Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy. Whether applicant has made multiple applications. Sections 566, 725, 732 of the Fair Work Act considered. Whether Court application was in relation to the dismissal.

[1] On 1 May 2017, Ms Rajwinder Kaur Gill (the applicant) lodged an application under s.394 of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy arising from her dismissal by Karan Grewal Pty Ltd T/A Curry Palace (the respondent) on 10 April 2017.

[2] The applicant had been employed by the respondent as a 'Tandoor Cook' from 13 July 2015.

[3] The unfair dismissal application states that she was treated unfairly from the time she informed the respondent of her pregnancy, which was in August 2016.[1] The applicant alleges she was forced to perform the same duties after having provided the respondent with a medical certificate requesting light duties due to her pregnancy.

[4] The respondent initially raised two jurisdictional objections to the unfair dismissal application, claiming that the application was made outside of the 21 day statutory timeframe and that the dismissal was consistent with the Small Business Fair Dismissal Code. The respondent asserted it employed less than 15 employees at the time of the applicant's dismissal, making it a small business employer as per s.23 of the FW Act. The out of time objection was subsequently withdrawn by the respondent.

[5] Following an unsuccessful conciliation on 7 June 2017, the matter was referred for formal proceedings before the Fair Work Commission (the Commission).

[6] The matter was listed for a telephone directions conference on 10 July 2017. At the conference the Commission raised the issue of s.725 of the FW Act in respect of the statutory prohibition on multiple applications. Section 725 of the FW Act operates to prevent an applicant lodging an unfair dismissal application where an application of another kind in relation to their dismissal has also been lodged. The Commission sought clarification from the applicant about other proceedings she had commenced in the Australian Human Rights Commission (AHRC) which had been referred to in the attachments to her application Form F2.

[7] Directions were issued on 11 July 2017 requiring the applicant to file submissions addressing ss.725 and 732 of the FW Act. The directions also required the parties to file their submissions and witness statements relating to the substantive application, and listed the matter for hearing on 25 August 2017, in Esperance.

[8] On 25 August 2017, the matter was part heard in Esperance where argument centred on the Commission's jurisdiction to hear the claim.

[9] At the hearing it was agreed that further submissions were required in respect of ss. 725 and 732 of the FW Act, and the Commission indicated that further directions would be issued in this regard.

[10] The parties agreed that the jurisdictional issue with regard to whether the current unfair dismissal application is statute barred (as submitted by the respondent), pursuant to ss. 725 and 732, could be dealt with by way of written submissions.

[11] On 13 October 2016, while still employed by the respondent, the applicant made an application in the Australian Human Rights Commission (AHRC) alleging pregnancy and disability discrimination. In her application the applicant stated, inter alia, that:

• I'm worried that I will lose my job"[2]

[12] On 15 March 2017, having been satisfied that there was no reasonable prospect of the matter being settled by conciliation, the AHRC terminated the complaint. The AHRC termination of complaint correspondence advised the applicant that she was able to apply to the Federal Circuit Court of Australia (FCCA) or the Federal Court "to have the allegations decided by the court." The applicant had 60 days to file such an application if she wished to continue with the matter.

[13] On 10 April 2017, the applicant's employment was terminated. The applicant had 21 days to file an application in the Commission alleging unfair dismissal.

[14] On 1 May 2017, the applicant filed an unfair dismissal application in the Commission.

[15] On 12 May 2017, the applicant filed in the Federal Court an application originating under the Australian Human Rights Commission Act 1986 (Cth), matter WAD213/2017. The application alleges that the applicant was unlawfully discriminated against by the respondent as per the Sex Discrimination Act 1984 (Cth), referring in part to section 7 - Discrimination on the ground of pregnancy or potential pregnancy, and the Disability Discrimination Act 1992 (Cth). Included in the remedy sought was compensation for time off work since the dismissal on 10 April 2017 and continuing.

[16] On 31 May 2017, matter WAD213/2017 was transferred by Barker J to the FCCA and became matter PEG279/2017.

[17] On 3 July 2017, in respect of matter PEG279/2017, Judge Lucev of the FCCA ordered that the applicant file and serve a statement of claim by 14 July 2017, with the matter to be adjourned until 28 July 2017.

[18] On 13 July 2017, the applicant, in accordance with the FCCA orders, filed her statement of claim seeking damages as a remedy and referring to her threat of termination of employment and her actual termination of employment on 10 April 2017, in her supporting grounds.[3]

[19] On 28 July 2017, Judge Lucev ordered that the respondent file and serve its response by 28 August 2017 and that the matter be referred for mediation.

[20] On 22 August 2017, the respondent, in accordance with the FCCA orders, filed its response. Matter PEG279/2017 is still before the FCCA.

[21] In summary the respondent submits that the AHRC and Federal Court application (subsequently transferred to the FCCA) is a matter relating to the unfair dismissal claim in the Commission, having raised the 'threat of dismissal' in the AHRC complaint, and that the FCCA application was a claim that related to the unfair dismissal application.[4]

[22] It submits that the application made to the Federal Court is effectively a continuation of the AHRC complaint and, whether seen as a single proceeding or two separate proceedings, both are clearly and directly related to the applicant's dismissal.[5]

[23] The respondent submits the alleged factual basis and detailed allegations made in both the applicant's unfair dismissal claim and the claim now before the FCCA are the same. The respondent cites the findings of Magistrate Lucev, as he then was, in Birch v Wesco Electrics (1996) Pty Ltd,[6] where it was held that there was a direct relationship between a General Protections application in the FCCA and a complaint to the Commissioner for Equal Opportunity made under the Equal Opportunity Act 1984 (WA) as there was reliance on the same allegations and the same factual basis in both complaints.[7]

[24] The respondent submits that the statutory purpose of s.725 is to prevent an applicant from 'double dipping' when they have multiple potential statutory remedies available related to a dismissal from employment.[8] The respondent submits that this is exactly what the applicant is trying to do in pursuing both claims.

[25] The applicant contends that the FCCA application is a continuation of the AHRC complaint and, based on the termination of complaint notice of 15 March 2017, it has no connection to the applicant's dismissal. The applicant submits, in summary, that both the AHRC and the FCCA applications were mutually exclusive, separate causes of action from the unfair dismissal application and that the remedies being sought are different.[9]

[26] The applicant submits the basis of the FCCA complaint is unlawful discrimination and that there is no connection, direct or otherwise, between the unfair dismissal application and the FCCA complaint. The relationship is tenuous or remote at best. The applicant submits the unlawful discrimination preceded the applicant's dismissal and the applicant would have pursued the FCCA application regardless of her subsequent dismissal. The applicant submits that the FCCA matter is based on unlawful discrimination, not unfair dismissal, and that if such a claim was to be filed by the applicant it would need to be filed in the Fair Work Division of the FCCA.[10]

[27] The applicant submits the question of double dipping does not arise as the applicant's FCCA application has not been determined. She further submits that should the unfair dismissal application be dismissed on the basis of a double dipping or multiple applications scenario, and is subsequently unsuccessful in her FCCA application, the applicant has been potentially precluded from obtaining a remedy, on the basis of a scenario that has not eventuated.[11]

[28] 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."

[29] 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."

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

(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."

[31] Section 46PO(1)-(4) of the Australian Human Rights Commission Act 1986 (Cth) provides as follows:

(a) a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and

(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

(2) The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.

(3) The unlawful discrimination alleged in the application:

(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

(a) the court concerned grants leave to make the application; or

(b) the complaint was terminated under paragraph 46PH(1)(h); or

(c) the complaint was terminated under paragraph 46PH(1B)(b).

(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:

(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;

(c) an order requiring a respondent to employ or re-employ an applicant;

(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;

(e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;

(f) an order declaring that it would be inappropriate for any further action to be taken in the matter."

[32] As stated, the applicant's employment was subsequently terminated on 10 April 2017. As can be seen from s.46PO(3) above, the unlawful discrimination alleged in any Federal Court or FCCA application must be the same as or the same in substance as the unlawful discrimination that was the subject of the terminated AHRC complaint; or must arise out of the same or substantially the same acts, omissions or practices that were the subject of the terminated complaint.

[33] In Dye v Commonwealth Securities Ltd (No 2)[12] the following was observed by the Federal Full Court about s.46PO:

"46 Section 46PO(3) contemplates some ambit for additional conduct, acts, omissions or practices to constitute unlawful discrimination. In Travers v State of New South Wales [2000] FCA 1565 at [8] Lehane J referred to the terms of s 46PO(3) as suggesting a degree of flexibility. However, s 46PO(3) operates as an important constraint upon the ability of a complainant later to seek relief in the Court in respect of a complaint he or she had not previously raised for consideration by the Commission. As Lehane J cautioned, the ability to make an application to the Court "should not be used to launch an application ... effectively bypassing the procedures provided by the legislation": Travers [2000] FCA 1565 at [8]. His Honour also followed the warning of Branson J in Commonwealth v Sex Discrimination Commissioner [1998] FCA 1607; (1998) 90 FCR 179 at 188B-D, that usually a complaint will not be drawn by a lawyer and it ought not be construed as a pleading. Justice Branson held also that a complaint under s 46P was not to be equated to a criminal complaint or information: 90 FCR at 188B. Her Honour followed Merkel J's decision in Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 at 93-94 that a complaint in writing did not need to include any details of the alleged unlawful discrimination (see now s 46P of the AHRC Act).

47 As Lehane J said in Travers [2006] FCA 1565 at [8], the ambit of the complaint may be ascertained for the purpose of s 46PO(3), not by considering its initial form, but by considering the shape it had assumed at the time of its termination: see too Simplot 69 FCR at 94F-G. In Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531; (2000) 105 FCR 573 at 580-581 [35]- [41] Katz J considered the construction of s 46PO(3). He held that s 46PO(3)(b) permitted an applicant to allege different facts in proceedings in the Court from those alleged in the terminated complaint, provided that those new facts were not different in substance from those formerly alleged: Charles 105 FCR at 580 [39].

48 The unlawful discrimination referred to in s 46PO(3) consists of any acts, omissions or practices alleged in the complaint that amount to unlawful discrimination as defined in s 3(1) of the AHRC Act. It is not appropriate for a court considering an application for leave to amend to preclude an amendment that raises an arguable claim for relief, especially where the terms of s 46PO(3)(b) (in particular) permit of some flexibility. And, in applying the terms of s 46PO(3), the terms of a complaint made to the Commission should not be read with the same strictures as apply to a pleading in a Court. Not only was this approach implicitly recognised by the flexibility of the terms employed in the sub-section itself, s 46PR required an approach "not bound by technicality". It provided in relation to, among other provisions, s 46PO:

46PR In proceedings under this Division, the Federal Court and the Federal Magistrates Court are not bound by technicalities or legal forms. This section has effect subject to Chapter III of the Constitution."

The "substantive directions" given by s 46PO(3) must still be respected, notwithstanding the provisions of s 46PR: Maghiar v Western Australia [2002] FCA 262 at [18] per French J."

[34] While it is a matter for the FCCA to determine (if required), whether the FCCA application is compliant with s.46PO, the applicant's subsequent termination of employment appears, prima facie, to arise out of substantially the same acts, omissions and practices that were the subject of the terminated AHRC complaint. The AHRC complaint and Federal Court application allege discrimination due to her pregnancy. The unfair dismissal application alleges unfairness from the time the applicant informed the respondent of her pregnancy, leading to her eventual dismissal.

[35] The respondent's objection to the unfair dismissal claim is that it offends s.725 of Subdivision B of Division 3 of Part 6-1 of the FW Act, which precludes multiple applications in respect of termination of employment in certain circumstances. Put simply, the section prevents related matters being dealt with in two jurisdictions. As the Fair Work Bill 2008 Explanatory Memorandum states at Item 2695 under the heading of Part 6-1 Multiple Actions:

"This Part deals with cases where there may be more than one remedy available for the same conduct or circumstances. It ensures that people have access to an appropriate remedy but also ensures that they are not entitled to more than one remedy in such cases."

[36] As held in the decision of Cook v ACI Operations Pty Ltd,[13] I consider that the words in s.725 'make an application or complaint' are ambulatory in nature with the question to be considered at the point in time when the operation of s.725 is to be determined. At this point in time there are applications in two jurisdictions which the respondent contends relate to the applicant's dismissal whereas the applicant contends that the Federal Court application is unrelated to the applicant's dismissal. In any event the AHRC application, which is a complaint made under a law of the Commonwealth, relied upon the applicant's concern that she may lose her job.[14]

[37] The applicant's unfair dismissal application filed in the Commission, in stating why the dismissal was unfair, provides, among other things:

"I was treated unfairly from the time I informed my employer of my pregnancy".

[38] As to the remedy sought, the applicant seeks:

"1. Compensation for time off work since dismissal and continuing until I find other suitable employment.

3. 4 weeks pay in lieu of notice. Received only 2 weeks.

4. Any shortfall in my accrued entitlements or payment during my period of employment.

[39] The application in the Federal Court listed as the remedy sought, compensation in the following terms:

"1. Compensation for time off work since dismissal on 10 April 2017 and continuing.

3. 4 weeks pay in lieu of notice. Applicant received only 2 weeks

4. Shortfall in accrued entitlements and/or payments during the Applicant's period of employment, in particular between the period 24 November 2016 to 10 April 2107."

[40] Section 732 of the FW Act refers to an application under another law having been made 'in relation to the dismissal'. The expression 'in relation to' has been the subject of judicial consideration. In the Federal Court judgment of Woodside Energy Ltd (ABN 63 005 482 986) v Commissioner of Taxation for the Commonwealth of Australia[15] French J (as he then was) stated the following:

"The words 'in relation to' and similar terms like 'in respect of' or 'in connection with' or just 'in' have been considered in many cases and many contexts. They denote a necessary connection between two subject matters which may be activities, events, persons or things. The nature and closeness or remoteness of the connection depends upon context. In Workers' Compensation Board (Qld) v Technical Products Proprietary Limited [1988] HCA 49; (1988) 165 CLR 642, the term 'in respect of' was said to have a wide meaning. It '... gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends' (at 653-654 per Deane, Dawson and Toohey JJ). The words 'in relation to' have been described as a 'prepositional phrase' which is 'indefinite' and which, 'subject to any contrary indication derived from its context or drafting history ... requires no more than a relationship whether direct or indirect between two subject matters' - O'Grady v North Queensland Company Limited [1990] HCA 16; (1990) 169 CLR 356 at 376 (McHugh J). The term is indefinite and will not generally apply to any relationship no matter how remote. The extent of the relationship required will depend upon the context in which the words are used - Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549; (2001) 114 FCR 472 at 482 (Hill J) and authorities there cited."

[41] Goldberg J addressed the meaning of the phrase in Australian Securities & Investments Commission v Citrofresh International Ltd[16]:

"The expression "in relation to" has been the subject of judicial consideration in a number of different contexts. A consistent theme running through the case is that the expression "in relation to" gathers its meaning from the context in which it appears and the purpose for which it appears: see, eg, Oceanic Life Ltd v Chief Commissioner of Stamp Duties [1999] NSWCA 416; (1999) 168 ALR 211 at 225, per Fitzgerald JA. The words "in relation to" have a very wide meaning, but like the expression "in respect of", they do not extend to "any relationship however tenuous": Technical Products Pty Ltd v State Government Insurance Office (Queensland) [1989] HCA 24; (1989) 167 CLR 45 at 51; The Workers' Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49; (1988) 165 CLR 642 at 653-654. See generally, D C Pearce and R S Geddes, Statutory Interpretation in Australia (6th ed, 2006), pp 359-367 and the cases there cited."

[42] What can be gleaned from these judgments is that the phrase 'in relation to' is to be defined according to the context in which it appears and the purpose for which it appears, with the words having no application to a tenuous or remote relationship.

[43] The circumstances pleaded in both matters have a significant amount of commonality in that they relate to the applicant's pregnancy, indicating that the relationship between both applications is neither remote nor tenuous. The conduct complained of in both applications relates to the alleged adverse treatment of the applicant on the ground of pregnancy. The scope of the Federal Court application is sufficiently broad to be 'in relation' to the dismissal.

[44] In both the FCCA and unfair dismissal applications the remedies sought include loss of earnings since the dismissal. This is precisely what s.725 of the FW Act is intended to prevent. The applicant submits that the FCCA can take into consideration any award by the Commission.[17] It is not for the FCCA to take into consideration "at the appropriate juncture" any compensation awarded by the Commission when determining damages. The unfair dismissal application simply cannot proceed where the FCCA application is in relation to the dismissal.[18]

[45] The applicant's submission that she is not claiming 'unfair dismissal' in the FCCA and that such an application has not been made[19] does not address the legislative test, which is whether the application 'is in relation' to the dismissal, not whether the FCCA application was a claim of 'unfair dismissal'. In any event an unfair dismissal application cannot be made anywhere other than in the Commission.

[46] The FCCA can deal with any civil matter arising from the FW Act as per s.566, which states:

"Jurisdiction is conferred on the Federal Circuit Court in relation to any civil matter arising under this Act"

[47] The 'civil matter' must, however, be judicial in nature, as the FCCA has no jurisdiction to determine whether a dismissal is 'unfair,' which is an arbitral process. In Amirbeaggi v Parramatta Eye Centre Pty Ltd, Judge Emmett, when considering s.566 of the FW Act, elaborated in some detail why the FCCA has no direct or associated power to deal with an unfair dismissal claim.[20]

[48] On the applicant's argument, s.732 of the FW Act could only ever be invoked if a claim for 'unfair dismissal' was made under another law, which could never eventuate as the Commission is the sole jurisdiction in which to make such an application.

[49] I find that the application before the FCCA is an application made under another law as per s.732 of the FW Act. The extent of the relationship between the AHRC complaint and the FCCA application and the unfair dismissal application in the Commission is demonstrated by the common factual matrix alleging discrimination or unfairness based on the ground of pregnancy, and by the similar remedies sought relating to loss of earning since the dismissal.

[50] The AHRC complaint and the FCCA application are applications or complaints in relation to the unfair dismissal application before the Commission. As such, the applicant's unfair dismissal filed in this Commission is statute barred as per s.725 from continuing and is dismissed for want of jurisdiction.

Mr Dara Singh Friedman Lurie Singh & D'Angelo for the respondent

[1] Form F2 - Unfair Dismissal Application, item 3.2.

[2] Attachment (B) to AHRC complaint Notice of Termination at [3] and [9].

[4] Respondent's submissions 16 August 2017; further submissions 2 November 2017.

[5] Respondent's further submissions 2 November 2017 at [5].

[6] [2012] FMCA 5.

[7] Respondent's further submissions 2 November 2017 at [6].

[8] Ibid at [7], citing Explanatory Memorandum, Fair Work Bill 2008 (Cth).

[9] Applicant's submissions 28 July 2017; further submissions 16 October 2017, 14 November 2017.

[10] Applicant's submissions 16 October 2017 at [3].

[11] Applicant's submissions 14 November 2017 at [10e].

[12] [2010] FCAFC 118; (2010) 63 AILR 101-302, Marshall, Rares and Flick JJ. See also comments of Bromwich J in Hastwell v Kott Gunning [2017] FCA 1557.

[13] [2011] FWA 3715 at [15].

[14] Section 46PA of the Australian Human Rights Commission Act 1986 allows for a complaint to be amended at any time subject to leave of the President.

[15] [2016] FCA 1303 at [57].

[16] [2007] FCA 1873 at [66].

[17] Applicant's submissions 14 November 2017 at [10c].

[18] This argument also assumes that the unfair dismissal application outcome will be known prior to the FCCA application outcome.

[19] Applicant's submissions of 16 October 2017 at [3].

[20] [ 2017] FCCA 1915 at [34], [37].

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