McGrory v Horizon One Recruitment Pty Ltd

CONSIDERATION 12 Relevant provisions of the Fair Work Act are as follows: Section 365 Application for the FWC to deal with a dismissal 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 the FWC for the FWC to deal with the dispute. … Section 368 Dealing with a dismissal dispute (other than by arbitration) (1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration). Note: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute. (2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3). … (3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then: (a) the FWC must issue a certificate to that effect; and (b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly. ... Section 370 Taking a dismissal dispute to court A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless: (a) both of the following apply: (i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute; … 13 Section 370(a)(ii) of the Fair Work Act was recently considered by Logan J in Kelly v Corporation of the Synod of the Diocese of Brisbane [2023] FCA 829. Section 370(a)(ii) requires that a general protections court application be made within 14 days after the day a certificate under s 368(3)(a) is issued by the Fair Work Commission. As the general protections application in Kelly v Diocese was not filed within the 14 day period, the question for Logan J to determine was whether an extension of time should be granted in line with the discretion given to the Court under s 370(a)(ii) of the Fair Work Act. Relevantly his Honour observed: 44. It seems to me that these statutory conditions are not mere limitations, but rather conditions of the kind to which Dixon J referred in the passage quoted from Parisienne Basket Shoes. They are conditions in respect of the Court's jurisdiction. They are conditions which govern whether a person is entitled to invoke the Court's jurisdiction. (emphasis added) 14 The passage of Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 referenced by His Honour reads (at 391): It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. 15 Plainly Logan J in Kelly v Diocese found that s 370(a) of the Fair Work Act contained conditions, the fulfilment of which is necessary before the jurisdiction of the Federal Court is invoked. An applicant for a general protections dispute is therefore unable to invoke the Court's jurisdiction unless: (1) a certificate is issued by the FWC under s 368(a) in relation to the dispute; and (2) a general protections court application is made within 14 days after the day the certificate is issued (unless otherwise extended by the Court). 16 In the present case Dr McGrory submitted that she intended the dispute in the Fair Work Commission to be referable to both respondents. I note that Dr McGrory is a litigant in person. Recently the Full Court observed in Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 79: 20 The appellant in this case is a litigant in person, and it is common for Courts to take a lenient view of the rules and the law in aid of such litigants: see for example Zaghloul v Woodside Energy Limited (No 9) [2019] FCA 1718 at [18], Blakeley v National Australia Bank [2018] FCA 796 at [51], BBT16 v Minister for Home Affairs [2018] FCA 1225 at [5]. 21 Nonetheless, as Colvin J went on to explain in Zaghloul at [18], the Court may be lenient in the standard of compliance which it exacts from a litigant in person, provided that leniency does not go so far as to confer an advantage on the person who acts on their own behalf: Nobarani v Mariconte [2018] HCA 36; (2001) 265 CLR 236 at [47], Platcher v Joseph [2004] FCAFC 68 at [104]‑[105]. 17 Litigation is dependent on clear claims, being brought clearly, against specific named respondents. The Fair Work Commissioner plainly interpreted the application in the Fair Work Commission as raising Dr McGrory's dispute only with Horizon One. This is not surprising, because, turning to the Form F8 - in particular paras 3.1 and 3.3 of that form, it is plain that Dr McGrory's application was framed in terms of Horizon One being her employer, with the second respondent being only a "host client" with whom she was placed by her employer. Irrespective of Dr McGrory's belief that there are duties of care owed her by both respondents, her claim in the Fair Work Commission did not identify the second respondent as her employer such as to constitute a dispute under the Fair Work Act. 18 Ms White gave evidence that the second respondent had no record of receiving any application lodged by Dr McGrory with the Fair Work Commission which related to an alleged contravention of Part 3-1 of the Fair Work Act, and that the second respondent took no part in the proceedings in the Fair Work Commission. This evidence is uncontested by any evidence of Dr McGrory. 19 In the circumstances I am satisfied that the provisions of ss 365, 368 and 370 of the Fair Work Act were not satisfied in respect of the second respondent, insofar as Dr McGrory alleged a "dispute" with the second respondent before the Fair Work Commission. There was no "dispute" in the Fair Work Commission between Dr McGrory and the second respondent such that Dr McGrory could now bring a complaint concerning the second respondent to this Court. 20 It follows that the Court lacks jurisdiction in respect of the claim by Dr McGrory against the second respondent, and that her proceeding against the second respondent be dismissed for want of jurisdiction.

COSTS 21 The second respondent has sought costs against Dr McGrory, pursuant to s 570 of the Fair Work Act. It submitted that: 33. Section 570 of the Fair Work Act limits the circumstances in which an unsuccessful applicant in Fair Work proceedings is required to pay costs. 34. Nonetheless, the Second Respondent submits that, if the Court dismisses the proceeding against the Second Respondent for want of jurisdiction, this is a case where it is appropriate to order that the Applicant pay the Second Respondent's costs pursuant to s 570(2) of the Fair Work Act. 35. Section 570(2) of the Fair Work Act provides: Costs only if proceedings instituted vexatiously etc. … (2) The party may be ordered to pay the costs only if: (a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or (b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or (c) the court is satisfied of both of the following: (i) the party unreasonably refused to participate in a matter before the FWC; (ii) the matter arose from the same facts as the proceedings. 36. If the Court accepts the Second Respondent's submission that the proceeding against it ought to be dismissed for want of jurisdiction, then the Applicant ought to pay the Second Respondent's costs of the proceeding. This is because: (a) the Applicant's naming of the Second Respondent as a respondent (despite having not brought an application in the FWC concerning the Second Respondent) was an "unreasonable act or omission" given s 370 of the Fair Work Act. It caused the Second Respondent to incur the costs of responding to this proceeding which should not have involved it, given the non-compliance of s 370; (b) in the absence of compliance by the Applicant with s 370 of the Fair Work Act in respect of the Second Respondent, the Applicant instituted the proceedings against the Second Respondent without reasonable cause. (footnotes omitted) 22 Dr McGrory, submitted, in summary: She did not have the funds to be able to pay costs, especially given she could not afford to pay a lawyer to represent her. This is a no costs jurisdiction. There is nothing vexatious about these proceedings. There is reasonable cause for the Applicant to have questioned what occurred during her employment as a contractor with the second respondent. She has undertaken no unreasonable acts or omissions that have caused the other party to incur the costs. She has attempted in good faith to have the Fair Work Commission mediate the matter before bringing it before the Court. The only requirement under s 370 of the Fair Work Act was that she obtained a certificate from the Fair Work Commission in relation to the dispute and that she filed her application with the Federal Court within the stipulated time. The certificate provided was in relation to the dispute as a whole, and the application was filed within the relevant time. As such she had complied with s 370 of the Fair Work Act. 23 As I observed in Parker v HG Innovations Pty Ltd (No 2) [2020] FCA 906: [46] Section 570 of the Fair Work Act is clear in its limitation of cases where an unsuccessful applicant in Fair Work proceedings is required to pay costs: see for example the following observations of Pagone J in Shamir v Commonwealth [2015] FCA 1463: 3. …In Baker v Patrick Projects Pty Ltd (No 2) [2014] FCAFC 166 the Full Court at [9] approved the following passage from Construction, Forestry, Mining and Energy Union v Corinthian Industries (Australia) Pty Ltd (No 2) [2014] FCA 351 at [8] summarising the relevant authorities concerning the exercise of the Court's discretion under s 570(2)(a): To exercise the discretion conferred by [s 570(2)(a) of the FW Act] the Court must be satisfied that the claims were, relevantly, instituted without reasonable cause. That is not established merely because a party fails in the claims: R v Moore; ex parte Federated Miscellaneous Workers Union of Australia [1978] HCA 51; (1978) 140 CLR 470 , 473. The relevant provisions reflect 'a policy of protecting a party instituting proceedings from liability for costs' and costs will rarely be awarded unless justified by exceptional circumstances: see Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275 at [60] . In Kangan Batman Institute it was said by the Full Court at [60] that 'a proceeding will be instituted without reasonable cause if it has no real prospects of success, or was doomed to failure'. In Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 Wilcox J indicated at 264 that one way of testing whether a proceeding was instituted 'without reasonable cause' was to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no 'substantial prospect of success'. His Honour went on to say that a proceeding lacks a reasonable cause where it is clear that it must fail on the applicant's own version of the facts. [See also Fair Work Ombudsman v Devine Marine Group Pty Ltd [2015] FCA 370 at [43] ; and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) (2015) 230 FCR 337at 342-3, [13]]. (emphasis added) 24 I am not satisfied that an award of costs against Dr McGrory in favour of the second respondent is justified in the present circumstances. 25 I note again that Dr McGrory is a litigant in person. It is clear from Dr McGrory's submissions (including in Court this morning) that she understood the word "dispute" for the purposes of s 370 of the Fair Work Act to mean the entirety of her concerns with her placement by the first respondent in the workplace of the second respondent. I accept the submission of the second respondent that Dr McGrory was wrong in so believing. However the issue of what the "dispute" constituted in this case, in particular whether there had in fact been a dispute with the second respondent in the Fair Work Commission, was a proper and reasonable question to put before the Court today. As such, costs ought not be awarded pursuant to s 570 of the Fair Work Act. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier.

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