Maher v Mulgowie Fresh Pty Ltd

BACKGROUND 2 Mr Maher was employed as a forklift driver with Mulgowie on 27 May 2009. His employment was terminated on 19 October 2009. The reason given by Mulgowie for the termination of Mr Maher's employment was Mr Maher's unsuitability for that type of work - specifically, that Mr Maher had physical lifting limitations due to a previous injury which made him unable to fulfil his duties safely and without risk of harm. 3 It appears that Mr Maher's back injury occurred approximately fifteen years ago, and that he had indicated this on his employment application. 4 On 12 November 2009 Mr Maher filed an application with Fair Work Australia pursuant to s 773 of the Act claiming unlawful termination of his employment. Mr Maher claims that he was not legally represented at the hearing before Fair Work Australia but was accompanied by a friend, who was a former solicitor, as a support person. A conciliation conference held by Fair Work Australia on 27 January 2010 did not resolve the issue, and on 1 February 2010 Fair Work Australia issued a certificate pursuant to s 777 of the Act stating that all reasonable attempts to resolve the dispute had been, or were likely to be, unsuccessful. 5 Before Fair Work Australia, and in the substantive proceedings in the Court, Mr Maher claims that the termination of his employment was due to his physical disability, in contravention of s 772 of the Act. He seeks reinstatement, compensation and the imposition of a pecuniary penalty on Mulgowie. 6 Following the hearing before Fair Work Australia, Mr Maher engaged solicitors to advise him in the substantive proceedings. On 2 March 2010 his solicitor, Mr Tayler, wrote to the solicitors for the respondents in the following terms: Enclosed by way of service find: 1. Application Regarding Unlawful Termination and Claim Alleging Unlawful Termination. Our client was self represented in Fair Work Australia and commenced his application there under s773 of the Fair Work Act 2009 ("FWA"). Consequently he was issued a certificate under s777 and the only application he could bring in Court was the application we have filed. It seems to us that as our client was a National System Employee at the time of his dismissal s723 required that his application should have been started under s.365 alleging a breach of s351. We put you on notice that it is our intention at the appropriate time to seek an order that the claim be allowed to proceed as if the application to FWAV (sic) was brought under s365. Could you please advise your client's attitude to this proposal. If they do not consent to this proposal the matter may need to be separately listed to resolve that issue. 7 Mulgowie's attitude to the applicant's proposal was indicated by a notice of motion filed 16 March 2010 in which Mulgowie sought the following orders: 1. That the application dated 15 February 2010, made pursuant to s 773 of the Fair Work Act 2009 ("the Act") be dismissed because the order cannot be made pursuant to s 723 of the Act. 2. Any other orders that the court deems appropriate. 3. For costs.

RELEVANT LEGISLATION 8 Section 773 of the Act provides, in summary, that if an employer has terminated an employee's employment and the employee alleges that the employment was terminated in contravention of s 772(1), the employee may apply to Fair Work Australia for Fair Work Australia to deal with the dispute. 9 So far as relevant, s 772(1) provides: (1) An employer must not terminate an employee's employment for one or more of the following reasons, or for reasons including one or more of the following reasons: (f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin; 10 However, critically, s 723 provides as follows: Unlawful termination applications A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct. 11 It is common ground in this matter that at all relevant times Mulgowie was a national systems employer within the meaning of s 13 of the Act and that Mr Maher was a national systems employee within the meaning of s 14 of the Act. Accordingly Mr Maher was entitled to make an application to Fair Work Australia under the general protection provisions of Pt 3-1 of the Act, and in particular pursuant to s 365 which provides: Application for FWA to deal with a dispute If: (a) a person has been dismissed; and (b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part; the person, or the industrial association, may apply to FWA for FWA to deal with the dispute. 12 Because of his status as a national systems employee, the legislative provision relevant to Mr Maher's complaint was actually s 351 which provides: An employer must not take adverse action against a person who is an employee, a prospective employee, of the employer because of the person's race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction, or social origin. (emphasis added) 13 For the purposes of s 351, "adverse action" includes dismissal of an employee: s 342. 14 In my view there is no doubt that Mr Maher should have relied on Pt 3-1 of the Act in respect of his claim against Mulgowie. Part 3-1 of the Act sets out a range of workplace protections in respect of national systems employers and employees contemplated by the Act, and is a key part of the Act in respect of the prevention of discrimination and other unfair treatment of such employees (cf para 1333 and para 1334 of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth)). In contrast, it is clear from s 769 that the provisions of Pt 6-4 of the Act, which include s 772 and s 773, give effect, or further effect, to certain international agreements relating to discrimination and termination of employment. The distinction between the application of Pt 3-1 and Pt 6-4 is explained by para 1342 of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) as follows: Part 3-1 does not rely on the external affairs power in the Constitution in the same way as the existing unlawful termination protections (which apply to all employees in Australia). To maintain existing protections, Division 2 of Part 6-4 provides for unlawful termination protections for employees who do not have a remedy under this Part. This ensures that every employee in Australia has a remedy for unlawful termination. 15 Accordingly, an individual employee must look to s 723 of the Act to identify the relevant Part of the Act which provides that employee with protection. National systems employees, such as Mr Maher, are required to commence proceedings under Pt 3-1.

SUMMARY DISMISSAL 16 Mulgowie relies on s 31A of the Federal Court of Australia Act 1976 (Cth) and O 20 r 5 of the Federal Court Rules as the sources of power for the Court to dismiss Mr Maher's claim. In respect of s 31A, Mulgowie relies particularly on subs (1) and subs (3) which provide as follows: (1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is prosecuting the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding. … (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. 17 Put simply, the case of Mulgowie for summary dismissal is that: · it is clear that Mr Maher's application was commenced pursuant to the wrong legislative provision. Because of this, there is no reasonable prospect of him successfully prosecuting his claim; · in respect of Mr Maher's contention that the Court make an order that the application be allowed to proceed as if it were brought under s 365 of the Act - there appears to be no common law rule, nor any statutory authority for this approach; · there is no issue of fact involved and the points of law raised are clear and unarguable. 18 On behalf of Mr Maher, Mr Tayler submitted that s 723 of the Act did not result in Mr Maher's application being hopeless or bound to fail. Rather, s 723 allows an employee to make an election as to whether to make an unlawful termination application pursuant to Pt 6-4, or a general protection application pursuant to Pt 3-1. Accordingly, once an employee commences an application pursuant to Pt 6-4, the employee is then not entitled to bring an application pursuant to Pt 3-1 because he or she has chosen not to go down that route. 19 While ingenious, I am not persuaded that the interpretation of s 723 urged by Mr Tayler is the correct one. In my view, the solicitors for Mr Maher in their letter of 2 March 2010 properly acknowledged that the application had been improperly commenced. Section 723 is clear and unambiguous on its terms. Mr Maher, being a national systems employee entitled to the benefit of the general protection provisions in Pt 3-1, was required to commence his application pursuant to that Part. He was not permitted to commence an action pursuant to s 772. 20 However while Mr Maher's application in its current form is, indeed, hopeless and bound to fail, that is not the end of the matter. At the hearing before me Mr Maher sought an order that he have leave pursuant to O 13 r 2 of the Federal Court Rules to amend the form 5 application filed on 15 February 2010 to allege a contravention of s 351 of the Act. 21 Mr Maher relies on O 13 r 2(7)(a) of the Federal Court Rules as the basis for his amendment application. However O 13 r 2 is relevant in other respects to this case. In particular, O 13 r 2 provides so far as relevant: (1) Subject to the following provisions of this rule, the Court may, at any stage of any proceeding, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit. (2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings. … (7) An amendment may be made even if the effect of the amendment is to add a new claim for relief or foundation in law for a claim for relief (whether by way of substitution for an existing claim for relief or foundation in law or not) if the new claim for relief or foundation in law: (a) arises out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the party applying for leave to make the amendment; or … 22 In this case I see no reason why the Court should not grant leave to Mr Maher to amend his substantive application on the terms he has sought. I form this view because: · The application to amend the application comes very early in this litigation. · There are no case management issues which might persuade the Court to refuse the application for leave to amend, as contemplated in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175. · I note Ms Brace's submissions concerning the absence of common law or statutory authority for an order to amend the substantive application as sought by Mr Maher. However I consider that O 13 r 2(7) of the Federal Court Rules confers on this Court power of sufficient breadth to do so. · No prejudice has been demonstrated by Mulgowie should the Court grant Mr Maher leave to amend his substantive application. So, for example: o Mulgowie has not identified any costs incurred by it which would be thrown away should leave be granted to Mr Maher to amend his application; o it appears that no new factual or legal issues would be raised by the amendment to the substantive application, other than the substitution of the statutory basis of the application; o Mulgowie has been on notice of Mr Maher's intentions with respect to seeking leave to amend the substantive application since Mr Tayler's letter of 2 March 2010. · I note Mr Maher's claim that he was not legally represented before Fair Work Australia, and fell into error in respect of the legislative basis of his application. I note further that this error was not drawn to his attention by Fair Work Australia, which issued a certificate pursuant to s 777. · It is common ground that Mr Maher is out of time to commence a fresh application before Fair Work Australia. He would be significantly prejudiced should the Court refuse him leave to amend his existing substantive application. · I note that the objectives of the Act include the provision of workplace relations laws that are fair to working Australians (s 3(a)) and which enable fairness and representation at work and the prevention of discrimination (s 3(e)). In my view, and in the apparent absence of prejudice to Mulgowie, it would be inconsistent with the Acts' objectives of fairness in the workplace to refuse an employee an opportunity to pursue a grievance in Court simply because he made a legal error in formulating his original complaint.

CONCLUSION 23 It follows that Mulgowie's notice of motion for summary dismissal of Mr Maher's application be itself dismissed, and that Mr Maher be granted leave to amend his form 5 application to allege a contravention of s 351 of the Act. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.