s.372 - General protections - strikeout application.

[1] This matter involves an application lodged under section 372 of the Fair Work Act 2009 (the Act) by Ms Leza Howie (the Applicant). The Respondents are Norilsk Nickel Australia Pty Ltd; Dmitry Lafitskiy; Dennis Fulling; Roman Panov; Dmitry Kondratiev; and Edwin Leeuwin (the Respondents).

[2] The Applicant commenced employment with the First Respondent (Norilsk Nickel) in July 2010 in the position of Human Resource Manager. The Applicant's last day of employment was 12 August 2011. This application was made on 28 November 2011.

[3] In Norilsk Nickel's response to the General Protections Dispute Application Norilsk Nickel asserts that the application involves a dismissal of the Applicant and so is out of time. It argues this is so because in reality the application is one to be made under section 365 of the Act and so is subject to the requirements in section 366(1)(a) that the application be made within 60 days after the dismissal took effect.

[4] The application was listed for a conference.

[5] Prior to the conference being held the Respondents lodged an application to 'strikeout' the general protections application (the Strikeout Application) on the basis the application was made outside the time limit and so should be struck out.

[6] The Respondents' representative pressed for the Strikeout Application to be heard as a preliminary issue prior to the conference being conducted. I declined to deal with this Strikeout Application prior to the conference.

[7] The conference proceeded on 6 March 2012. The Respondents' representatives indicated that they were instructed not to participate in conciliation. Rather the Respondents' representatives advised that they continued to press to have the Strikeout Application determined by Fair Work Australia.

[8] Accordingly I will now determine the Respondents' Strikeout Application. The parties have provided written submissions to me on this matter.

[9] The Applicant has provided a detailed background in terms of her employment experience with Norilsk Nickel. In summary she says that she encountered some difficulties in early 2011 when Norilsk Nickel was restructured and she was demoted without explanation. These changes resulted in the Applicant being required to report to a Managing Director who did not speak English and who refused to deal with her.

[10] Between February 2011 and July 2011 several of the Applicant's responsibilities and authorities were removed.

[11] During her employment she raised a number of complaints with Norilsk Nickel regarding threatening behaviour of other companies senior management, being removed from due diligence and contract negotiations regarding particular contractual matters, bullying behaviour by the second, third, fourth, fifth and sixth respondents, being asked to create positions and process a number of section 457 visas for Russians with no relevant skills, a refusal by the Respondents to deal with unsubstantiated allegations of bullying made about the Applicant by a Senior Manager, differential treatment between Russian employees and Australian employees on comparative levels and yelling matches occurring in the office and on site causing distress to other employees.

[12] The Applicant says Norilsk Nickel ignored these concerns and advised her nothing was going to change.

[13] Norilsk Nickel did not pay a bonus to the Applicant which was made to employees of Norilsk Nickel who were of Russian extraction.

[14] The application then includes the following statement:

"The applicant felt she had no choice but to resign and gave written notice of her resignation to the first respondent on 25 May 2011."

[15] The application goes on to particularise the claim as follows:

Under the heading Section 340(1):

"20. The respondents took adverse action against the applicant by discriminating between the applicant and other employees of the respondent because the applicant had a workplace right; namely the ability to make a complaint in relation to her employment."

Under the heading Section 351 Discrimination:

"22. The respondents took adverse action against the applicant by discriminating between the applicant and other employees of the respondent because of her sex and national extraction."

[16] On the Form F8-Application for FWA to Deal with a General Protections Dispute (the Application) completed on behalf the Applicant at section 3., in answer to the question as to whether the alleged contravention involve the dismissal of the Applicant, the Applicant has stated "No".

[17] The Respondents' submit that the Application by Ms Howie (which involves an alleged dismissal of Ms Howie) is out of time.

[18] The Respondent's argue that the Application pleads that as a result of Norilsk Nickel's conduct, Ms Howie had no choice but to resign. She pleads a constructive dismissal.

[19] Given that the alleged contravention involves a dismissal, it is submitted that Fair Work Australia must consider the Application under Subdivision A of Division 8 of Part 3-1 of the Act (Contraventions Involving a Dismissal) and that therefore the Application was filed outside of the 60 day time limit.

The Applicant's Application Involves a Dismissal

[20] Ms Howie pleads the following in her application:

Paragraph 6 - when she complained about the alleged demotion that if she did not like the situation "she should resign".

Paragraph 9 - between February and July 2011 several of the Applicant's post-demotion responsibilities and authorities were removed.

Paragraph 10 - the Applicant pleads that she raised a number of complaints with the Respondents. Paragraph 10(b) pleads:

"the senior management team including the Applicant being removed from due diligence and contract negotiations processes (which were taken over by Inter Mining Pty Ltd and Reachem Ply Ltd) resulting in the Applicant not longer having any meaningful role in the First Defendant's operations."

[21] This pleading in effect alleges that Norilsk Nickel removed her role and duties as part of allegedly forcing her out of the business.

[22] Paragraph 13 - pleads that on the basis of Norilsk Nickel's conduct that:

"The Applicant felt she had no choice but to resign and gave written notice of her resignation to the First Respondent on 25 May 2011."

[23] Paragraph 14 - then pleads that her last day of employment with Norilsk Nickel was 12 August 2011.

[24] The Respondents' submit that the Application pleads that as a result of Norilsk Nickel's conduct Ms Howie had no choice but to resign. Ms Howie has pleaded a constructive dismissal.

[25] The reference to "Contraventions Involving Dismissals" in Subdivision A of Division 8 of Part 3-1 includes a constructive dismissal. This is because the notion of a dismissal under the Act includes a constructive dismissal. Under section 386 of the Act a person has been dismissed if "the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct engaged in by his or her employer."

[26] Accordingly the Respondents' argue the Applicant alleges contraventions involving a dismissal under Subdivision A of Division 8 of Part 3-1 of the Act.

[27] Therefore the Application must be dealt with under Subdivision A of Division 8 of Part 3-1.

[28] An application alleging a "Contravention Involving a Dismissal" must be lodged within 60 days of dismissal (in this case the constructive dismissal).

[29] The employment was terminated on 12 August 2011. The Application was made on 28 November 2011 and is outside the 60 day time limit and should be struck out and dismissed. The Applicant has provided no reason as to why the Application was lodged out of time, nor has she set out any basis for an extension of the time limit.

[30] The Respondents have made an application to Fair Work Australia that the Application be 'struck out' because it involves a dismissal and is therefore out of time.

(a) the adverse action alleged in the Application is that the Respondents discriminated between the Applicant and other employees of Norilsk Nickel;

(b) the Applicant has not pleaded constructive dismissal; and

(c) Fair Work Australia does not have the power to 'strikeout' the Application.

[32] Adverse action is not limited to dismissal, but covers a wide range of actions, as listed in section 342. Pursuant to section 342 one of the ways that an employer can take adverse action against an employee is to discriminate between the employee and other employees of the employer.

[33] The Applicant claims that the Respondents took adverse action against her by discriminating between her and other employees of Norilsk Nickel by:

(a) failing to increase the Applicant's salary in line with other employees;

(c) failing to pay the Applicant the Lake Johnson Bonus, even though other employees had received it; and

(d) removing the Applicant's responsibility and authority without explanation.

[34] This discrimination constitutes the adverse action taken by the Respondents.

[35] Nowhere in the Application has the Applicant pleaded:

(b) that the adverse action taken by the Respondents is a dismissal.

[36] The Applicant acknowledges that she resigned from her employment with Norislk Nickel, and does not assert that she was forced to resign because of the conduct of the Respondents.

[37] At paragraph 13 of the Application, the Applicant says the following:

"The Applicant felt she had no choice but to resign and gave written notice of her resignation to the First Respondent on 25 May 2011."

[38] The Applicant submits that paragraph 13 of the Application:

(a) is not a pleading of constructive dismissal; and

(b) is merely a description of how the Applicant felt at the time of resigning her employment.

[39] The Applicant's response to question 3.1 of the Application confirms that the Applicant has not claimed that the alleged contravention involves a dismissal.

[40] The Application was brought under section 372 of the Act, not section 365, because the Applicant was not dismissed and she had no standing (and was not entitled) to make a section 365 application.

[41] Pursuant to section 372, a person can apply to Fair Work Australia to deal with a dispute if the person:

(a) alleges a contravention of Part 3-1 of the Act; and

(b) is not entitled to apply to Fair Work Australia under section 365 to deal with the dispute.

(a) alleges a contravention of Part 3-1 of the Act; and

(b) was not entitled to apply to Fair Work Australia under section 365 because the Applicant had not been dismissed from her employment.

[43] The Applicant therefore meets the prerequisites to bring an application under section 372.

[44] There is no time limit in respect of applications brought under section 372.

[45] The Applicant submits that Fair Work Australia does not have the power to 'strikeout' the Application.

[46] If an application is made under section 372, Fair Work Australia's powers are limited to:

(a) conducting a conference to deal with the dispute (if the parties agree to participate); and

(b) advising parties if it considers that claim would not have reasonable prospects of success.

[47] Ultimately, if the Respondents do not agree to participate in a conference with Fair Work Australia, then the Applicant may make a General Protections Application directly to the Court without a conference being held by Fair Work Australia and without a certificate being issued by Fair Work Australia.

[48] Both parties referred to the decision of Hansen v Apex Cleaning & Polishing Supplies Pty Ltd T/A Apex [ [2011] FWA 1566] wherein Commissioner Cribb considered Fair Work Australia's powers with regards to general protections applications.

[49] In that decision Commissioner Cribb was determining a jurisdictional objection to Fair Work Australia issuing a certificate under section 369 of the Act. The objection raised was that there was not a valid application before the Tribunal under section 365 of the Act because the applicant in that matter it was asserted had not been dismissed by the respondent. It was argued therefore that Fair Work Australia could not issue a certificate under section 369, absent a valid application.

[50] Commissioner Cribb's consideration and decision on this objection was as follows:

"[25] I have considered carefully all of the material before me and I have formed the view that there is no jurisdictional impediment to the issuing of a certificate pursuant to s.369 of the Act in this matter. There are a number of reasons for this view.

[26] The first reason goes to the wording of s.369 of the Act. Section 369 states that:

If FWA is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, FWA must issue a certificate to that effect."

[27] The certificate that is issued by the Tribunal, pursuant to this clause, states that:

"...Fair Work Australia certifies that it is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful."

[28] What section 369 requires the Tribunal to do, therefore, is to issue a certificate if it is satisfied that all reasonable attempts to resolve the dispute have been/unlikely to be, unsuccessful. That is all that is required by the Tribunal in issuing a certificate - to certify that all reasonable attempts by the Tribunal have been unable to resolve the dispute.

[29] Further, s.370 of the Act requires that the Tribunal must advise the parties that a general protections court application would not have a reasonable prospect of success if FWA is of that opinion or considers that to be the case. The reasons for such a view being formed may include doubt as to whether the applicant could sustain an argument in the court that he/she had been dismissed. However, the Tribunal is still required to issue a certificate even if the concerns about the application succeeding are based on jurisdictional grounds.

[30] In addition, it is clear from section 371 of the Act that a person must not make a general protections court application unless Fair Work Australia has issued a s.369 certificate or the general protections court application includes an application for an interim injunction. This means that, unless an interim injunction is being sought, a general protections court application must not be made unless the applicant first has a s.369 certificate from the Tribunal. To this end, the Act requires the Tribunal to hold a conference of the parties (s.368). The next two sections then require, firstly, that the Tribunal issues a certificate if it is satisfied that all reasonable attempts have been or are likely to be unsuccessful in resolving the dispute (s.369). Secondly, the Tribunal must advise the parties if it considers that a general court application regarding the dispute, would not have a reasonable prospect of success (s.370).

[31] The exception to this is where a general protections claim is made under s.372 of the Act (other contraventions) - where there has been no dismissal. The agreement of both parties to participate in conference is a pre-condition for the conducting of a conference by the Tribunal (s.374(1)(b)). If the employer does not agree to participate in a conference, the applicant may make a general protections application directly in the court without a conference being held by the Tribunal. No certificate is required from the Tribunal prior to making this type of general protections court application. However, the Tribunal is required to advise the parties if it considers that a general protections court application would not have a reasonable prospect of success (s.375). Therefore, an applicant may make a general protections court application (where dismissal is not involved) in the absence of a conference in Fair Work Australia or a certificate issued by it.

[32] Secondly, Division 8 of Part 3-1 (General Protections) of the Act only provides for Fair Work Australia, in addition to conducting a conference, to allow a further period for the making of an application (s.366(2)). This can be contrasted with the unfair dismissal provisions, found in Part 3-2 of the Act. This Part includes, apart from allowing a further period for the making of an application, the Tribunal deciding whether it was a genuine redundancy (s.396(d)), whether the person was protected from unfair dismissal (s.396(b)) and whether the dismissal was consistent with the Small Business Fair Dismissal Code (s.396(c)). These are all jurisdictional questions and Fair Work Australia must decide them before considering the merits of an unfair dismissal application (s.369). The scheme of the Act, therefore, would seem to require the Tribunal to determine a range of jurisdictional questions before determining the merits in regard to unfair dismissal applications. However, as set out above, there is no corresponding requirement in the Act for general protections claims.

[33] Further, in the Explanatory Memorandum to the Fair Work Bill 2008, the compliance framework for general protections disputes is set out. At paragraph 1475, it states that the dispute will be dealt with at first instance in a conference conducted by Fair Work Australia, and that:

"If the dispute remains unsettled after the conclusion of the conference, the dismissed employee can proceed to court."

[34] In addition, as indicated above, the Tribunal must advise the parties if it considers that a general protections court application has no reasonable prospect of success (s.370). However, with respect to unfair dismissal claims, the Tribunal has the discretion to dismiss an application if it has no reasonable prospect of success (s.587(1)). The Tribunal is expressly forbidden from exercising the power to dismiss, or to dismiss an application on the ground it is frivolous or vexatious, with respect to a general protections dispute application - s.587(2).

[35] For all of these reasons, it appears that the provisions of the Act, in terms of the functions of the Tribunal regarding general protections disputes under s.365, simply require the Tribunal to conduct a conference to deal with the dispute (s.368), to issue a certificate if the dispute is unresolved (s.369) and provide advice on a general protections court application if it considers that a court application would not have a reasonable prospect of success (s.370). This may be contrasted with the powers given to the Tribunal regarding unfair dismissal claims (Part 3-2 of the Act). Part 3-2 requires the Tribunal to, in addition to conducting a conference (s.398), determine a number of jurisdictional issues prior to determining the merits of an application.

[36] Therefore, as the general protections dispute notified by Ms Hansen was not resolved, during the conference on 14 December 2010, as required, a Certificate pursuant to s.369 of the Act will be issued."

[51] I agree with Commissioner Cribb's reasoning with regard to the matter that was before her.

[52] Applying this reasoning to this matter, the functions of Fair Work Australia with regard to a general protections dispute under section 372 are limited to conducting a conference to deal with the dispute under section 374, but only if the parties to the dispute agree to participate, and if Fair Work Australia considers that a general protections court application in relation to that dispute would not have a reasonable prospect of success advising both parties accordingly. There is no requirement within the legislation for Fair Work Australia to determine jurisdictional questions with respect to section 372 applications.

[53] This limited role for Fair Work Australia has been similarly endorsed with respect to section 773 applications by a Full Bench of Fair Work Australia in Hetherington-Gregory v Harrington Village Motel [ [2012] FWAFB 2104].

"[8] The function of a Member of Fair Work Australia in conducting a s.776 conference is to facilitate a resolution of the claim reflected in the application through an agreement of the parties. A Fair Work Australia Member, in conducting a s.776 conference, is not empowered to determine the application or otherwise impose an outcome on the parties.

[9] The statutory requirements upon a Member in relation to a s.776 conference are:

• If satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, the Fair Work Australia Member must issue a certificate to that effect (s.777); and

• If the Member considers, taking into account all the materials before it, that an unlawful termination court application in relation to the dispute would not have a reasonable prospect of success, it must advise the parties accordingly (s.778).

[10] A s.776 conference does not involve the hearing of evidence or the undertaking of a hearing involving an assessment of the full evidentiary case which would arise in a hearing in the Federal Magistrates Court or the Federal Court of Australia. It is a conciliation process based on the (often limited) factual material raised by the parties." Underlining added.

[54] As the Full Bench reinforced further at paragraph [15] of that decision the power to determine an application in relation to a termination of employment on alleged unlawful grounds falls exclusively to the Federal Magistrates Court or the Federal Court of Australia under section 539 of the Act, in relation to section 772(1).

[55] In my view the same principle applies in this case. Fair Work Australia is not empowered to determine the issues raised in the Strikeout Application and so potentially determine the original Application with finality. The Respondents' objection that whilst the Application was made under section 372 the Applicant was dismissed and so the Application must be made under section 365 and is therefore out of time and should be 'struck out' is not a matter Fair Work Australia is empowered to decide.

[56] Under section 539 such matters are for determination by either the Federal Magistrates Court or the Federal Court of Australia.

[57] Accordingly I dismiss the Strikeout Application made by the Respondents.

[58] A conference under section 374 will be listed if the Respondents' agree to participate.

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