Angela Suhr v Allity Pty Ltd T/A Sylvan Woods

[2017] FWC 3699

[2017] FWC 3699

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Angela Suhr
v
Allity Pty Ltd T/A Sylvan Woods
(C2017/204)

COMMISSIONER CIRKOVIC MELBOURNE, 13 JULY 2017

Application to deal with contraventions involving dismissal – whether application prohibited by s.725.

[1] On 11 January 2017, Ms Angela Suhr made a general protections application (application) under s.365 of the Fair Work Act 2009 (the Act) alleging that Allity Pty Ltd T/A Sylvan Woods (the Respondent) had contravened ss.340, 343, 344, 346, 348 and 351 of the Act in relation to the termination of her employment on 22 December 2016.

[2] I have determined the matters on the papers and I have determined that Ms Suhr’s application was prohibited by s.725 of the Act.

Background

[3] Ms Suhr lodged her application on 11 January 2017. In response to question 1.5 ‘Have you made another claim to the Commission or to any other organisation in relation to your dismissal’, she stated no.

[4] On 6 March 2017, Ms Shay O’Connor of the Respondent sent correspondence to the Fair Work Commission (Commission) seeking that the application be rejected and/or dismissed, on the grounds Ms Suhr had filed an application on ‘identical terms’ to the Anti-Discrimination Commission Queensland (ADCQ) and that a conciliation conference had taken place on Friday 3 March 2017 in the ADCQ.

[5] The Respondent’s jurisdictional objection was listed for mention via telephone before me on 16 March 2017. On 16 March 2017, two attempts to call Ms Suhr were made, both times voicemails were left. In the absence of Ms Suhr’s participation the matter was adjourned and my chambers sent correspondence to Ms Suhr requesting that she provide her reason/s for not participating and informing her that the matter was relisted for telephone mention on 11 April 2017.

[6] On 21 March 2017, my chambers called Ms Suhr leaving a voicemail on her mobile phone requesting that she call chambers. On 27 March 2017, my chambers sent correspondence to Ms Suhr, forwarding the 16 March 2017 correspondence and referencing the 21 March 2017 attempt to call. The correspondence noted that to date chambers had not received a response from Ms Suhr and requested that Ms Suhr confirm her participation in the relisted telephone mention.

[7] On 10 April 2017, Ms Suhr sent correspondence to the Commission to confirm her participation in the telephone mention on 11 April 2017. Ms Suhr explained that she had not had consistent access to the internet and had been unable to receive electronic mail. Ms Suhr confirmed she had resolved this issue and confirmed that she did not see it as an ongoing issue.

[8] On 11 April 2017, a telephone mention was conducted. Ms Suhr and Ms O’Connor and Ms Kim Walford of the Respondent participated.

[9] Following the telephone mention of 11 April 2017, I issued directions on 13 April 2017 requiring the parties to file and serve an outline of submissions and any evidentiary material they intended to rely upon.

[10] On 26 April 2017, the Respondent filed and served its outline of submissions and evidentiary material.

[11] Ms Suhr was required to file by close of business 23 May 2017. On 23 May 2017, Ms Suhr sent correspondence to chambers requesting an extension of 7 days to file. I granted Ms Suhr a 7 day extension to file, requiring her to file by close of business 30 May 2017.

[12] On 31 May 2017, my chambers sent correspondence to Ms Suhr noting that she had not complied with directions to file and serve by close of business 30 May 2017 and asking that she do so as soon as possible.

[13] On 2 June 2017, Ms Ferguson of the Respondent sent correspondence to my chambers noting that Ms Suhr has continued to fail to comply with directions and provide a response. The Respondent requested that I dismiss Ms Suhr’s application on the papers. The Respondent requested that if the application was not dismissed on the papers, that the hearing be vacated and the matter be relisted for a telephone directions hearing.

[14] On 6 June 2017, my chambers sent correspondence to Ms Suhr forwarding the Respondent’s correspondence of 2 June 2017 and requesting that she provide a response by close of business Thursday 8 June 2017. Ms Suhr did not provide a response.

[15] On 9 June 2017, I vacated the hearing date and informed parties the matter would be relisted for further directions.

[16] On 16 June 2017, my associate called Ms Suhr leaving a voicemail on her mobile phone. In the voicemail my associate explained that Ms Suhr was non-compliant with directions of the Commission and if she remained so she ran the risk of the matter being determined on the basis of the material currently before the Commission.

[17] On 20 June 2017, my chambers sent correspondence to Ms Suhr setting out the above chronology of non-compliance. Ms Suhr was put on notice that if my chambers did not receive a response from her by close of business 26 June 2017, I would either determine the Respondent’s application to dismiss on the papers, or relist the matter for hearing on the materials currently before the Commission.

[18] On 27 June 2017, my associate called Ms Suhr leaving a voicemail on her mobile phone. In the voicemail my associate explained that she was calling in relation to the email of 20 June 2017 and outlined the previous attempts of chambers to follow up Ms Suhr’s submissions in response to the Respondent’s application to dismiss her application. My associate explained that the matter would be listed for hearing on 17 July 2017 at 2:00pm and that I would determine the Respondent’s application on the on the papers and the oral submissions at hearing. The matter was listed for hearing on 17 July 2017 at 2:00pm. A notice of listing was sent to the parties.

[19] On 29 June 2017, my chambers sent Ms Suhr, via express post, a copy of: the notice of listing for the hearing of 17 July 2017, the emails sent to Ms Suhr on 25 and 31 May, 6 and 20 June 2017 and the email sent by the Respondent to my chambers and Ms Suhr on 2 June.

[20] On 4 July 2017, Ms Ferguson of the Respondent sent correspondence to my chambers requesting the application be struck out on the papers and the hearing vacated. The Respondent requested that if the application was not dismissed on the papers, that the hearing be relisted via telephone.

[21] On 4 July 2017, my chambers sent correspondence to Ms Suhr forwarding the Respondent’s correspondence of 4 July 2017 and noting that in light of her continued non-compliance I was minded to grant the Respondent’s application to determine the matter on the papers and to vacate the hearing. Ms Suhr was put on notice that if my chambers did not hear from her by close of business Friday 7 July 2017, the hearing would be vacated and I would determine the Respondent’s application to dismiss on the papers. This correspondence was also sent to Ms Suhr via express post.

[22] On review of the Australia Post tracking numbers, it appears the correspondence of 29 June 2017 was delivered to Ms Suhr on 30 June 2017 and the correspondence of 4 July 2017 was delivered to Ms Suhr on 5 July 2017.

The Statutory Framework

[23] Section 725 of the Act provides as follows:

“725 General rule

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.”

[24] Section 727 of the Act provides as follows:

“727 General protections FWC applications

(1) This section applies if:

(a) a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction; or

(iii) resulted in the issue of a certificate under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful).

(1A) This section also applies if:

(a) a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction; and

(c) a certificate in relation to the dispute has been issued by the FWC under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful); and

(d) a notification of the parties’ agreement to the FWC arbitrating the dispute has been made as referred to in paragraphs 369(1)(b) and (c).

(2) A general protections FWC application is an application under section 365 for the FWC to deal with a dispute that relates to dismissal.”

[25] Section 732 of the Act provides as follows:

“732 Applications and complaints under other laws

(1) This section applies if:

(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.”

[26] Section 725 of the Act imposes a prohibition on an employee making a general protections application if they have already made an application or complaint of a kind to which one of s.726 – 732 of the Act applied in relation to the dismissal. It follows that if an Applicant is prohibited by s.725 from making a general protections application under s.365 of the Act, the Commission has no jurisdiction to conduct a conference in accordance with s.368 of the Act.

[27] In Hazeldine v Wakerley; Giddings 1the Full Bench of the Commission considers the role of the Commission in a s.365 proceeding and a challenge under s.725 that a particular application is statute barred. I have set this out below:

“Hewitt v Topero

[4] In Hewitt v Topero Nominees Pty Ltd T/A Michaels Camera Video Digital 2 (Topero), a Full Bench of the Commission examined the content and structure of the relevant provisions of the Act in determining whether the Commission had the requisite jurisdiction to effectively dismiss a s.365 application on the basis of a finding that the applicant was not “dismissed” from their employment. The Full Bench reasoned, in part, as follows:

[23] The content and structure of the Subdivision tells against the proposition that s.365 is to be read as imposing jurisdictional pre-conditions beyond the mere filing of an application alleging dismissal in contravention of Part 3-1. The Subdivision does not contemplate that the Commission would engage in any sort of determinative process in dealing with a s.365 application…

…

[32] As s.595(3) makes clear, express authorisation under a provision of the Act is required before the Commission is empowered to arbitrate a dispute, with arbitration taken to include the making of any orders considered appropriate. There is no such express authorisation in the Subdivision. In these circumstances it is difficult to avoid the conclusion that a process of determining whether or not the appellant was dismissed would involve an exercise very akin to an arbitration and s.595(3) tells against any legislative intent that such a determination would be made by the Commission.

…

[35] A third contextual consideration is also relevant. Except in relation to an extension of time application, there is nothing in the Subdivision which contemplates the receipt of evidence by the Commission or the making of a determination requiring findings of fact…

…

[38] As we have noted, s.366 provides an exception to the general proposition that the Subdivision does not confer any determinative power upon the Commission. But the express power in s.366(2), to extend the time within which an application must be made, serves to reinforce the point that where the legislature intended to confer a determinative power it did so expressly. Absent an express provision there is no legislative intent to confer a determinative power…

[5] The ratio of Topero is found at [50], where the Full Bench held:

[50] For the reasons given we do not accept that the Commission needs to be satisfied that the applicant has been ‘dismissed’ from their employment before holding a s.368 conference. It is sufficient that the Commission has before it an application that on its face alleges a dismissal in contravention of Part 3-1.

[6] It is relevant to note that Topero was decided prior to the 1 January 2014 amendments to the Act, which provided for consent arbitration by the Commission of s.365 applications. At the time Topero was decided, the Commission had no power to arbitrate s.365 applications.

Application of Topero to s.725

[7] Section 725 of the Act is part of Subdivision B of Division 3 (Preventing Multiple Actions) of Part 6-1 of the Act. It 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.”

[8] The statutory purpose of section 725 of the Act is to limit an applicant to a single remedy. 3

[9] Sections 726 to 732 of the Act relate to a range of different types of applications and complaints. Relevantly for the purpose of Ms Hazledine’s case:

• section 727 of the Act applies if, inter alia, an applicant has made a general protections application to the Commission in relation to their dismissal; and

• section 732 of the Act applies if, inter alia, an applicant has made an application or complaint under another law in relation to their dismissal.

…

[11] A general protections application involving a dismissal must be made under s.365 of the Act. If such an application is made under s.365, the Commission must conduct a conference in accordance with s.368 of the Act. Put another way, the jurisdiction of the Commission to conduct a conference under s.368 of the Act is conditional on an application being made under s.365 of the Act.

[12] The expression “must not make an application” in s.725 of the Act imposes a prohibition on an applicant making a general protections application if they have already made an application or complaint of a kind to which one of ss.726-732 of the Act apply. 4 It follows that if an applicant is prohibited by s.725 from making a general protections application under s.365 of the Act, the Commission has no jurisdiction to conduct a conference in accordance with s.368 of the Act.

[13] Accordingly, the content, structure and purpose of Subdivision B of Division 3 of Part 6-1 of the Act, read together with ss.365 and 368, support a conclusion that the Commission is empowered by s.725 to determine whether the general protections application and the relevant application or complaint under ss.726 to 732 relate to the dismissal of the applicant.

[14] Further, we agree with the following analysis by Deputy President Gostencnik in Alex v Costco Wholesale Australia 5 (at [11]) in relation to the distinction between a jurisdictional challenge of the kind under consideration in Topero and a challenge under s.725 to the effect that a particular application is statute barred:

“…Here we are not concerned with whether any of the constituent elements of a cause of action under Part 3–1 of the Act are established. Rather we are concerned with whether an application under s. 365 of the Act may be made to the Commission given the prohibition in s. 725. That question goes to the jurisdiction of the Commission to deal with this application under s. 365. It does not go to any question that will determine any legal rights that the Applicant might have under Part 3 – 1 of the Act...”

[15] In addition, the task of determining whether an application or complaint of the kind referred to in ss.726 to 732 is “in relation to the dismissal” would, unlike the situation under consideration in Topero, not require the making of a determination requiring findings of fact. The issue under s.725 is one of the proper characterisation or classification of an application or complaint.

[16] Finally on this issue, our conclusion that the Commission is authorised and empowered to decide whether a general protections application is statute barred under s.725 of the Act is supported, to some extent, by a recent decision of a Full Bench of the Commission in Storey v Aristocrat Leisure Limited t/a Aristocrat Technologies Australia, 6 in which it was held (at [22]) that one of the grounds on which permission to appeal should be refused was because Mr Storey’s general protections dismissal dispute application was prohibited by s.725 of the Act.”

[28] I have applied the reasoning in that decision in coming to my conclusion. I have also taken in account the decision of Federal Magistrate Lucev in Birch v Wesco Electrics (1966) Pty Ltd 7 (Birch). At paragraphs [61]-[63] of that decision he states:

“Section 725 of the FW Act imposes a personal prohibition on a person making a second application or complaint of a kind to which one of ss 726-732 of the FW Act apply when there has already been made an application or complaint of a kind to which one other of ss726 and 732 of the FW Act apply. That meaning:

a) is plain on the face of the statute;

b) was intended by the Commonwealth Parliament, as confirmed by the extracts from the FW Bill Explanatory Memorandum set out above; and

c) is confirmed by relevant case law.

A dismissed person may therefore make:

a) a general protections court application; or

b) an application under a State or Territory anti-discrimination or equal opportunity law “in relation to” their dismissal, but not both.

Therefore, s 725 of the FW Act acts as a personal prohibition on Ms Birch making a second complaint of a kind to which s 732 of the FW Act applies, that is, from making the EO Complaint, provided that the EO Complaint is a matter “in relation to” Ms Birch’s dismissal. It is to that issue the Court now turns.” 8

[29] Lucev FM also considered the meaning of “in relation to” in Birch and observed that:

“The phrase “in relation to” does not extend to tenuous or remote relationships. Rather, a statutory test of relationship requires that the relationship “must lie within the bounds of relevance to the statutory purpose”.

The statutory purpose for which s 725 of the FW Act was enacted was to prevent an applicant, having filed an application or complaint of one type in relation to their dismissal, from filing an application or complaint of another type in relation to their dismissal. Applied to the present context, it is to prevent an applicant having filed a general protections court application in relation to their dismissal in this Court, from lodging an equal opportunity complaint in relation to their dismissal under a State equal opportunity law. The statutory purpose, put simply, is to limit an applicant to a single remedy.” 9 (Citations not included)

[30] Lucev FM went on to determine as follows:

“… In any event, the use of the phrase “in relation to” does not require exclusivity or predominance, but rather a relationship, other than a tenuous or remote relationship.

The relationship between the Application and the EO Complaint is far from tenuous or remote. Indeed, the relationship here is direct, both as to:

a) the general nature of the matters alleged, that is discrimination on the grounds of sex (including sexual harassment) and age; and

b) the supporting particulars and evidence to the EO Complaint and the Application.

The EO Complaint is therefore a matter “in relation to” Ms Birch’s dismissal. The EO Complaint is therefore a complaint of a kind referred to in s 725 of the FW Act, and, therefore, a complaint which Ms Birch is statutorily prohibited from making.” 10

[31] On that basis the issues which I need to determine are first whether Ms Suhr made her application after lodging her ADCQ complaint, and second whether her ADCQ complaint was made in relation to her dismissal.

[32] I have not had the benefit of submissions, or evidence from Ms Suhr. I have come to my conclusion based on the material before me which includes: Ms Suhr’s Form F8 General Protections Application Involving Dismissal, the Respondent’s Form F8A Employer Response to General Protections Application and the material filed by the Respondent on 26 April 2017.

[33] On the basis of the material before me it is apparent that:

• the ADCQ complaint filed on 3 January 2017 was made first;



• the ADCQ complaint is an application of the type referred to in s.732;



• the 72 paragraphs detailing the actions of the Respondent that led to the making of the application are identical in the ADCQ complaint; and



• the ADCQ complaint has not been withdrawn.

Conclusion

[34] The above analysis supports a finding that the relationship between Ms Suhr’s general protections application and the ADCQ complaint is direct and real, and not tenuous or remote. It can properly be expressed that the ADCQ application was an application ‘in relation to the dismissal’ as per s.725 of the Act. In those circumstances, I find that Ms Suhr’s ADCQ complaint in relation to her dismissal under s.141 of the Anti-Discrimination Act 1991 was made prior to lodging her application. Accordingly, the Respondent’s jurisdictional objection is upheld. As such, s.725 of the Act operates as a bar to Ms Suhr’s application being made because her ADCQ complaint had not been withdrawn nor failed for want of jurisdiction within the meaning of s.732. Ms Suhr’s application is therefore dismissed because it was prohibited by s.725 of the Act.

[35] An order 11 dismissing the application will be issued.

COMMISSIONER

 1   [2017] FWCFB 500.

 2   [2013] FWCFB 6321.

 3 Ibid at [75].

 4   Birch v Wesco Electrics (1966) Pty Ltd [2012] FMCA 5; (2012) 218 IR 67 at [61].

 5   [2014] FWC 1904.

 6   [2016] FWCFB 8735

 7 (2012) 218 IR 67.

 8   Ibid at 61-63.

 9 (2012) 218 IR 67 at 74-75.

 10   Ibid at 84-86.

 11   PR594537.

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