Gao v Tin

Federal Court of Australia|2020-04-09|Before: Steward J

The Applicant's Originating Application 15 On 17 December 2019, the applicant filed an originating application in this Court alleging dismissal in contravention of a general protection under the FW Act (Form 79). That application was not accompanied by any other document. In the application, the applicant set out the claims which were before the Commission in respect of his alleged dismissal. Relevantly, the applicant stated that he "relies on s365 of the Fair Work Act 2009". He thus purported to make a "general protections court application", to use the language of s. 370. And he sought relief in the form of: unpaid wages, annual leave, loading, personal leave entitlements and superannuation; correction to his payslips; compensation from the time of the alleged unfair dismissal to the time he secured part-time employment; and an apology. 16 In response to the applicant's originating application, the respondent filed an interlocutory application seeking "[t]hat the Applicant's pleading be struck out, pursuant to Rule 16.21 of the Federal Court Rules 2011" and an order as to costs. This application was accompanied by an affidavit sworn by Mr Guy Israeli, solicitor for the respondent, on 23 March 2020. In broad terms, the respondent complained that: (i) the applicant had not clearly exposed the relevant cause of action; and (ii) the applicant's originating application was not accompanied by a certificate issued by the Commission as required by r. 34.03 of the Rules.

The respondent's interlocutory application 19 The respondent's interlocutory application may be dealt with swiftly as it is, with respect, misconceived on its face. The applicant has filed no "pleading". He has only filed an originating application. The term "pleading" is defined in Sch. 1 (Dictionary) to the Rules as follows: pleading means: (a) a statement of claim; or (aa) an alternative accompanying document referred to in rule 8.05; or (b) a statement of cross claim; or (c) a defence; or (d) a reply; or (e) any pleading after a reply; but does not include: (f) an originating application; or (g) an interlocutory application (h) a notice of any kind; or (i) an affidavit. (Emphasis added.) 20 It follows that there is nothing for the Court to strike out as the applicant's originating application is clearly not a "pleading" upon which r. 16.21 of the Rules could operate. The respondent's interlocutory application is therefore dismissed. That outcome, however, is of limited assistance to the applicant as he confronts a more fundamental obstacle.

The Court's jurisdiction 21 In simple terms, the Court does not have jurisdiction to hear the applicant's purported general protections court application. In other words, there is a "jurisdictional bar" to the Court adjudicating on whether he was dismissed in contravention of Pt 3-1 of the FW Act. That is because the applicant has not been issued a certificate pursuant to s. 368(3)(a) of the FW Act. It follows that pursuant to s. 370(a)(i) of the FW Act, an essential condition to the Court's jurisdiction has not been satisfied: see Chen v. Birbilis [2016] FCA 661 at [18] per North J. The operation and rationale of s. 370(a)(i) was described by Pagone J. in Ward v. St Catherine's School [2016] FCA 790 as follows (at [6]): It is significant that the certificate required by s 370(a)(i) to trigger a person's entitlement to make an application to the Court, is a certificate in which the Commission expresses its satisfaction about a state of affairs concerning the ability of the dispute to be resolved by means other than arbitration. The entitlement under s 370 of the Act to make a general protections court application, in other words, is made to depend upon the Commission's evaluation of the facts and circumstances bearing upon the prospects of the parties resolving their dispute about dismissal by means other than arbitration and proceedings in Court (unless their application included an application for an interim injunction). The statutory condition for a certificate from the Commission reveals a clear legislative policy that such dismissal disputes are to be dealt with by the Commission, and by dispute resolution procedures other than by arbitral and judicial determination, unless those procedures have been or are likely to be unsuccessful. The legislative policy is that Court processes to resolve such dismissal disputes are then only to be engaged when the Commission, as an independent statutory authority, is itself satisfied that those other means for resolution of the dismissal disputes are, or are likely to be, unsuccessful. It is not sufficient to enliven a litigant's entitlement to bring a dispute to the Court for the dispute about dismissal to have been referred to the Commission unsuccessfully. Nor is it sufficient to enliven the entitlement to make a general protections court application in relation to a dismissal dispute that the dispute had been made to, and was pending in, the Commission. What is required to enliven the entitlement to make such an application to the Court is not the mere formality of a certificate by the Commission but, rather, the certification by the Commission of it being satisfied that the dismissal dispute is not able to be resolved by the alternative process specifically provided for by the legislature. (Emphasis added.) I respectfully agree with his Honour's observations. 22 The terms of s. 370(a)(i) are clear. The absence of the certificate cannot be overcome by the applicant's conviction that he has been treated poorly by his erstwhile employer. The Court has no discretion in waiving the requirement for the certificate. The applicant's reliance, therefore, on "Note 2" under s. 370 is, with respect, misguided as that note pertains to the Court's discretion with respect to the time in which a general protections court application can be made. 23 For completeness, I note that it was not otherwise contended by the applicant that s. 370(b) of the FW Act applies. To elaborate, the applicant's general protections court application does not include an application for an interim injunction (e.g. for reinstatement) so as to eliminate the need for a certificate: see Knight v. Visionstream Australia Pty Ltd [2017] FCA 1513 at [32] per O'Callaghan J.

Costs 24 To the extent the respondent seeks costs, I note that s. 570(2) of the FW Act confers a residual discretion on the Court, even if it is satisfied, for example, that the applicant instituted the proceeding without reasonable cause: Milardovic v. Vemco Services Pty Ltd (No 2) (2016) 242 F.C.R. 492 at 502 [47] per Mortimer J. In the circumstances of this case, including the outcome of the respondent's interlocutory application and the position of the applicant, I consider it appropriate to exercise that residual discretion in favour of the applicant. There will be no order as to costs.

Conclusion 25 For the foregoing reasons, I dismiss: (a) the applicant's application filed on 17 December 2019 on the basis that the Court has no jurisdiction to hear and determine it; and (b) the respondent's interlocutory application filed on 26 March 2020, with no order as to costs I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Steward.

Factual background 11 The applicant commenced employment with the respondent as a sales team member in February 2015. The respondent contends that, on 8 March 2019, the applicant resigned from his position and the respondent accepted that resignation. In contrast, the applicant denies that he resigned. He contends that he was unfairly dismissed by the respondent on 9 March 2019 after requesting a reduction in his working hours. 12 The procedural history would appear not to be in dispute. The applicant represented himself at all times. On 25 March 2019, the applicant made an unfair dismissal application to the Commission pursuant to s. 394 of the FW Act. On 16 April 2019, the parties participated in a conciliation. On 17 April 2019, the applicant lodged a Notice of Discontinuance with respect to his unfair dismissal application. On the applicant's account, he did so on the basis that his case was not "purely about unfair dismissal" and involved other allegations such as underpayment, errors in his payslips, and outstanding leave loading and personal leave entitlements. On the same day, the applicant made a "general protections application involving dismissal" to the Commission pursuant to s. 365 of the FW Act. He alleged that the respondent had contravened s. 340 of the FW Act. That application was filed outside the 21-day period prescribed by s. 366 of the FW Act. The applicant therefore needed an extension of time. 13 The Commission determined that the applicant should not be allowed a further period within which to lodge his general protections application: Gao v. Tin Staffing Services [2019] FWC 5477. The Deputy President was not satisfied that "exceptional circumstances" existed for the purposes of s. 366(2) of the FW Act. The applicant sought to appeal that decision but was denied permission by the Full Bench of the Commission: Gao v. Tin Staffing Services [2019] FWCFB 8432. The Full Bench concluded at [18]-[19] of its decision: We also do not consider that the Deputy President's conclusion was unreasonable or manifested any injustice, nor is it counterintuitive. We are not persuaded the appeal raises any issues of importance or general application, or that there is a need for Full Bench guidance on the question of what constitutes "exceptional circumstances" for the purposes of s 366(2) of the FW Act. The matters identified by Mr Gao as justifying the grant of permission in the public interest lack any real connection to the subject matter of the decision, and we do not consider that they are such as to require the grant of permission under s 604(2). We do not consider the grant of permission to be in the public interest nor do we consider that there is any basis upon which permission to appeal should be given. Permission to appeal is therefore refused. 14 Critically, because the applicant failed to secure an extension of time, his intended application under s. 365 was not before the Commission in the requisite sense to engage s. 368 of the FW Act. It follows that the Commission did not, and was not called upon to, issue any certificate under s. 368(3)(a).

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