Rentuza v Westside Auto Wholesale [2009] FMCA 1022

1. This is an application made to the Court's Fair Work Division and said to be commenced within the Court's jurisdiction under the Fair Work Act 2009 (Cth).[1]
2. The application is accompanied by a Form 3 being a claim under the FW Act alleging unlawful termination of employment of the applicant, Ms Rentuza, by the respondent, Westside Auto Wholesale, on 1 September 2009.
3. The grounds of the claim of unlawful termination are set out at Part G, section 24, of the Form 3, and eschew all the grounds specified under s.772(1) of the FW Act and claim that the reasons for the unlawful termination are other reasons, details of which are given on an attached sheet. Those details are as follows:
   • Annexure A
   • On Tuesday 1st September 2009 at around 5.pm Mr Bob Fowler (in the presence of Stephen Graham) advised me he was 'terminating my services effective immediately'.
   • He stated it was because I had advised a staff member to speak with a lender other than St George or Esanda with regards financing a car.
   • He also stated he had received a complaint from a customer advising I had given him (the customer) that same information.
   • Mr Fowler then asked Stephen to wait whilst I packed up my personal effects and he left my office.
   • I was about to forward my spreadsheet for August and September to my home email when he called Stephen on his mobile and apparently told him to 'pull the plug on the computer'.
   • Stephen followed me back and forwards whilst I put my things - including some very heavy pot plants - into my car.
   • I was extremely humiliated by this behaviour and believe that and my dismissal without notice or warning were both unfair and totally unwarranted.
   • I am seeking compensation in the amount of three months average income as per Annexure B.
4. Annexure B claims compensation in the sum of $51,317.87, said to be the average earnings of Ms Rentuza for a three month period.
5. Part I section 27 of the Form 3 claim form says that a certificate issued by Fair Work Australia[2] under s.777 of the FW Act[3] "must accompany your application and claim." In this case Ms Rentuza has crossed a box within section 27 indicating that a copy of the s.777 Certificate is not attached, but goes further and adds a hand-written note as follows:
   • "FWA not applicable".
6. It is relevant to note that the application does not seek that an interim injunction be made.
7. The Court notes that although section 27 of the Form 3 states that a s.777 Certificate must accompany the application and claim, the section also provides an optional box stating "Copy of certificate not attached". This section does not say that the other box is not to be used unless the application seeks an injunction or other interlocutory relief. Perhaps it should be amended to include that qualification.
8. On 15 October 2009 the respondent filed a response in which it asserted that the Court had no jurisdiction to deal with the application, it being in reality an application for unfair dismissal, but also that the Court was not able to grant relief to the applicant because the applicant had not obtained the s.777 Certificate. The respondent also asserted that the applicant had no standing because she was not an employee for relevant purposes.
9. When the matter was called on for a first directions hearing the Court asked Counsel for the applicant whether the Court had jurisdiction to entertain the application. Counsel for the applicant indicated that:

1. the application had originally been filed by the applicant herself; 2. the applicant had included the solicitors' address for service because those solicitors had, or were, acting for the applicant in family law proceedings;

1. the solicitors so named were acting in relation to the application, and had sought Counsel's advice, which seemingly was that the application could not be made and the Court had no jurisdiction; and

1. as a consequence of Counsel's advice the applicant did not intend to proceed with the application.
2. Counsel for the respondent indicated that the respondent's view was that the Court had no jurisdiction.
3. It is necessary for the Court to deal only with the s.777 Certificate issue.

772 Employment not to be terminated on certain grounds

(1) An employer must not terminate an employee's employment for one or more of the following reasons, or for reasons including one or more of the following reasons:

(a) temporary absence from work because of illness or injury of a kind prescribed by the regulations;

(b) trade union membership or participation in trade union activities outside working hours or, with the employer's consent, during working hours;

(d) seeking office as, or acting or having acted in the capacity of, a representative of employees;

(e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;

(f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin;

(g) absence from work during maternity leave or other parental leave;

(h) temporary absence from work for the purpose of engaging in a voluntary emergency management activity, where the absence is reasonable having regard to all the circumstances.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2) However, subsection (1) does not prevent a matter referred to in paragraph (1)(f) from being a reason for terminating a person's employment if:

(a) the reason is based on the inherent requirements of the particular position concerned; or

(b) if the person is a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed - the employment is terminated:

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.

(a) an employer terminates an employee's employment; and

(b) the reason, or a reason, for the termination is that the position held by the employee no longer exists, or will no longer exist; and

(c) the reason, or a reason, that the position held by the employee no longer exists, or will no longer exist, is the employee's absence, or proposed or probable absence, during maternity leave or other parental leave;

the employee's employment is taken, for the purposes of paragraph (1)(g), to have been terminated for the reason, or for reasons including the reason, of absence from work during maternity leave or other parental leave.

(4) For the purposes of subsection (1), subsection 109(2) (which deals with the meaning of voluntary emergency management activity) has effect as if the word employee had its ordinary meaning.

773 Application for FWA to deal with a dispute

(a) an employer has terminated an employee's employment; and

(b) the employee, or an industrial association that is entitled to represent the industrial interests of the employee, alleges that the employee's employment was terminated in contravention of subsection 772(1);

the employee, or the industrial association, may apply to FWA for FWA to deal with the dispute.

1. The use of the word "may" in s.773 means that a person does not have to apply to FWA in respect of any alleged unlawful termination, but if an application is to be made with respect to an alleged unlawful termination, the provisions of the FW Act provide for it to be made, in the first instance, to FWA only.
2. The legislative scheme then continues as follows:

(a) within 60 days after the employment was terminated; or

(b) within such further period as FWA allows under subsection (2).

(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:

(b) any action taken by the employee to dispute the termination; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(e) fairness as between the person and other persons in a like position.

(1) The application must be accompanied by any fee prescribed by the regulations.

(a) a fee for making an application to FWA under section 773; and

(c) the circumstances in which all or part of the fee may be waived or refunded.

(1) If an application is made under section 773, FWA must conduct a conference to deal with the dispute.

Note 2: FWA may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(2) Despite subsection 592(3), FWA must conduct the conference in private.

If FWA is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, FWA must issue a certificate to that effect.

778 Advice on unlawful termination court application

(1) If FWA considers, taking into account all the materials before it, that an unlawful termination court application in relation to the dispute would not have a reasonable prospect of success, it must advise the parties accordingly.

(2) An unlawful termination court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of subsection 772(1).

1. Division 2 of Part 4-1 of the FW Act sets out orders that can be made by the Court with respect to contravention of a civil penalty, including those related to alleged unlawful termination of employment for reasons set out in s.772(1).[4] Section 545(2)(b) provides for the making by the Court of orders for compensation for loss suffered because of any contravention.
2. Section 778 is followed by s.779 which is critical to the present disposition of this matter. Section 779 provides as follows:

779 Unlawful termination court applications

(1) A person who is entitled to apply under section 773, to FWA for FWA to deal with a dispute must not make an unlawful termination court application in relation to the dispute unless:

(a) FWA has issued a certificate under section 777 in relation to the dispute; or

(b) the unlawful termination court application includes an application for an interim injunction.

(2) Despite section 544, an unlawful termination court application that requires a certificate under section 777 must be made within 14 days after the certificate is issued.

1. Section 779 takes the form of a mandatory prohibition on the making of an unlawful termination court application unless:
   1. a s.777 Certificate has issued; or
   2. the application includes an application for the making of an interim injunction.
2. Rule 45.07 of the Federal Magistrates Court Rules 2001 (Cth)[5] provides as follows:

45.07 Application in relation to alleged unlawful termination of employment (Fair Work Act, s 539 (2), table, item 35)

An application for an order in relation to an alleged unlawful termination of an employee's employment that occurred on or after 1 July 2009 must:

(i) a claim in accordance with the approved form; and

(ii) unless the application includes an application for an interim injunction, a certificate issued by Fair Work Australia under section 777 of the Fair Work Act that provides that Fair Work Australia is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.

1. Rule 45.07 of the FMCA Rules takes the form of a mandatory requirement: if an application is made a s.777 Certificate must be attached, unless the application is for an interim injunction.

1. Considering the above provisions as a whole, but also in particular, ss.777 and 779 of the FW Act and r.45.07 of the FMC Rules, it is manifestly clear that, except where an interim injunction is applied for, an application to this Court alleging unlawful termination cannot be made unless a s.777 Certificate is obtained from FWA.
2. The requirements for the application alleging unlawful termination to be made to FWA, and more particularly, for FWA to issue a s.777 Certificate, have not been met and therefore this is an application which could not have been made.
3. It is the Court's first duty to be satisfied that it has jurisdiction to deal with the subject matter of the proceedings.[6] By reason of the matters referred to above this is an application which cannot have been made, and there is either no application, and hence no jurisdiction, or simply no jurisdiction to deal with the matter presently before the Court. In those circumstances the matter must be dismissed.
4. The Court notes that there is still time for the applicant to make an application to FWA, the 60 day time limit in s.774(1)(a) not yet having expired.

1. A party may be ordered to pay the costs of proceedings where the Court exercises jurisdiction under the FW Act in limited circumstances prescribed by s.570(1), which include, under s.570(2)(b), the Court being satisfied that the party's unreasonable act or omission caused the other party to incur costs.
2. For the purposes of s.570(2)(b) two criteria must be fulfilled. They are:
   1. that a party must have engaged in an unreasonable act or omission; and
   2. that the unreasonable act or omission must have caused another party to incur costs in connection with the proceeding.[7]
3. Whether a party has engaged in an unreasonable act or omission depends upon an objective analysis of the particular circumstances of the case.[8]
4. The exercise of the discretion in s.570(2)(b) is not necessarily engaged because:

1. a party does not conduct litigation efficiently;[9] 2. a concession is made late;[10]

1. a party may have acted in a different or timelier fashion;[11]

1. a party has adopted a genuine but misguided approach.[12]
2. In this case, the respondent sought the costs of the proceedings, which were instituted without the Court having jurisdiction. Counsel for the applicant frankly and properly conceded that the applicant was unable to resist an application for costs incurred up to the hearing on 19 October 2009. The Court considers that that concession is proper because the Court considers the applicant's action in instituting the proceedings without the required s.777 Certificate was an "unreasonable act". It was unreasonable because Part I section 27 of the Form 3 clearly indicates that the s.777 Certificate must accompany the application. That would cause any reasonable person, including a self-represented litigant, to pause and make further enquiries in the event that they did not have to hand a s.777 Certificate to attach. In this case, however, the applicant has gone one step further and indicated that the s.777 Certificate is not attached because "FWA not applicable". On any reading of the provisions of the FW Act set out above it is not the case that this matter ought not to have proceeded before the FWA, or that the FWA process is not applicable_._ There is no evidence before the Court that the provisions were read and misunderstood, and, frankly if there had been such evidence it would, on a plain reading of the provisions of the FW Act, have been evidence which strained credulity. In the circumstances, the Court can only infer that the relevant provisions of the FW Act have either not been read, or that if they have been read, they have been disregarded. In either event, the relevant act is an unreasonable one. Although the order made awards costs under s.570(2)(b), costs might equally, in the circumstances, have been awarded under s.570(2)(a) as having been instituted without reasonable cause.
3. The respondent is entitled to costs under Schedule 1 of the FMC Rules at the rate prescribed for Stage 1, namely initiating or opposing application up to completion of first court date, that being a sum of $2,350. The Court has not awarded costs for the daily hearing fee, as in the circumstances, there were very limited submissions, and the respondent was on notice that the applicant did not intend to proceed. The Court therefore took the view that the sum of $2,350 was an appropriate and fair sum to award in the exercise of its broad discretion in relation to costs.[13]

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Lucev FM

[6] R v Bolton [1841] EngR 193; [1835-42] All ER Rep 71 at 73-74 per Lord Denman CJ; Federated Engine-Drivers & Firemen's Association v Broken Hill Proprietary Co Ltd [1911] HCA 31; (1911) 12 CLR 398 at 415 per Griffith CJ ("FEDFA"). See also FEDFA at 428 per Barton J and 454 per Isaacs J and Re Boulton; Ex parte Construction, Forestry, Mining and Engineering Union (1998) 73 ALJR 129 at 133 per Kirby J.

[7] Construction, Forestry, Mining and Energy Union v Clarke (2008) 170 FCR 574 at 582 per Tamberlin, Gyles and Gilmour JJ; [2008] FCAFC 143 at para.28 per Tamberlin, Gyles and Gilmour JJ ("Clarke").

[8] Australian and International Pilots Association v Qantas Airways Ltd (No.3) [2007] FCA 879; (2007) 162 FCR 392 at 402 per Tracey J; [2007] FCA 879 at para. 32 per Tracey J ("Qantas (No.3)"); McAleer v University of Western Australia (No.2) (2007) 161 IR 151; [2007] FCA 247.

[9] Clarke FCR at 582 per Tamberlin, Gyles and Gilmour JJ; FCAFC at para.29 per Tamberlin, Gyles and Gilmour JJ.

[10] Clarke FCR at 582 per Tamberlin, Gyles and Gilmour JJ; FCAFC at para.29 per Tamberlin, Gyles and Gilmour JJ.

[11] Clarke FCR at 582-583 per Tamberlin, Gyles and Gilmour JJ; FCAFC at para.30 per Tamberlin, Gyles and Gilmour JJ.

[12] See, for example, the approach in Qantas (No.3) FCR at 403 per Tracey J; FCA at para.39 per Tracey J.

[13] Federal Magistrates Act 1999 (Cth), s.79(3)