s.365 - General protections

Tewantin Noosa RSL & Citizens Memorial Club, Kevin Graham

Application for procedural decision under s.589(1) of the Fair Work Act - application for a stay of proceedings - parallel proceedings in Supreme Court of Queensland - stay denied - application dismissed - substantive application to proceed

• [1] Mr Michael Sue See (the Applicant) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission) on 4 December 2024. The Applicant claims that adverse action was taken against him by Tewantin Noosa RSL & Citizens Memorial Club (the First Respondent) and Mr Kevin Graham (the Second Respondent) under s.340 of the Fair Work Act 2009 (Cth) (the Act).

• [2] On 14 February 2025, the Applicant, through his lawyers, applied for a stay of proceedings in the Commission pending determination of proceedings in the Supreme Court of Queensland. The Supreme Court matter involves a breach of contract claim with the same Applicant and the First Respondent.

• [3] Under s.589(1) of the Act, the Commission is empowered to make decisions as to how, when and where a matter is to be dealt with.

• [4] The Applicant is seeking the following order:

1. That proceeding numbered C2024/8776 be stayed pending determination of Supreme Court of Queensland proceedings numbered 16640 of 2024; and

1. That the parties be at liberty to apply to the Commission on the giving of two (2) days written notice to the other party.

• [5] The Applicant lodged his general protections claim on 4 December 2024. Although his Form F8 notes that he is legally represented, the claim was lodged by the Applicant without his lawyer's involvement.

• [6] On 16 December 2024, a Form F8A was lodged on behalf of the First and Second Respondent. The response includes the objection that the Applicant was not dismissed, and is currently still employed by the First Respondent.

• [7] Briefly, the Respondents' contention is that while there was a decision to terminate the Applicant made by the board, that decision was not validly made. The First Respondent is an incorporated association whose members are mostly volunteers. The Respondents contend that the decision was made without authorisation including because, amongst other things, because there was not a quorum present.[1]

• [8] The Respondents say that the decision to terminate the Applicant was rescinded in a subsequent board meeting on 8 October 2024.

• [9] On 23 December 2024, the Applicant filed a statement of claim in the Supreme Court of Queensland. The claim made by the Applicant is, in substance, that his fixed term employment contract was breached by the First Respondent. The Applicant claims that he was terminated in breach of the contract, that his salary and entitlements should be paid to him for the remainder of the term.

• [10] The general protections matter was programmed for hearing on the jurisdictional objection of whether there had been a dismissal. The Respondents, who raised the jurisdictional objection of no dismissal, were directed to provide submissions first by 29 January 2025. The Respondents requested an extension for filing due to the Australia Day public holiday. This was granted, and an extension of the same length was granted to the Applicant. The Respondent filed their submissions on the new due date of the 5 February 2025.

• [11] The Applicant's submissions in relation to the jurisdictional objection were due on 12 February 2025 and no submissions or other communications from the Applicant's representatives were received on that day.

• [12] On 13 February 2025, my Chambers emailed the Applicant to inform them that they had not filed submissions by the due date. An extension was granted until the end of the week, 14 February 2025, and the Applicant was informed that failure to comply would result in a non-compliance hearing.

• [13] On 13 February 2025, the Applicant's representative replied informing my Chambers that they were in the process of preparing an application for a stay of proceedings in the Commission. They requested an extension, and for the hearing date for the jurisdictional objection to be vacated to deal with the stay application instead. They noted that the Respondents oppose the request for the stay.

• [14] On 14 February 2025, the Applicant filed the stay application in the form of a Form F1 request for orders under s.589. The Applicant again requested an extension for filing of their submissions on the jurisdictional objection. I granted an extension until 20 February 2025 but noted my disappointment that the Applicant waited until after their submissions were due to inform Chambers that they would be making a stay application.

• [15] In Bowker v DP World Melbourne Limited,[2] Deputy President Gostencnik considered an application for a stay of proceedings pending determination of proceedings in the Federal Court. Deputy President Gostencnik applied the principles set out by Lockhart J in Sterling Pharmaceuticals Pty Limited v The Boots Company (Australia) Pty Limited ('Sterling'),[3] which are as follows:

• Which proceeding was commenced first.
• Whether the termination of one proceeding is likely to have a material effect on the other.
• The public interest.
• The undesirability of two courts competing to see which of them determines common facts first.
• Consideration of circumstances relating to witnesses.
• Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted.
• The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.
• How far advanced the proceedings are in each court.
• The law should strive against permitting multiplicity of proceedings in relation to similar issues

• • Generally balancing the advantages and disadvantages to each party[4]

• [16] In Jayasundera v Electricity Networks Corporation T/A Western Power,[5] the Full Bench of the Commission endorsed the approach of Deputy President Gostencnik in taking into account these considerations. The Full Bench added:

[45] It is not an insignificant matter to interfere with the 'ordinary course' by a stay of proceedings. As such, a stay application requires justification on proper grounds and an adjournment should not be lightly entertained.

• [17] In accordance with the approach endorsed by the Full Bench, I will have regard to the considerations in Sterling and the matters raised by the parties, noting also that s.577(1) of the Act outlines the manner in which the Commission must perform its functions:

(1) The FWC must perform its functions and exercise its powers in a manner that:

(b) is quick, informal and avoids unnecessary technicalities; and

(d) promotes harmonious and cooperative workplace relations.

• [18] Both parties acknowledge that the general protections application in the Commission was lodged first.

• [19] The Applicant argues that he was required to do this to preserve his rights. The Applicant has made references to the strict time period for dismissal-related applications.[6]

• [20] It is true that the limitation period for dismissal-related matters in the Commission is much shorter than for common law breach of contract claims. However, I am not convinced by the Applicant's argument that this should be a neutral consideration.

• [21] The claim in the Commission was lodged 19 days before the claim in the Supreme Court.

• [22] In the application for the stay, it is noted that the Applicant's solicitors held instructions to file a claim in the Supreme Court on 4 December 2024, 16 days into the 21-day period, but the Applicant lodged his Form F8 of his own accord at that time anyway.

• [23] On 25 September 2024, the First Respondent's board held a meeting to discuss the Applicant's contract.[7] On 3 October 2024, the First Respondent's board discussed terminating the Applicant's contract.[8] This is the meeting in which Applicant's contract was allegedly terminated. The Applicant could have chosen to contact solicitors after this meeting. Noting the Supreme Court claim is of paramount importance to the Applicant, he could have given instructions to prepare a statement of claim in October.

• [24] I find that the Applicant made a choice to file a claim in the Commission first, and that choice should weigh against granting a stay.

(b) Whether the termination of one proceeding is likely to have a material effect on the other

• [25] There is a common issue in both proceedings, being whether the Applicant was dismissed.

• [26] It is accepted that that if the Supreme Court made a determination on whether there was a termination of the employment contract, the Commission would follow that determination as the Supreme Court is a superior court of record.

• [27] The Applicant suggests that the Commission should leave the determination of whether the Applicant was dismissed to the Supreme Court, being court with a specialist function to determine rights and liabilities.[9] The Applicant points to the fact that the case involves legal complexity. The issues relating to whether the resolution at the board meeting was an effective termination involve application of the Associations Incorporations Act 1981(Qld).[10] I accept that the Supreme Court is invested with power to determine legal controversies.

• [28] The Applicant stated that if the Applicant succeeds in the Supreme Court, he will likely discontinue in the Commission. Similarly, if the Applicant was found by the Supreme Court to have not been dismissed, the application in the Commission would not proceed.[11]

• [29] I find that this consideration weighs in favour of granting the stay.

• [30] The parties both the public interest consideration of "fair, just and quick" resolutions of disputes.[12]

• [31] The Applicant also pointed to fair and just resolution of the proceedings in Supreme Court, fairness to witnesses, and avoiding unnecessary costs as public interest considerations that weigh in favour of granting a stay.

• [32] The Respondent points to efficiency in litigation as the main public interest factor for consideration. The Respondent notes the Commission is likely to reach a decision in the mater much faster than the Supreme Court and that a swift decision in the Fair Work Commission would narrow the issues in dispute in the Supreme Court.[13]

• [33] The Respondent referred to the majority judgment of the High Court in UBS AG v Tyne where their Honours remarked:

The timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the ... Integral to a "just resolution" is the minimisation of delay and expense.[14]

• [34] The Respondent also suggested that it would not be in the public interest to "reward perceived forum shopping, nor non-compliance with orders of the Commission".[15] The Applicant had much to say during the hearing regarding the allegation of forum shopping. Those arguments are dealt with further below.

• [35] In my view, the delay in waiting for the Supreme Court determination and the need for a timely resolution of proceedings is a powerful consideration weighing in favour of denying the stay.

(d) The undesirability of two courts competing to see which of them determines common facts first.

• [36] The parties have agreed that there is a common substratum of facts in both claims, being the matters related to the board meeting where the First Respondent purportedly terminated the Applicant.

• [37] This consideration weighs in favour of granting a stay.

(e) Consideration of circumstances relating to witnesses.

• [38] The Applicant noted that it would be undesirable for witnesses to be cross-examined on the same points twice. This is because it is a difficult process for the witnesses to go through, and they may have to do so twice.[16] Further, there may be different credit findings made against witnesses in different proceedings.[17]

• [39] By contrast, the First Respondent notes that there are logistical problems with its witnesses. The First Respondent's board is made up of volunteers.[18] The individuals involved in the board meetings in question are no longer members of the board. The Respondents note if the Commission proceedings were delayed, it would become more difficult for the evidence of those witnesses to be obtained "through the natural fading of memory with time and through a lack of ongoing connection to the First Respondent."[19] Further, individuals who are no longer connected to the First Respondent would be inconvenienced by having to give evidence in proceeding that they have no personal interest in.[20]

• [40] The First Respondent has several very relevant concerns regarding potential prejudice to its witnesses that would be caused by delay. I find that these concerns weigh against ordering a stay of proceedings.

(f) Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted.

• [41] The Applicant suggested that the work done in preparation for the jurisdictional objection can be re-used, to an extent, for the Supreme Court proceedings.

• [42] The Respondents have rejected this argument, noting that their submissions and witness statements were directed to address the Commission's Directions. My Directions noted that the Respondents should address whether the Applicant was dismissed, within the meaning of s.386 of the Act.

• [43] I find the Applicant's argument that the work can be re-used not particularly convincing. Although the statements of witnesses are likely to be similar in both proceedings, the Directions of the Commission will necessarily be different to those of the Supreme Court, as the Commission deals with matters under the Fair Work Act, whereas the Supreme Court will, in this case, be concerned with common law breach of contract.

• [44] I find that if the stay is granted, the Respondent's work in preparing for the jurisdictional objection is likely to be wasted. By contrast, the Applicant's work has not yet been wasted as they have not filed their submissions.

• [45] This consideration weighs against granting a stay.

(g) The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.

• [46] The Applicant points out that less time and effort will be wasted if the proceedings in the Commission are stayed and the Supreme Court proceedings are determined, as the Commission proceedings may fall away following the Supreme Court's decision.[21]

• [47] This is true, but I must consider whether it is in the public interest to bring simultaneous actions in two jurisdictions involving substantially the same issues. I note both parties have instructed solicitors and barristers for the proceedings in the Commission and the proceedings in the Supreme Court. From the Commission's perspective as a low-cost jurisdiction, it is not desirable for parties to incur costs in having barristers settle submissions in two jurisdictions. I note that the Respondents have expended substantial time and effort in both preparing their Defence in the Supreme Court, and their submissions and witness statements in relation to the jurisdictional objection.

• [48] I find that this wasting effort should not be discouraged, and this consideration weighs against granting a stay.

(h) How far advanced the proceedings are in each court.

• [49] The Applicant suggested that the proceedings in the Commission are "in their infancy".[22] I am not sure how the Applicant reached that conclusion, given at the time of the hearing on the stay application, the jurisdictional hearing was listed for the following week.

• [50] In my view, the proceedings are only in their infancy because the Applicant has twice failed to file their submissions on the jurisdictional objection by the due date. The only thing preventing a hearing on the jurisdictional objection is the Applicant's requests for extensions as well as this stay application.

• [51] The Applicant seems determined to provide no elaboration on their argument in relation to the jurisdictional objection until a stay is granted.

• [52] In contrast, the Respondents have filed all their submissions and witness statements in relation to the jurisdictional objection. Subject to being able to view the Applicant's submissions, the Respondents are prepared for the jurisdictional hearing.

• [53] The proceedings in the Supreme Court are at an early stage. So far, only a statement of claim and defence have been filed. Pleadings have not been closed.[23] It may be months before the Supreme Court trial commences, although no firm timetable has been set.

• [54] This consideration weighs against granting a stay.

(i) The law should strive against permitting multiplicity of proceedings in relation to similar issues

• [55] I pressed the Applicant on this point during the hearing. In my view, the Commission's task for general protections applications involving dismissal with a jurisdictional objection of no dismissal is to determine whether the Applicant was dismissed within the meaning of s.386 of the Act, whereas the Supreme Court will determine whether the purported termination of the Applicant's employment contract by the First Respondent was legally effective.

• [56] The Commission is concerned with whether the employment relationship was ended, which is a broader question than whether the resolution at the board meeting was an effective termination of the employment contract. For example, the Applicant mentioned other matters in his Application form which are relevant to whether the employment relationship ended, but which may be of less interest from a purely contractual perspective, such as how the Applicant claims he lost access to his emails and that passwords have been changed.[24]

• [57] That said, I note that there is factual overlap between each claim and there are issues in dispute which are similar, if not the same. This weighs in favour of granting a stay.

(j) Generally balancing the advantages and disadvantages to each party

• [58] I note that the First Respondent is an association whose board is made up of volunteers. The First Respondent provides services for veterans, who are vulnerable members of society. I note the objects of the association are as follows:

(a) To provide a Clubhouse and maintain facilities and amenities for the enjoyment and

comfort of its members, guests and eligible visitors.

(b) To perpetuate the memory of those who have served or shall hereafter serve in the

(c) To support the objects and ideals of the Returned and Services League of Australia

consistent with this Constitution and Rules.[25]

• [59] This is relevant to my consideration of the stay application. While the Commission should aim to avoid unnecessary costs for all parties, the Commission should especially attempt to avoid unnecessary costs for what is essentially is an association with charitable objectives. I note that the Respondents filed all their submissions and witness statements, along with other material, by the due date. After this, the Applicant made a request for a stay of proceedings. The costs incurred to the Respondents could have been avoided if the Applicant's request was made much earlier in the proceedings.

• [60] The Applicant has, thus far, only filed a Form F8 Application in relation to the substantive application. The Applicant has not yet filed any submissions in relation to the jurisdictional objection. This is relevant as it means the Respondents have likely incurred wasted costs which the Applicant has not.

• [61] The Respondents suggested that I should dismiss the proceedings as an abuse of process under s.587(1)(b) of the Act. The Respondents make the claim of an abuse of process, arguing that the Applicant made the application in the Commission without ever intending for the Commission to determine the jurisdictional objection and instead intending for the Supreme Court to determine that point.[26]

• [62] During the hearing on the stay application, the Applicant's representative made cogent remarks that the Applicant has done nothing wrong, as he is not obliged to elect between his rights. The Applicant's representative pointed to the objects of the Act in s.3 and s.733 of the Act which contemplates a carve out against the prohibition for multiple proceedings for claims pursuing termination-related entitlements, as indicators that the legislative intent of the Act is to encourage workers to pursue their contractual rights in addition to those they may have under the Act.

• [63] I agree that the Applicant should not be punished for exercising his rights, but I would note that he has a choice in how he goes about doing so. Although the Applicant's representative conceded that they should have made the Application for a stay earlier, it appears inescapable that the Respondents are the ones who, so far, have been prejudiced by the Applicant's choices to make parallel applications and to wait until the last minute to seek a stay. The Respondent has prepared their submissions and gathered witness statements in preparation for the jurisdictional hearing.

• [64] It is not just fairness to the Applicant which must be considered, but fairness to the Respondents.

• [65] Further, the Applicant's Form F8, in which he articulates his claim for protection against adverse action, is in substance, more of a diatribe than an application for relief.

• [66] The Applicant claims that he is simply exercising his statutory rights for protection of his workplace rights, however, in my preliminary view of the Form F8, the Applicant has not clearly pointed to any workplace rights which have been contravened. To date, the Applicant has not provided further submissions, other than the initial application.

• [67] Under s.375 of the Act, if I consider that a general protections court application does not have reasonable prospects of success, I must advise the parties accordingly. If the Applicant cannot articulate which workplace rights he is relying on, then it is not appropriate for him to lodge parallel proceedings simply because he wants to keep the Commission proceedings as a backup. Such behaviour, if substantiated, would warrant a finding for costs against the Applicant.

Whether proceedings should be dismissed against the Second Respondent

• [68] The Respondents requested that the claim against the Second Respondent, Mr Kevin Graham, be dismissed. Mr Graham only became a member of the board of the First Respondent after the board allegedly resolved to terminate the Applicant's employment.[27] Therefore, he could not have been involved in the decision to terminate the Applicant.[28]

• [69] During the hearing on the stay application, the Applicant responded to these concerns and advised that they would consent to removing Mr Graham as a Respondent in the matter.

• [70] Therefore, it is not necessary for me to consider whether the proceedings against Mr Graham should be dismissed. Should the application continue, it would be appropriate to exercise my discretion under s.586 of the Act to remove Mr Graham as a Respondent.

• [71] In weighing up the considerations set out in Sterling, as well as the submissions of the parties, I have determined that it is not appropriate to order a stay of proceedings.

• [72] The hearing on the jurisdictional objection will proceed. The Applicant is required to file their submissions in accordance with the Commission's directions. The parties will hear from my Chambers regarding programming of the hearing.

• [73] I note that the Applicant did not attend the hearing on the stay application. The Applicant will be ordered to attend the hearing on the jurisdictional objection.

• [74] The stay application is dismissed. I Order accordingly.

H Blattman for the Applicant, instructed by Otto Martiens Lawyers

C Campbell for the First and Second Respondent from Aitken Legal

[2] [2014] FWC 7326

[3] (1992) 34 FCR 287

[5] [2022] FWCFB 149

[6] Form F1 Application for Stay page 4 [1], Application Submissions for Stay Application

[7] Respondent Submissions on Jurisdictional Objection [16].

[9] Applicant Submissions on Stay Application [8].

[13] Respondent Submissions on Stay Application [24]

[14]UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77, 93-94.

[15] Respondent Submissions on Stay Application [27]

[16] Applicant Submissions on Stay Application [15].

[18] Respondent Submissions on Stay Application [21].

[21] Applicant Submissions on Stay Application [19].

[23] Respondent Submissions on Stay Application [17].

[25] Annexure KG13 to Kevin Graham Witness Statement.

[26] Respondent Submissions on Stay Application [15].

[27] Respondent Submissions on Stay Application [32].

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