Munaretti v ASC Fountain Gate

Introduction 1 The applicant was employed by the respondent in February 2016 as a Dermal Technician. In January 2017, the applicant was appointed to the position of Clinic Manager. 2 The applicant alleges that the respondent took adverse action within the meaning of s 342(1) of the Fair Work Act 2009 (Cth) against her when she was dismissed from her employment on 18 October 2018, following verbal and written complaints she had made to the respondent relating to conditions of her employment, and carer's leave taken to care for an immediate family member. The applicant submits that in making the complaints and taking carer's leave, she was exercising various workplace rights under the Fair Work Act. The applicant alleges that her dismissal was motivated by reason of the complaints that she made and the carer's leave that she took. The applicant claims to have suffered ongoing loss and damage as a result of her dismissal, and that she was entitled to a reasonable term of notice prior to the termination of her employment, and seeks damages, compensation, and pecuniary penalties against the respondent under the Fair Work Act. 3 At the first case management hearing on 22 March 2019, the Court raised with the parties whether the proceeding should be transferred to the Federal Circuit Court under s 32AB of the Federal Court of Australia Act 1976 (Cth). The Court determined to consider that issue in Chambers, and directed that the parties file submissions on that question.

Respondent's submissions 4 The respondent submits that the proceeding should be transferred to the Federal Circuit Court, and refers to the criteria in s 32AB(6) of the Act, and r 27.12 of the Federal Court Rules 2011 (Cth). 5 Section 32AB of the Act provides: 32AB Discretionary transfer of civil proceedings to the Federal Circuit Court (1) If a proceeding is pending in the Court, the Court may, by order, transfer the proceeding from the Court to the Federal Circuit Court. (2) The Court may transfer a proceeding under subsection (1): (a) on the application of a party to the proceeding; or (b) on its own initiative. … (6) In deciding whether to transfer a proceeding to the Federal Circuit Court under subsection (1), the Court must have regard to: (a) any Rules of Court made for the purposes of subsection (4); and (b) whether proceedings in respect of an associated matter are pending in the Federal Circuit Court; and (c) whether the resources of the Federal Circuit Court are sufficient to hear and determine the proceeding; and (d) the interests of the administration of justice. (7) If an order is made under subsection (1), the Court may make such orders as it considers necessary pending the disposal of the proceeding by the Federal Circuit Court. … 6 Rule 27.12 of the Federal Court Rules provides: 27.12 Factors to be taken into account (1) For an appeal under the AAT Act, the parties must address the matters mentioned in section 44AA(7) of that Act. (2) For a proceeding, the parties must address the matters mentioned in section 32AB(6) of the Act. (3) For an appeal under the AAT Act or a proceeding, the parties should address the following: (a) whether the appeal or proceeding is likely to involve questions of general importance; (b) whether it would be less expensive and more convenient to the parties if the appeal or proceeding were transferred; (c) whether an appeal or proceeding would be determined more quickly if transferred; (d) the wishes of the parties. Note: If the Court makes an order transferring an appeal or proceeding to the Federal Circuit Court of Australia, a Registrar will send all documents filed and all orders made to the proper officer of the Federal Magistrates Court. 7 The respondent referred to r 27.12(a), and s 32AB(2)(a) and (6)(a), and submitted that the proceeding raised no question of general importance, and that the outcome of the matter was unlikely to have effect beyond the rights of the parties in this case. The respondent submitted that determination of the matter would not involve application of novel or controversial questions of law, and that the legal questions raised by the applicant's case could be resolved by applying existing authority. In relation to the applicant's claims about her entitlement to a notice period, the respondent submitted that that is not a matter that requires development of significant common law principles. The respondent submitted that determination of the proceeding involves application of accepted legal principles, and interpretation of the applicant's contract of employment, which are matters suitable for the jurisdiction of the Federal Circuit Court. 8 The respondent noted that in relation to r 27.12(b), the costs of the matter will be far greater if it remains in the Federal Court, and that transfer of the proceeding at an early stage would not inconvenience the parties, or either Court to a significant degree. The respondent submitted that the resources of the Federal Circuit Court are sufficient and appropriate to determine the proceeding as required by s32AB(6)(c) of the Fair Work Act, as the Federal Circuit Court regularly determines general protections disputes of a similar nature. 9 The respondent submitted that the administration of justice warrants the transfer of the matter, referring to observations of White J in Fair Work Ombudsman v Ecosway Pty Ltd [2015] FCA 102 at [36] - [37] (noting that in that matter, the Court did not order that the proceeding be transferred). In that case, White J observed that the rationale for the establishment of the Federal Circuit Court was based on the principle that smaller matters would be allocated to a lower competent authority. The respondent submitted that this proceeding was an example of such a matter. 10 The respondent sought an order for costs in relation to preparation of the submissions seeking that the matter be transferred to the Federal Circuit Court, indicating that issuing the proceeding in the Federal Court was an unreasonable step by the applicant.

Applicant's submissions 11 The applicant submitted that questions about the notice period that should have been given to the applicant prior to any dismissal involve principles of law that have yet to be established and require the attention of a superior court. That question is whether s 117 of the Fair Work Act precludes implication of a common law term for reasonable notice when the applicant maintains that the employment agreement was silent about the required period of notice. 12 The applicant submitted that any decision in this proceeding will have bearing on other entities within the respondent's franchise group. The applicant submitted that costs would remain similar for the parties between the Federal Circuit Court and the Federal Court, and that there may be a longer delay in the determination of this matter in the Federal Circuit Court. The applicant submitted that there was uncertainty as to whether the resources of the Federal Circuit Court were sufficient to hear and determine the proceedings, and sought that the proceeding remain before the Federal Court. The applicant sought that no order be made as to the costs of the proceeding to date, denying that the proceeding had been instituted vexatiously or without reasonable cause.

Determination 13 In paragraph 5(d) of its defence, the respondent alleges that the applicant's replacement employment agreement (as referred to in the pleadings) did not contain a term enabling it to be terminated on reasonable notice, for reasons including that the parties were able to terminate the replacement agreement in accordance with the giving of notice pursuant to clause 14 of the Hair and Beauty Industry Award 2010. This issue, which has been alleged by the respondent, raises a question whether a term as to reasonable notice may be implied into a contract of employment, when the National Employment Standards under s117 of the Fair Work Act apply. The issue was referred to and discussed by White J in Heldberg v Rand Transport (1986) Pty Ltd [2018] FCA 1141 at [105], but his Honour found it unnecessary to determine. Given that the issue appears to be raised by the pleadings as a potential question in the proceeding, it is appropriate that the proceeding remain in this Court. I certify that the preceding fifteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wheelahan.