Fair Work Act 2009_

s.773 - Application to deal with an unlawful termination dispute

Special Broadcasting Services Corporation T/A SBS Corporation

Unlawful termination dispute - application made out of time - objection raised as to jurisdiction - operation of s. 723 - earlier general protections application made in time - certificate issued - operation of s. 351 (2) extinguishing general protection - representative error - extension of time granted - certificate issued.

[1] This matter involves an application made under s. 773 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with an unlawful termination dispute. The application was made by Scott McIntyre (the applicant) and the respondent employer is Special Broadcasting Services Corporation T/A SBS Corporation (the employer or SBS).

[2] This Decision is made in respect of what may be described as two interlocutory issues. The first issue involves an objection taken by the respondent employer, SBS, who has sought to have the application dismissed upon the assertion that the application is without jurisdiction. The second issue concerns the fact that the application was made beyond the time prescribed by s. 774 of the Act, and an extension of time would have to be granted so as to permit the matter to proceed.

[3] The basis for the alleged absence of jurisdiction involved the operation of s. 723 of the Act in circumstances where the applicant made an earlier general protections application under s. 365 of the Act. The earlier s. 365 application was made within time and the application in this matter was made 23 days beyond the time specified by subsection 774 (1) of the Act. SBS has opposed any extension of time as provided for in subsection 774 (2) of the Act on the basis that exceptional circumstances should not be established.

[4] The application was filed on 9 June 2015, and SBS filed a response on 18 June 2015. The matter was the subject of unsuccessful conciliation held on 13 July 2015. The Commission issued Directions for an anticipated Arbitration Hearing in respect to the jurisdictional objection taken by SBS and the question of the extension of time. This Hearing was scheduled for 11 September and subsequently altered to 22 September 2015.

[5] At the Hearing held on 22 September 2015, the Commission granted permission pursuant to s. 596 of the Act, for the Parties to be represented by lawyers or paid agents. Mr N Hutley, Senior Counsel, together with Mr D Pritchard, Senior Counsel, and Ms R Francois, Counsel, instructed by Maurice Blackburn solicitors, appeared for the applicant. Mr A Moses, Senior Counsel together with Mr Y Shariff, Counsel, instructed by Holding Redlich lawyers, appeared for SBS. During the Hearing evidence was introduced by way of two statements of Ms Alessandra Peldova-McClelland, solicitor, and another statement made by Mr Michael Lee, Senior Counsel, both of whom were legal representatives of the applicant.

[6] There is a broadly uncontested but somewhat unusual factual matrix upon which the Commission has been required to determine the jurisdictional objection made to the application by SBS and the issue of any extension of time.

[7] On 26 April this year, the applicant was dismissed after approximately 6 � years employment as a reporter with SBS. The circumstances surrounding the dismissal of the applicant were connected with some matters of public controversy involving social media comments that the applicant made on Anzac Day regarding, inter alia, Australian Defence Force personnel engaged in various theatres of war.

[8] On 15 May 2015, lawyers acting on behalf of the applicant made a general protections application under s. 365 of the Act. The s. 365 application was advanced upon the proposition that the dismissal of the applicant was contrary to a general protection established by s. 351 of the Act, which relevantly proscribes adverse action against a person because of, inter alia, that person's political opinion. In short, the s. 365 application asserted that the dismissal of the applicant breached the general protection established by s. 351 of the Act because the applicant had been dismissed because of his political opinion.

[9] On 3 June 2015, the applicant's s. 365 application was the subject of a conciliation conference conducted by the Commission as currently constituted. The conciliation conference was unsuccessful in resolving the matter and on the following day, 4 June 2015, the Commission issued a certificate under s. 368 of the Act as a prerequisite to the applicant making a general protections court application.

[10] In preparation for making a general protections court application, the applicant's solicitors more carefully examined the response document which had been filed by the lawyers acting for SBS. In paragraph 10 of that response document, the lawyers for SBS had indicated that they would rely upon subsection 351 (2) of the Act, in that the adverse action which was complained of by the applicant, (allegedly because of political opinion), was not unlawful under relevant New South Wales legislation. Specifically, the lawyers for SBS identified that political opinion was not a matter that was specifically unlawful under the Anti-Discrimination Act 1977 (NSW) and the Australian Human Rights Commission Act 1986 (Cth).

[11] The operation of subsection 351 (2) of the Act had not been contemplated by the lawyers representing the applicant, and they first turned their attention to the implications of the operation of subsection 351 (2) after the Commission had issued a certificate under s. 368 of the Act. It fairly quickly became apparent to the applicant's lawyers that any general protections court application which asserted a breach under subsection 351 (1) of the Act on the grounds of political opinion, was doomed to fail by virtue of the operation of subsection 351 (2) (a) because, in New South Wales, it is not unlawful under the anti-discrimination law in force in that State, to discriminate on the basis of political opinion.

[12] Faced with the realisation that the s. 365 application was doomed to fail, the solicitors for the applicant consulted, inter alia, the Fair Work Commission Benchbook, and decided that an unlawful termination application under s. 773 of the Act represented an appropriate alternative course of action. Consequently, the s. 773 application was made and the applicant has unequivocally abandoned any general protections court application.

[13] Following the filing of the s. 773 application, the applicant's solicitors wrote to the solicitors for SBS seeking to have agreement reached to provide for the applicant to expedite the Commission issuing a certificate under subsection 776 (3) and thereby enable the applicant to be in a position to make an unlawful termination court application. The Parties have been unable to agree on such an expedited process and SBS has raised the jurisdictional objection reliant upon s. 723 of the Act, together with its opposition to the extension of time for the late s. 773 application.

[14] In abbreviated summary, SBS has asserted that the operation of s. 723 of the Act when properly construed, establishes that the applicant cannot make and is statutorily barred from making, the s. 773 application. Section 723 of the Act is in the following terms:

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."

[15] SBS has submitted that the applicant has an entitlement to make a general protections court application because he was a national system employee and that that entitlement is confirmed by the certificate issued by the Commission on 4 June 2015, under s. 368 (3) of the Act. Further, SBS has contended that the operation of subsection 351 (2) of the Act does not remove the applicant's entitlement to make a general protections court application.

[16] The submissions made by SBS stressed that the position of the applicant was to be contrasted with a person who had no entitlement to make a general protections application. In this regard SBS submitted that subsection 351 (2) of the Act operates as a defence or an exemption to subsection 351 (1) of the Act. However, according to the submissions made on behalf of SBS, subsection 351 (2) does not operate to deprive a person of standing to make an application in respect of subsection 351 (1) of the Act and that, in fact, that is what the applicant had done.

[17] Consequently, SBS submitted that the applicant should be properly considered to be a person who was entitled to make a general protections court application and s. 723 of the Act provides a statutory bar for the applicant to be able to make an unlawful termination application. Therefore, SBS submitted that the Commission does not have jurisdiction to further consider the s. 773 application made by the applicant and it should be dismissed accordingly.

[18] The submissions made on behalf of the applicant rejected the jurisdictional objection that had been advanced on behalf of SBS. In summary, the applicant submitted that a proper interpretation of s. 723 of the Act involved consideration for providing a purposive construction in circumstances where the legislation was beneficial and remedial and should be given a broad or liberal interpretation rather than an interpretation that was literal or technical.

[19] The applicant submitted that the Commission should give close attention to the term "conduct" as it appeared in s. 723 of the Act. It was submitted that the conduct that the applicant complained of had specifically been "carved out" by subsection 351 (2) (a) of the Act and thus the applicant was deprived of capacity or entitlement to make a general protections court application in respect of that particular conduct. Therefore, according to the submissions made on behalf of the applicant, the applicant could make an unlawful termination application in relation to the conduct of SBS that he alleged to be wrong, because he was not entitled to make a general protections court application in relation to that conduct.

[20] The submissions made on behalf of the applicant further asserted that s. 723 of the Act did not apply to the applicant because an entitlement to take a general protections court application, as is referred to in subsection 368 (4) of the Act, is reliant upon s. 539 of the Act and the applicant was not a person affected by a contravention as specified in item 11 of s. 539.

[21] Additionally, the applicant asserted that he was not a person entitled to make a general protections court application because he did not satisfy the requirements of subsection 370 (a) (ii) of the Act, as he had not made a general protections court application within 14 days after the day that the certificate under s. 368 had been issued. In this regard, it was submitted that the word "is" as it appeared in s. 723 of the Act was relevant in so much as the entitlement to make a general protections court application, if it did exist for the applicant, was effectively lost after the expiration of the 14 day time limit established by subsection 370 (a) (ii) of the Act.

[22] In summary, the applicant submitted that the Commission had jurisdiction to deal with the s. 773 application as it was made in respect to conduct for which the applicant did not have had an entitlement to make a general protections court application.

[23] The issue of the requirement for the application to be granted an extension of time arises as a practical consequence in the event that the Commission rejects the jurisdictional objection raised by SBS regarding s. 723 of the Act. The submissions made by both Parties addressed the requirements of s. 774 of the Act, and in particular, the various factors that are set out in paragraphs (a) to (e) of subsection 774 (2) of the Act.

[24] In brief summary, the primary basis upon which SBS objected to any extension of time involved the assertion that the reason for the delay involving representative error had not been properly established, and further, that the alleged representative error did not provide an acceptable explanation for the entire period of the delay.

[25] The submissions made by the applicant in respect of the extension of time focused upon what was described as manifest representative error. The applicant submitted that the Commission should be satisfied that the particular circumstances of this case provided proper basis for the exercise of the discretion to extend time as there was a clear reason for the delay caused by representative error and as such, exceptional circumstances were properly established.

[26] I have carefully examined and considered the evidence and respective submissions of the Parties as the basis for this Decision.

[27] The circumstances surrounding this matter are unusual. The public controversy regarding the applicant's social media comments on Anzac Day and his subsequent dismissal have understandably introduced an elevated level of tension between the Parties in respect to the litigation involving challenge to that dismissal. Unfortunately, that litigation has now generated some unusual circumstances of its own making.

[28] It would seem to be unremarkable that the applicant might, particularly with the benefit of legal advice, challenge his dismissal by making a general protections application under s. 365 of the Act. Given the nature of the circumstances which surrounded the dismissal of the applicant, it is equally unremarkable that the general protection that the applicant would seek to rely upon would be that mentioned in s. 351 of the Act involving discrimination on the basis of political opinion.

[29] Unfortunately, but not unsurprisingly, those who advised the applicant were unaware that the anti-discrimination law in New South Wales does not make it unlawful to discriminate against a person on the basis of their political opinion. In passing, I note that discrimination on the basis of religion may also not be specifically established to be unlawful under the Anti-Discrimination Act 1977 (NSW) and apparently a similar position applies in South Australia.

[30] Consequently, the applicant, acting upon legal advice, sought to challenge his dismissal with an application that could not possibly succeed. Regrettably, that mistake was not comprehensively identified at the conciliation conference held on 4 June 2015. Following the conciliation conference, the Commission issued a certificate under s. 368 of the Act which was a necessary prerequisite to enable the applicant to make a general protections court application.

[31] However, with the benefit of a detailed examination of the entire position of the applicant, the operation of subsection 351 (2) of the Act now renders the s. 368 certificate as futile because any general protections court application could not possibly succeed. The applicant has logically made an unlawful termination application under s. 773 of the Act. The s. 773 application would represent the logical alternative means to overcome the mistake made with the general protections application taken under s. 365 the Act.

[32] In these circumstances, SBS seeks to invoke the operation of s. 723 of the Act which prohibits a person from making an unlawful termination application (s. 773), if that person is entitled to make a general protections court application, which is taken under ss. 370 and 539 of the Act.

[33] The operation of s. 723 of the Act should be considered in the context of a provision contained in Part 6-1 - Multiple Actions, which is a part of the Act that provides for rules relating to applications for remedies under the Act and which prevents certain applications being made where other remedies are available and also prevents multiple applications or complaints being made in relation to the same conduct. In my view, the intention of s. 723 of the Act is to avoid a person making both an unlawful termination application and a general protections court application in respect to the same issue.

[34] The rationale which underpins s. 723 of the Act and Part 6-1 generally, is that a person should be unable to take more than one proceeding in respect to a complaint. There may be different remedies available under different sections of the Act which could legitimately be pursued in respect of a particular complaint, but the rationale of Part 6-1 of the Act requires a person to elect only one particular process for pursuit of a particular remedy.

[35] In the present circumstances, the applicant mistakenly commenced proceedings under s. 365 of the Act and he has subsequently endeavoured to overcome that mistake with his application under s. 773 of the Act. Consequently, there is no attempt by the applicant to seek multiple actions or remedies in respect to the same conduct, his s. 365 application has failed, and in my view, had his particular circumstances being properly examined at the time, it would have been established that he was not a person who was entitled to make a general protections court application in relation to conduct which, in New South Wales, was caught by the provisions of subsection 351 (2) (a) of the Act.

[36] A consideration of the operation of subsection 351 (2) (a) of the Act is assisted by the following extract from the explanatory memorandum to the Fair Work Bill 2008:

"1429. The exception in paragraph 351(2)(a) ensures that action authorised by or under a State or Territory anti-discrimination law (defined in subclause 351(3)) is not adverse action under the subclause 351 (1)."

[37] Consequently, I believe that the operation of subsection 351 (2) (a) of the Act, in the circumstances of the applicant, had the effect of extinguishing the general protection established under subsection 351 (1) of the Act. Therefore, for the purposes of s. 723 of the Act, the applicant was not a person who was entitled to make a general protections court application in relation to the particular conduct that was the subject of his s. 365 application. Therefore, the s. 773 unlawful termination application made by the applicant is not jurisdictionally barred by the prohibition established under s. 723 of the Act.

[38] Further, I believe that the construction that I have adopted for the operation of s. 723 of the Act, in circumstances where subsection 351 (2) (a) of the Act operates to remove a general protection that would otherwise be established by subsection 351 (1) of the Act, is supported by the following extract from the explanatory memorandum to the Fair Work Bill 2008:

2702. This clause prevents a person from making an unlawful termination application under Division 2 of Part 6-4 if they are able to make an application under the general protection provisions in Part 3-1 in relation to the same termination of employment. This is because the general protections and unlawful termination provisions cover the same grounds of when a termination is for a prohibited reason. The unlawful termination provisions are only intended to be an extension of these protections to persons who are not covered by the general protections in relation to the termination. …" [Emphasis added].

[39] If however I am wrong in respect to my conclusions about the combined operation of subsections 351 (2) (a) and 351 (1) of the Act, and the extinguishment of the protection under subsection 351 (1) of the Act for the purposes of s. 723, then, in the alternative, I determine that the certificate I issued under s. 368 on 4 June 2015 was issued in error and is revoked accordingly. Consequently, without a valid s. 368 certificate the applicant is not a person entitled to make a general protections court application.

[40] The application is competent and the question of the required extension of time must be considered.

[41] I have considered the various factors contained in paragraphs (a) to (b) of subsection 774 (2) of the Act. In particular, I am satisfied that there is a valid reason for the delay in filing the application which relates to representative error. Further, I am satisfied that there is proper explanation for the entire period of the delay. In addition, the other factors contained in subsection 774 (2) of the Act have been taken into account and either support the granting of an extension of time or are neutral such that I am satisfied that there are exceptional circumstances.

[42] Consequently, I determine that the time for making the application is extended for a further period until 9 June 2015.

[43] In this instance the respondent employer, SBS, has made a challenge to an application for unlawful termination of employment which was taken under s. 773 of the Act. The applicant had made a previous general protections application under s. 365 of the Act. The challenge to the application made by SBS relies upon the purported operation of s. 723 of the Act.

[44] I have concluded that in the particular circumstances of this case, s. 723 of the Act does not operate as a jurisdictional bar to the application, as the applicant is not a person who is entitled to make a general protections court application in relation to the conduct that he complains of. Further, I have decided that exceptional circumstances exist such that the time for the making of the application should be extended and the application permitted to proceed accordingly.

[45] My conclusions have been broadly drawn from a purposive interpretation of the Act cognisant that it is beneficial legislation. In simple terms, I believe that the Act, and s. 723 in particular, should not be interpreted in a manner which would deprive an individual of access to a fair hearing or, as may be euphemistically described, a person's "day in court". In the circumstances of this case the applicant does not seek multiple proceedings or remedies but simply seeks to have his day in court.

[46] It is perhaps sadly ironic that many members of the Australian Defence Force lost their lives in the earnest pursuit of the protection of rights and freedoms such as the access to a fair hearing which the applicant is entitled to obtain.

[47] The jurisdictional objection raised by SBS is dismissed, the extension of time for the application to have been made is granted and a certificate shall be issued pursuant to subsection 776 (3) of the Act.

Mr N Hutley, Senior Counsel together with Mr D Pritchard, Senior Counsel and Ms R Francois, Counsel for the applicant.

Mr A Moses, Senior Counsel together with Mr Y Shariff, Counsel for the employer.

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