Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Platypus Outdoors Group Pty Ltd T/A Platypus Outdoors Group

Application for an unfair dismissal remedy. Whether application prohibited by section 725.

[1] On 2 May 2018, Mr Bryce Hamilton (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment with Platypus Outdoors Group Pty Ltd T/A Platypus Outdoors Group (the Respondent) was unfair.

[2] The Applicant commenced employment with the Respondent on or about 13 February 2017 and was terminated on 12 April 2018. The Applicant was dismissed on the grounds of unsatisfactory performance. Prior to and at the time of the termination of his employment, the Applicant had been a member of the Australian Defence Force Reserve (Defence Reserve).

[3] The Respondent objects to the application on the basis that it was made in breach of s 725 of the Act. Specifically, that some time before making the application the Applicant had lodged a complaint with the Office of Reserve Service Protection (ORSP) of the Department of Defence alleging his dismissal contravened s 32 of the Defence Reserve Service (Protection) Act 2001 (the DRSP Act).

[4] Determination of the Respondent's jurisdictional objection was set down for a hearing/conference on 18 July 2018.

[5] After taking into account the wishes of the parties as to the way in which the Commission would consider and inform itself in relation to the application, I decided to conduct a conference pursuant to s 398 of the Act to determine the jurisdictional objection raised by the Respondent.

[6] The Applicant appeared at the conference and gave evidence on his own behalf and also called Lieutenant Colonel Grigsby, the Deputy Director of the ORSP, to give evidence.

[7] Mr Peter Hull of Peter Hull and Associates sought leave to appear on behalf of the Respondent under s 596(2)(a) of the Act on the grounds that it would enable the matter to be dealt with more efficiently having regard to the complexity of the matter. Permission to appear was granted. Mr Hull called on the Respondent's Chief Executive Officer, Mr Ben Doyle-Cox to give evidence.

[8] As previously stated, the Applicant was terminated by the Respondent on 12 April 2018, confirmation of which was provided in a letter to the Applicant dated 12 April 2018.[1]

[9] On 27 April 2018, the Applicant filed a Reserve Service Complaint (the ORSP Complaint)[2] with the ORSP pursuant to s 32 of the DRSP Act. The details included in the Applicant's ORSP Complaint were that the Respondent had:

• (1) Unfairly changed the Applicant's role after his return from a period of deployment; and

• (2) Unfairly dismissed the Applicant within six months of his return after the period of deployment.

[10] On 1 May 2018, Lieutenant Colonel Grigsby met with Mr Ben Doyle-Cox[3] and Mr Peter Hull. The purpose of the meeting was to discuss the ORSP Complaint made by the Applicant in relation to his dismissal by the Respondent.

[11] On 2 May 2018, the Applicant filed his application for unfair dismissal pursuant to s 394 of the Act. The Applicant responded "no" at question 1.5 of the application which asks "Have you made another claim to the Commission or to any other organisation in relation to your dismissal (eg an unfair dismissal claim)?"[4]

[12] On 17 July 2018, the Applicant formally withdrew his ORSP Complaint by way of an email to Lieutenant Colonel Grigsby.[5]

[13] The Respondent submits that for the purpose of s 725 of the Act, the Applicant's ORSP Complaint made on 27 April 2018 was "an application or complaint under another law" pursuant to s 732 of the Act.

[14] The Respondent further submits that for the purpose of s 725 of the Act, the unfair dismissal application filed by the Applicant on 2 May 2018 was an application pursuant to s 729 of the Act.

[15] According to the Respondent, it was clear on the evidence adduced that the ORSP Complaint had not been withdrawn nor failed for want of jurisdiction prior to 2 May 2018 when the unfair dismissal application was filed by the Applicant.

[16] Having regard to the date that the ORSP Complaint was lodged, the Respondent submits that the unfair dismissal application contravenes s 725 of the Act and should therefore be dismissed for want of jurisdiction.

[17] The Applicant conceded that he had made his ORSP Complaint on 27 April 2018 and had not withdrawn the ORSP Complaint, nor had it been dismissed for want of jurisdiction, prior to his lodging his unfair dismissal application on 2 May 2018.

[18] While initially contending that the ORSP Complaint was not an "application or complaint" in relation to his dismissal, the Applicant ultimately conceded that the description of the complaint specifically referred to his dismissal as did the material appended to the ORSP Complaint.

[19] The Applicant submitted that s 76(C) of the DRSP Act enabled his ORSP Complaint to proceed in parallel with his unfair dismissal application. In the alternative, he submitted that his formal withdrawal of the ORSP Complaint pursuant to s 732(1)(b)(i) of the Act on 17 July 2018 enlivened his unfair dismissal application and allowed the Commission to proceed to deal with it.

Defence Reserve Service (Protection) Act 2001

[20] It is necessary to consider the DRSP Act under which the Applicant made his ORSP Complaint. The DRSP Act prohibits conduct that discriminates against Defence Reserve members in their employment or other work. The Act deals with employment, partnership, education, bankruptcy and financial liability protection and applies to current and serving Defence Reserve members, former Defence Reserve members and persons who intend to undertake Defence Reserve service as Reserve members.

[21] An overview of the DRSP Act is found at s 3 which relevantly states as follows:

(1) The following is a simplified overview of the Act.

(2) This Act sets out entitlements and prohibitions that apply in relation to people who are rendering, or have rendered, defence service as members of the Reserves. In some cases, the entitlements extend to their dependants.

(3) The kind of defence service rendered by a particular member determines the scope of the prohibitions and entitlements available in relation to him or her: see Part 3.

(4) Part 4 contains prohibitions against conduct that discriminates against members in their employment or other work. This Part applies to all types of defence service.

(5) Part 5 sets out the consequences for a member's employment if he or she was employed when he or she started to render defence service. This Part applies to all kinds of defence service.

[22] The Applicant filed his ORSP Complaint pursuant to a claimed breach by the Respondent of s 32 of the DRSP Act which relevantly states as follows:

"Division 5 - Termination of employment after resumption of employment etc.

(1) This section applies if an employer has (in accordance with this Part) permitted a member to resume work or reinstated a member in employment.

(2) During the period that begins immediately after the member resumes work, or is reinstated in employment, and that is equal to the length of the member's absence on defence service, the employer must not:

• (a) terminate the member's employment; or

• (b) vary the member's employment by employing the member in a capacity, or under terms and conditions, less favourable to the member than the capacity in which, or the terms and conditions under which, the member was employed on resuming work or being reinstated in employment.

(3) Paragraph (2)(a) does not apply if, because of changed circumstances since the member resumed work or was reinstated (except employing someone else to replace the member), it was not within the employer's power to retain the member in employment.

(4) Subsection (2) does not apply if the termination or variation of the member's employment was because of misconduct by the member that was serious enough to justify the termination or variation.

(5) To avoid doubt, the member's absence on defence service is not misconduct for the purposes of subsection (4)."

[23] Processes for the making and investigation of complaints are provided for in regulations as specified in s 72B which relevantly states as follows:

(1) The regulations may provide in relation to processes for any of the following:

• (a) making and investigating complaints about alleged contraventions of this Act;

• (b) mediating disputes between persons whose interests are affected by this Act.

(2) This Division does not limit the other Divisions of this Part."

[24] The DRSP Act makes clear that the rights of persons to make applications under any other law are not affected by the DRSP Act. Section 76C relevantly states as follows:

"76C This Act does not limit other protections for members

This Act does not limit any protection that is afforded to a member, or to a former member, under any other law."

Fair Work Act 2009

[25] Section 725 of Subdivision B of Division 3 of Part 6-1 of the FW Act relevantly provides as follows:

A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies."

[26] Section 725 is intended to prevent applicants from lodging multiple applications in relation to the dismissal. As explained in the Fair Work Bill 2008 Explanatory Memorandum:

2707 This Subdivision is intended to prevent a person 'double-dipping' when they have multiple potential remedies relating to a dismissal from employment by seeking to limit a person to a single remedy.

2708 Clauses 726 to 732 set out all of the potential remedies that may apply. Clause 725 is the key operative provision. It provides that if a person has made an application that falls within any of clauses 726 to 732 then they may not bring an application that falls within any of the other clauses."

[27] Section 732 of the FW Act, being the section relevant to this objection, provides:

(1) This section applies if:

• (a) an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and

• (b) the application or complaint has not:

  • (i) been withdrawn by the person who made the application; or

  • (ii) failed for want of jurisdiction.

(2) An application or complaint under another law is an application or complaint made under:

• (a) a law of the Commonwealth (other than this Act); or

• (b) a law of a State or Territory.

(3) For the purposes of this Subdivision, if a complaint under the Australian Human Rights Commission Act 1986 relates to a dismissal only as a result of an amendment of the complaint, the complaint is taken to be made when the complaint is amended."

Was the ORSP Complaint an application or complaint made under other laws?

[28] The DRSP Act is a piece of Commonwealth legislation that affords employment and other protections to members of the Defence Reserve. It clearly provides for a complaint and investigation process and in the absence of complaint resolution enables a complainant to pursue remedies in a court of competent jurisdiction.

[29] I am satisfied that the ORSP Complaint filed by the Applicant on 27 April 2018 was "an application or complaint under another law" for the purposes of s 732 of the Act.

Was the ORSP Complaint made in relation to the Applicant's dismissal?

[30] While the Applicant initially contended that his ORSP Complaint was not in relation to his dismissal, that position cannot be reconciled with the specific basis of the complaint detailed in his ORSP Complaint. In any event, the Applicant failed to press his position or adequately support it with any evidence beyond the material contained in and attached to the ORSP Complaint.

[31] I am satisfied that the ORSP Complaint was squarely made in relation to the Applicant's dismissal. So much is clear from a plain reading of the ORSP Complaint.

[32] Having regard to my conclusions at paragraphs [28] and [30], I am satisfied that the ORSP Complaint is a complaint to which s 732 of the Act applies.

Was the ORSP Complaint withdrawn or dismissed for want of jurisdiction?

[33] A Full Bench considered the operation of s 725 in Peter Ioannou v Northern Belting Services Pty Ltd[6] (Ionnauo) to allow amendments to applications made under s 394 of the Act so that they may proceed as general protections applications under s 365 of the Act. In commenting on s 725 the Full bench relevantly stated as follows:

[28] In relation to the present matter, the effect of s.725 is that the applicant must not make an application in relation to his dismissal under s.365 unless the unfair dismissal application has been withdrawn, failed for want of jurisdiction or failed because the dismissal was a case of genuine redundancy (s.729(1)(b)). In other words, s.725 of the Act operates to preclude the applicant from bringing a general protections application in circumstances where there is an extant s.394 application before the Commission.

[29] The applicant's submission that the power in s.586 should be exercised so as to allow the applicant to pursue the "more appropriate" cause of action misses the point. The multiple action provisions are, for amongst other reasons, designed to allow that to happen. The Explanatory Memorandum to the Fair Work Bill 2008 makes this clear. It provides:

"2710. In all cases the anti-double dipping provisions will not apply where the initial application has:

2711. This is intended to ensure that a person does not miss out on a remedy because they were unable to make a competent application for another remedy or where they have realised another remedy may be more appropriate than the remedy they initially sought."

[30] It follows from s.725 of the Act that the applicant is statutorily barred from making a general protections application unless the unfair dismissal application is withdrawn (or otherwise fails for jurisdiction reasons). Section 588 of the Act allows an applicant to discontinue an application in accordance with any procedural rules, whether or not the matter has been settled. Rule 10 of the Rules deals with the discontinuance of applications before the Commission by the applicant lodging a notice of discontinuance or giving appropriate notice that, inter alia, the applicant wishes to withdraw the application.

[31] The appropriate course for the applicant in the present matter to take if he seeks to pursue an application under s.365 of the Act in relation to his dismissal in lieu of the unfair dismissal application, is to withdraw the s.394 application and to file a s.365 application. In such circumstances, the appropriate procedural and other requirements under the Act for the making of the s.365 application will need to be met and an extension of time sought in accordance with s.366 of the Act.

[34] The operation of s 725 was also considered by Deputy President Gostencnik in Alex v Costco Wholesale Australia[7] (Alex). The Deputy President specifically considered the implications of the withdrawal of a concurrent application and stated as follows:

"[12] I have given consideration to whether I would be able to exercise my discretion to waive any irregularity under s. 586 the Act in relation to the application in the event that the Applicant discontinued the AHRC Complaint. However I have decided that that power is not available in this case because the prohibition of making this application operated at the time that the application was made to this Commission and as such there is no valid application and no irregularity to correct. Furthermore, the subsequent withdrawal of the AHRC complaint merely removes the bar to making a s. 365 application after the withdrawal. It does not operate retrospectively to allow that which was prohibited on 7 January 2014. Even if I am wrong in this conclusion, I would not exercise my discretion in this case because to do so would undermine the very purpose that s. 725 is designed to achieve, namely the prevention of multiple applications being brought in relation to the same subject matter.

[14] In those submissions the Applicant says that he has discontinued the AHRC complaint although he did not provide any evidence to that effect. In consequence, the Applicant says that s. 725 no longer acts as a bar to the application and the Commission should conduct a conference. Further, he says that if a conference is not conducted and the application is dismissed, he would be without a remedy, and that is not the intended operation of s.725.

[15] The fact that the Applicant may have withdrawn his AHRC Complaint does not alter the effect of s. 725 on the application he made to this Commission on 7 January 2014 for the reasons given above in paragraph [12]. In any event, the Applicant has not provided any evidence of the purported withdrawal by him of the AHRC Complaint. The Respondent has provided correspondence from the AHRC which indicates the AHRC Complaint was terminated pursuant to s. 46PH(1)(i) of the Australian Human Rights Commission Act 1986 (AHRC Act). Consequently, there has not been a withdrawal nor failure for want of jurisdiction of the AHRC Complaint. As to the alleged absence of a remedy, that is clearly not the case. An application to the Federal Court of Australia or the Federal Circuit Court of Australia alleging unlawful discrimination may be made under s. 46PO of the AHRC Act because the AHRC Complaint has been terminated."

[35] It is clear on the authority of Ioannou, supported by the Deputy President Gostencnik's approach in Alex that, in order for a valid unfair dismissal application to have been made by the Applicant in the present matter, it would be necessary for him to have withdrawn his ORSP Complaint or had it dismissed for want of jurisdiction prior to making his unfair dismissal application on 2 May 2018.

[36] There is no warrant for the construction of s 725 of the Act advanced by the Applicant such that it would allow the statutorily barred unfair dismissal application to proceed, simply by the withdrawal of the extant ORSP Complaint on 17 July 2018. Such a construction would theoretically allow multiple applications to proceed concurrently until an applicant was forced to make an election as to which application to press on the "eve" of determination of one the concurrent applications. This would expose a respondent to increased time and expense in defending claims in different jurisdictions. This could not have been the intention of the legislature in my view.

[37] The Applicant did not withdraw his ORSP Complaint until 17 July 2018. Consequently, the unfair dismissal application made by the Applicant on 2 May 2018 was statutorily barred due to the extant ORSP Complaint at that date. The fact that the ORSP Complaint was subsequently withdrawn cannot alter the effect of the s 725 on the Applicant's unfair dismissal application.

Does s 76C of DRSP Act allow concurrent applications?

[38] Finally, I will briefly deal with the Applicant's contention that s 76C of the DRSP Act operates so as to allow applications under the DRSP and other laws to proceed concurrently. I believe that contention to be plainly wrong.

[39] Section 76(c) of the DRSP Act was inserted by way of amendment in the Defence Legislation Amendment (2017 Measures No. 1) Bill 2017. The Explanatory Memorandum in referring to s 76(C) stated as follows:

"Item 99 - insets a new section to confirm that the Act does not limit protections available to a member or former member under any other law. For example, nothing in the Defence Reserve Service (Protection) Act 2001 would prevent a person from taking advantage of other protections available under the Fair Work Act 2009 or under anti-discrimination legislation."

[40] In my view, s 76C does no more than confirm that nothing in the DRSP Act prevents a person, who would be entitled to pursue a right under the DRSP Act, from pursuing a right available under a different act, including under the Act. The protection of that right to pursue an unfair dismissal application under the Act is clear. That however does not mean that s 725 of the Act has no work to do by reason of s 76C of the DRSP Act. The DRSP says nothing about concurrent applications and as such cannot override the effect of s 725 of the Act.

[41] I am satisfied that ORSP Complaint lodged by the Applicant on 27 April 2018 was "an application or complaint under another law" and was "in relation to his dismissal" pursuant to s 732 of the Act. I am further satisfied that, at the time of the Application on 2 May 2018, the ORSP Complaint had not been withdrawn or failed for want of jurisdiction.

[42] Section 725 prohibits the Applicant's unfair dismissal application in the circumstances and consequently the application must be dismissed. The Respondent's jurisdictional objection is upheld. An order dismissing the application is separately issued.

[1] Exhibit A3, Termination letter dated 12 April 2018.

[2] Exhibit A9, Reserve Service Complaint.

[3] Exhibit R1, Witness Statement of Mr Ben Doyle-Cox, dated 11 June 2018 at paragraph [7].

[4] Form F2 - Unfair dismissal application, dated 27 April 2018.

[5] Exhibit A10, Case 298 Withdrawal of ORSP Claim.

[6] [2014] FWCFB 6660.

[7] [2014] FWC 1904.

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