Chambers in due course regarding the future programming of the Applications.

L Swanson of Hotchkin Hanly Lawyers for the Applicant.

[1] [2014] FWC 7326, at [4].

[2] See (1982) 7 ACLR 202, at 206; concerning an application to stay civil proceedings pending a criminal trial. The considerations have been taken, in part, as relevant to a stay awaiting civil proceedings; see [2012] FCA 745, at 9.

[3] [2022] FWC 591.

[5] Ibid, at [27]; in reference to [2014] FWC [7326] and (1992) 34 FCR 287.

[6] [2014] FWC [7326], at [5].

[8] [2014] FWC [7326], at [6]; citing [2004] FCA 187 and [2011] FCA 424, [16].

[9] [2006] AIRC 55, at [26].

[11] [2012] FCA 745, at 9; referencing (1982) 7 ACLR 202, at 206.

[12] [2022] FWC 591.; referencing [2021] FWC 5178, at [18].

[13] Falconer v CHO & Anor (CIV 2286/2021) and Falconer v Commissioner of Police (CIV 2308/2021).

[14] [2016] FWC 594, at [11].

[15] Fair Work Act 2009 (Cth), s.387(a).

[16] See [2022] FWC 849, at [22]-[23], [63], and [70]; endorsed by the Full Bench in [2022] FWCFB 101.

[17] See [1998] AIRC 1284; the Commission did not agree that the determination of other proceedings would remove the need for the Commission proceedings.

[18] [1938] HCA 44; (1938) 60 CLR 601, at 621-622.

[19] [2021] FWC 5991, at [13]-[16].

[20] Fair Work Act 2009 (Cth), s.577.

[21] [2022] FWC 591, at [52].

[22] Falconer v CHO & Anor (CIV 2286/2021) and Falconer v Commissioner of Police (CIV 2308/2021).

[23] See [2001] AIRC 236, at [9]; the Full Bench noted the programme established by the Federal Court was expeditious.

[24] The Jayasundera Proceedings, being the only that have relevant overlap with the Applications.

[25] [2022] FWC 591, at [52].

[26] [2021] FWC 5991, at [16].

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