David Cormack, Barrister

FWC: Adverse Action & FWC Certificates

 

Hannaford v Barrett & Anor [2016] FCCA 106

The applicant made an adverse action claim alleging her dismissal was in contravention of the general protection provisions of the Fair Work Act 2009. As required the matter commenced in the Fair Work Commission (FWC) and proceeded to a conciliation conference, following which a certificate was issued, and proceedings commenced in the Federal Circuit Court.

The respondents sought to strike out certain paragraphs of the applicant’s Statement of Claim on the basis they did not form part of the dispute before the FWC and were not covered by the certificate. Hence, the Federal Circuit Court did not have jurisdiction to deal with the offending paragraphs.

Judge Jarrett dismissed the application on the basis that the matters were raised in dispute before the FWC and in any event, the applicant would have been able to commence proceedings for the non-dismissal dispute allegations, without a certificate. There was nothing which would warrant separate proceedings to be commenced for these sorts of matters, and the matters should be heard in the one proceeding.

Judge Jarrett

12.The respondents argue that the issue of a valid certificate by the Fair Work Commission pursuant to s.368(3)(a) of the Act is a precondition to the Court’s jurisdiction to entertain the applicant’s claim. That proposition is undoubtedly correct: s.370(a) of the Fair Work Act.

13. In the present case, on 29 January, 2015 the applicant applied to the Fair Work Commission to deal with her dispute. The Fair Work Commission conducted a conference to deal with the dispute on 26 February, 2015. The Fair Work Commissioner who conducted the conference issued as certificate pursuant tos.368(3)(a) of the Act on 13 March, 2015.

14. The respondents argue that the certificate issued by the Fair Work Commission in this case did not cover or extend to the claim or dispute pleaded in paragraphs 29, 30, 36 and 37 of the applicant’s Statement of Claim. Without a certificate that “covered” those matters, the respondents argue that this Court is bereft of jurisdiction to deal with them.The respondents’ argument must be rejected for the following two reasons.

15. The respondents’ argument must be rejected for the following two reasons.

16. First, having regard to the scope of the dispute that was the subject of the applicant’s application to the Fair Work Commission, the impugned allegations were within that dispute. In her application that initiated the proceedings in the Fair Work Commission, the applicant said:

  • Upon entering work the Applicant attended to usual matters and walked into the Respondent’s surgery where he was sitting with Ash. The Applicant said hello and asked how everyone was. There was no response from the Respondent. Ash said hello and ushered the Applicant out of the room into the staff room. She proceeded to give the Applicant a list of additional duties that the Applicant was to complete that day. She was very rude and out of character.
  • The Applicant walked to her reception desk to find 20+ urgent diary notes to be attend to. It was also the expectation that the Applicant assist in surgery for Nathan, another casual dentist at the practice.
  • The Respondent did not talk to the Applicant at all. At 4:30 pm as the Respondent went to leave the practice he also said that he expected the recall cards for that month to be sent out prior to the Applicant’s departure that evening. The Applicant was at work until 8:30 pm and was not paid for it.

17. The Fair Work Application contained section 3.3 which required the applicant to “Explain how the action you have described in 3.1 has contravened the section(s) of the Fair Work Act 2009 you identified in question 3.2.” Paragraphs 66 – 68 extracted above were contained within an annexure to the Fair Work Application that was provided in answer to section 3.1 of that form (ie. the facts upon which the claim was based).

18. In answer to section 3.3 the applicant attached another document to her Application (marked as “CH3”). In that document she said:

  • By taking adverse action against the Applicant (s.340FWA(1)(a)(i)) and injuring the Applicant by bullying and harassing the Applicant (s.342(1)(b) FWA) in contravention of a workplace right (ss.341(1)(a)).
  • By taking adverse action against the Applicant (s.340(1)(a)(i) FWA) and injuring the Applicant by causing financial loss and prejudice to the Applicant (s.342(1)(b) & (e) FWA) through increased workloads requiring overtime, which was not paid in contravention of a workplace right (s.341 (1)(a) FWA).

19. These matters reflect (although not in terms) the claims made by the applicant in paragraph 30 of the Statement of Claim.

20. The respondents, by their response made to the applicant’s Fair Work Application, specifically put the applicant’s allegations in paragraphs 66 – 69 (extracted above) in issue. That is to say they formed part of the dispute of the controversy that was before the Fair Work Commission. The legal consequence of those acts was also in issue.

21. Paragraph 29 of the Statement of Claim expands upon the claims in paragraphs 66 – 68 of the Fair Work Application, but not impermissibly so, in my view. The allegation in paragraph 30 restates the conclusions that the Applicant pursued in those parts of CH3 I have extracted above.

22. Secondly, even if the allegations in the impugned paragraphs were not “covered” by the s.368(2)(a) certificate, the applicant is entitled to pursue proceedings in respect of those matters because:

  • she was a person entitled to apply for relief in respect of those matters by reason of item 11 of 539and s.540(1)(a) of the Act;
  • the issue of a certificate pursuant to 368(2)(a)of the Act, or any other section of the Act for that matter, is not a pre-condition to the Court’s jurisdiction in respect of that claim: Sumontha v Action Workforce Australia Pty Ltd[2014] FCCA 725 at [22] – [24]; Faulkner v Tidewater Marine Australia Pty Ltd (No.2) [2015] FCCA 2218 at [33] – [35]. The requirement for a certificate to be issued before the commencement of Court proceedings applies only to general protection court applications that arise where a person is entitled to apply under s.365 of the Act to deal with the dispute.

23. The respondents seek to draw a distinction between a dismissal dispute and a non-dismissal dispute. They seek to characterise the impugned paragraphs as a non-dismissal dispute. They argue that Division 8 of Part 31 of the Act sets out separate and distinct legislative regimes for dealing with:

  • a contravention of Part 31of the Act involving dismissal (Subdivision A) which the respondents describe as a dismissal dispute; and
  • a contravention of Part 31not involving dismissal (in Subdivision B) which the respondents describe as a non-dismissal dispute.

24. The respondents argue that a dismissal dispute is a dispute where the employee alleges the relevant adverse action is the employer’s action to dismiss the employee.

25. The respondents argue that a non-dismissal dispute is a dispute where the employee alleges the relevant adverse action is an employer’s action to:

  • injure the employee in the employment;
  • alter the position of the employee to the employees prejudice; or
  • discriminate between the employee and other employees of the employer that is not a dismissal.

26. Assuming the respondents’ argument and characterisation is correct, the applicant would have been able to, and still may, pursue her non-dismissal dispute because:

  1. she did not need to apply to the Fair Work Commission to deal with her non-dismissal disputeat all. Section 372 of the Act permits the applicant to apply to the Fair Work Commission to deal with her dispute if she is not entitled to apply to the Fair Work Commission under 365 of the Act to deal with her dispute. However, she was not obliged to apply to the Fair Work Commission to deal with her non- dismissal dispute at all;
  2. there is nothing in the Act which suggests that in respect of a non-dismissal dispute an applicant cannot commence a general protections court application without first bringing an application to the Fair Work Commission to deal with that dispute; and
  3. section 365of the Act does not oblige her to apply to the Fair Work Commission to deal with her dismissal dispute. It is only if she wishes to pursue a general protections court application and she is otherwise entitled to apply under s.365 of the Act, that she needs the relevant certificate issued by the Fair Work Commission.

27. The respondents expressly disavow the notion that the applicant’s non-dismissal dispute is covered by the Fair Work Commission’s certificate. They argue that the non-dismissal dispute, is not a dispute which is “in relation to” the dismissal dispute which is the subject of the relevant s.365 certificate.

28. Assuming that the construction of the Act and the Commission’s certificate for which the respondents contended is correct, that the applicant’s non-dismissal dispute is not covered by the Fair Work Commission’s certificate is not surprising. The certificate is issued in respect of the dispute (s.368(1) of the Act) which, according to the respondent’s argument relates to a claim that the respondents took adverse action against her through dismissal. There is no scope for it to “cover” a non-dismissal claim.

29. However, no certificate is necessary before an applicant can commence proceedings in respect of a non-dismissal dispute. The only limitation upon such proceedings appears in s.544 of the Act.

30. There is nothing in the Federal Circuit Court Rules 2001, or in principle, which would suggest that the applicant was required to issue separate proceedings in this Court, one in respect of the dismissal dispute and one in respect of the non-dismissal dispute. All of her claims could, and should, be prosecuted in the one proceeding.

 

David Cormack – Brisbane Barrister & Mediator