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[74]
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[2019] FWC 3718
Fair Work Commission
2019-05-29
Original judgment source is linked above.
43.1 Unless otherwise stated the terms "party" or "parties" referred to in this clause means the employer and/or the employees, as the context requires.
43.2 This dispute resolution procedure will apply to disputes about:
(a) any matters arising in the employment relationship, except matters relating to the actual termination of employment of an employee;
(b) threatened termination, with the exception that the arbitration provisions in subclause 43.6 do not apply unless the parties agree. Further, the parties rights are reserved during this process and the employer may exercise their right to terminate the employee in accordance with the agreement;
(e) whether an employer had reasonable business grounds under subsection 65(5) of the Act- (requests for flexible working arrangements) or 76(4) of the Act- (requests for extending unpaid parental leave).
43.3 An employer or employee may appoint another person, organisation or association (e.g. Union or Aged & Community Services NSW & ACT) to accompany and/or represent them for the purposes of this clause.
43.4 In the event of a dispute the parties will initially attempt to resolve the matter at the workplace level, including, but not limited to:
(a) the employee and his or her supervisor discussing the matter; and
(b) if the matter is still not resolved the parties arranging further discussions involving more senior levels of management (as appropriate).
43.5 If a dispute is unable to be resolved at the workplace, in accordance with subclause 43.4, a party to the dispute may refer the matter to the FWC or other appropriate statutory tribunal.
43.6 The parties agree that the FWC shall have the power to do all such things as are necessary for the just resolution of the dispute including:
(a) mediation, conciliation and, with the exception of disputes arising under clause 36- Workload Management, arbitration; and
(b) arbitration, for disputes arising under clause 36 - Workload Management, only with the agreement of the parties.
43.7 While the dispute resolution procedure is being conducted, work must continue in accordance with this agreement and the Act. Subject to applicable occupational health and safety legislation, an employee must not unreasonably fail to comply with a direction by the employer to perform work, whether at the same or another workplace that is safe and appropriate for the employee to perform."
Scope of disputes capable of resolution under the EA's dispute resolution procedure
(a) non compliance with the National Employment Standards relating to the termination[13]; and
(b) the accuracy of entitlements paid to the Applicant upon termination
are also "matters" that relate to the "actual termination" of the Applicant's employment and therefore also fall within the exclusion under clause 43.2(a) of the EA.
Validity of dispute resolution clause (Clause 43) of the EA
12. The Applicant has previously, unsuccessfully, challenged the validity of Clause 43 of the EA. Clause 43 has been determined by the Fair Work Commission not to be an unlawful term[14].
Non compliance with pre-conditions required under clause 43.4
Subject matter of dispute pleaded in concurrent Fair Work Commission proceedings
[35] On 16 May 2019 the UPA further submitted that,
- These submissions supplement the previous submissions filed by the Respondent on 25 January 2019.
The Applicant's standing to make application under s739
3. In order for the Applicant to make an application under s739, she must be a current employee at the time of making the application or otherwise, in the case of a former employee, the dispute must have arisen during the employment and continued after the termination[17].
The Applicant's employment was terminated on 20 December 2017
7. The Applicant has lodged General Protections Dismissal proceedings in relation to the termination of her employment[20] for which Commissioner Johns issued a certificate under s386(3) on 30 April 2019.
8. Irrespective of the Applicant's contentions, for the Applicant to have standing to commence an application under s739, the dispute must have arisen during her employment up to 20 December 2017 or have arisen during that employment and continued after the termination[21].
(a) the fact of the termination of employment is a matter already determined by DP Gooley[22] and affirmed by the Full Bench;
(b) it is not a matter that arose during the employment relationship between the Applicant and the Respondent[23]; and
(c) in any event such a matter is expressly excluded from clause 43.2 of the Respondent's Enterprise Agreement[24]:
"This dispute resolution procedure will apply to disputes about:
(a) any matters arising in the employment relationship, except matters relating to the actual termination of employment of an employee;"
Non-compliance with the National Employment Standards
"This dispute resolution procedure will apply to disputes about:
(a) any matters arising in the employment relationship, except matters relating to the actual termination of employment of an employee;"
(d) the Applicant already relies on the same or similar allegations in the General Protections Dismissal proceedings[25] which were commenced prior to these proceedings and remain on foot. To make the same allegations and seek the same damages in the present proceedings, running concurrently, constitutes unfair "double dipping".
(a) the Applicant continues to allege she was misclassified and underpaid before her injury on 27 August 2013. Such matters have already been heard and determined by VP Lawler[26], affirmed by the Full Bench[27] and again alleged and dismissed by Commissioner Johns[28] (and again affirmed by the Full Bench[29]). There is simply no entitlement;
(b) the Applicant alleges that from the time of her injury until 15 May 2014 (when her workers compensation claim was denied), she has unpaid entitlements due to her workplace injury. If there are such entitlements, they can only be determined by application of the Workers Compensation Act 1987 (NSW) for which the Fair Work Commission has no jurisdiction[30]; and
(c) for any entitlements after 15 May 2014, the Applicant did not perform any actual work for the Respondent and had no entitlement to payments under the relevant Enterprise Agreement. So there can be no dispute about such entitlements.
(b) the Applicant already relies on these allegations in the General Protections Dismissal proceedings[31] which were commenced prior to these proceedings and remain on foot. To make the same allegations and seek the same damages in the present proceedings, running concurrently, constitutes unfair "double dipping"; and
(c) in any event such a matter is expressly excluded from clause 43.2 of the Respondent's Enterprise Agreement:
"This dispute resolution procedure will apply to disputes about:
(a) any matters arising in the employment relationship, except matters relating to the actual termination of employment of an employee;"
[36] An aspect of the application brought by Mrs Grabovsky was to the effect that the dispute resolution clause in the 2014 Agreement was invalid. That contention has been heard and determined against Mrs Grabovsky on at least two occasions. I follow those decisions and agree with them.
[37] The language used in clause 43 of the 2014 Agreement enables the matter to be disposed of promptly. It refers to:
the terms "party" or "parties" and then go goes on to define them as meaning "the employer and/or the employees".
"matters arising in the employment relationship, except matters relating to the actual termination of employment of an employee",
further references to "an employer or employee", and
attempts being made to resolve "the matter at the workplace level, including, but not limited to the employee and his or her supervisor discussing the matter".
[38] That is to say the whole scheme of dispute resolution under the 2014 Agreement contemplates that there is an employment relationship in existence at the time that the dispute arises. That is not the case in the present matter.
[39] The employment of Mrs Grabovsky ended on 20 December 2017. At that point in time she ceased to be an employee. It makes no sense to suggest that she did or could have raised with her employer the termination of her employment and the payments made to her on termination during the employment relationship. Her disputes about those matters only arose once the termination had been effected. By then her employment had already ended.
[40] This means she did not and could not have complied with the requirements of clause 43.4 in discussing those matters with her supervisor. That is a precondition to making an application to the Commission.
[41] By the time that application was made to the Commission Mrs Grabovsky had ceased to be an employee 1 year, 4 months and 18 days earlier.
[42] Of course, it is well established that former employees can enliven the jurisdiction of the Commission in circumstances where they had commenced the dispute resolution process in advance of the cessation of their employment. In ING Administration Pty Ltd v Jajoo[32] the Full Bench majority traversed the various single member decisions concerning former employees and noted that it was effectively the first Full Bench to consider the particular question in the context of the then legislative scheme under the Workplace Relations Act 1996 (Cth). The majority concluded,
[38] We accept that a single person dispute which arises for the first time after the termination of employment is not a dispute between an employer and an employee. Whether, many disputes will arise my employment exists and continue after the termination of employment. In such a case, when the dispute arises it is a dispute between an employee and an employer. If the dispute has progressed to the point of seeking the assistance of the Commission, the ING interpretation would require the employee to remain in employment. If it was intended to incorporate a limitation in s.170LW of the nature contended for by ING, we would expect there to be a clear express reference to that effect."
[43] The Full Bench majority rejected that contention. Mr Jajoo was permitted to continue before the Commission because he had enlivened the dispute resolution process prior to the termination of employment.
[44] However that is not the case in the present circumstances. Mrs Grabovsky's dispute clearly falls within the category "a single person dispute which arises for the first time after the termination of employment". Consequently it follows that it is not a dispute between an employer and an employee.
[45] In Shields & Sprigg v Alfred Hospital[33] Senior Deputy President Kaufman, in deciding a matter under the FW Act, held that the decision in ING was apposite. In that matter the dispute between the applicants and the respondent did not arise, or at least was not agitated, until after their employment with Alfred Health had come to an end. It necessarily followed that Fair Work Australia (as the tribunal was then called) lacked jurisdiction to deal with the matter. For this same reason, the Commission lacks jurisdiction to deal with Mrs Grabovsky's application. The dispute about her termination of employment and entitlements paid on termination arose only after the fact of termination (i.e. after she ceased to be an employee).
[46] In any case, the dispute resolution clause carved out matters "relating to the actual termination of employment of an employee". An employee's remedy in respect of the same lies in commencing either an unfair dismissal case (which Mrs Grabovsky has not done) or a case alleging a breach of the general protections provisions involving dismissal (an application which was made by Mrs Grabovsky, and in respect of which I have given her a certificate to continue with in a court of competent jurisdiction).
[47] For the reasons set out above I was satisfied that the Commission was not invested with jurisdiction to deal with the application. The jurisdictional objections of the UPA were upheld.
[48] In deciding to dismiss Mrs Grabovsky's application I note that it does not affect any of her substantive rights in relation to the matters she sought to pursue in this application. To the extent that she disputes the fact of the termination of employment, compliance with the NES standards and the accuracy of entitlements paid to her on termination she is at liberty pursue those matters in a court of competent jurisdiction. My decision expresses no view about the merits of those claims. My decision is simply that those matters are not within the jurisdiction of the Commission to address or remedy.
[49] The application by Mrs Grabovsky was dismissed.
[50] An Order[34] to this effect was issued earlier today.
Mr Puxty, Partner, Cantle Carmichael Legal, for the Respondent
[2] [2018] FWC 1549 [26].
[6] [1990] HCA 9; (1990) 169 CLR 245 at 269. Also see R v Moore; ex parte Australian Telephone and Phonogram Officers' Association [1982] HCA 5; (1982) 148 CLR 600 (11 February 1982).
[7] Re Furnishing Industry Association of Australia (Queensland) Limited Union of Employers, Print Q9115, 27 November 1998 per Giudice J, Watson SDP, Hall DP, Bacon C and Edwards C.
[8] (2003) 127 IR 205 at [48].
[9] Also see Re Furnishing Industry Association of Australia (Queensland) Ltd Union of Employers, Print Q9115, 27 November 1998 per Giudice J, Watson SDP, Hall DP, Bacon C and Edwards C.
[11] See ING Administration -v- Jajoo [2006] 158 IR 239 at [38] to [41] - Full Bench decision dealing with the predecessor provisions of s.170LW of the Workplace Relations Act 1996 (Cth) and applied to the application of s.739 in Fairall-v- St George & Sutherland Community College Inc [2012] FWA 8847 and Shields & Spriggs v Alfred Health [2012] FWA 162.
[12] i.e. the catchphrase associated with Arnold Schwarzenegger, which he first used in his role as the title character from the 1984 science fiction film The Terminator.
[13] As particularised in Attachment 1 to the Form F10 Application filed on 8 May 2018
[14] Grabovsky v United Protestant Association of NSW Limited [2014] FWCFB 7533 and Grabovsky v United Protestant Association of NSW Limited [2018] FWC 7227
[15] Grabovsky v United Protestant Association of NSW Limited [2015] FWC 2504 and affirmed on appeal to Full Bench in Grabovsky v United Protestant Association of NSW Limited [2015] FWCFB 3926
[16] Grabovsky v United Protestant Association of NSW Limited [2018] FWC 7227
[17] See ING Administration -v- Jajoo 7 [2006] 158 IR 239 at [38] to [41] - Full Bench decision dealing with the predecessor provisions of s170LW of the Workplace Relations Act 1996 (Cth) and applied to the application of s739 in Fairall -v- St George & Sutherland Community College Inc [2012] FWA 8847 and Shields & Spriggs -v- Alfred Health [2012] FWA 162
[18] Grabovsky -v- United Protestant Association of NSW Limited [2018] FWCFB 2474 - 21 May 2018
[19] Grabovsky -v- United Protestant Association of NSW Limited [2018] FWC 1549 - 15 March 2018
[20] FWC matter no: C2018/685 filed by the Applicant on 8 May 2018
[21] As per the line of authorities referenced in paragraph 3 above.
[22] Which unambiguously found that the Applicant's employment with the Respondent was terminated on 20 December 2017 at [26].
[24] The UPA, NSWMNA and HSU Enterprise Agreement 2014 - 2017
[25] Refer Attachment 3 to Form F8 filed by the Applicant on 9 February 2018 in matter no C2018/685
[26] Grabovsky v United Protestant Association of NSW Limited [2015] FWC 2504
[27] Grabovsky v United Protestant Association of NSW Limited [2015] FWCFB 3926
[28] Grabovsky v United Protestant Association of NSW Limited [2018] FWC 7227
[29] Grabovsky v United Protestant Association of NSW Limited [2019] FWCFB 1964
[30] Noting the Applicant has already brought proceedings in the NSW Workers Compensation Commission which were dismissed by Arbitrator Douglas on 3 November 2015; that decision affirmed on appeal in Grabovsky v United Protestant Association of NSW Limited [2016] NSWWCCPD 15
[31] Refer Schedule 3 to Form F8 filed by the Applicant on 9 February 2018 in matter no C2018/685
Printed by authority of the Commonwealth Government Printer
Mrs Inna Grabovsky
United Protestant Association NSW Ltd T/A UPA [2019] FWC 3718
[11] On 24 September 2018 the Commission received an application from Mrs Inna Grabovsky to "correct obvious errors" in the Full Bench decision [2018] FWCFB 2474. The application was made under s.602 of the FW Act. One of the alleged errors was again the date of dismissal. On 30 November 2018 the Full Bench dismissed the application.[4]
[12] I set out the above chronology in relation to C2018/685 because it is relevant to an issue in dispute in the present matter. That is, whether Mrs Grabovsky's employment was terminated and, if so, when.
[13] In Re 4 Yearly Review of Modern Awards - Preliminary Jurisdictional Issues[5] the Full Bench observed (albeit in another context),
"When a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasion upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law: see Queensland v The Commonwealth [1977] HCA 60; (1977) 139 CLR 585 per Aickin J at 620 et seq."[6]
(1977) 139 CLR 585
(1990) 169 CLR 245
(1982) 148 CLR 600
(2003) 127 IR 205