Anne Kruk v Corval Pty Ltd
[2017] FWC 5870
•16 NOVEMBER 2017
| [2017] FWC 5870 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Anne Kruk
v
Corval Pty Ltd; Conga Foods Pty Ltd
(U2017/8868)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 16 NOVEMBER 2017 |
Application for an unfair dismissal remedy.
[1] On 16 August 2017 Mrs Anne Kruk (the applicant) filed an application for an unfair dismissal remedy. Her application stated that she was notified of her dismissal on 26 July 2017, and that it took effect on 24 July 2017. The letter accompanying the application stated that the application was incomplete due to supporting information not being available, and that the necessary supporting documentation would be forwarded as an amendment once received by ‘this office from the applicant’, this office being that of Mrs Kruk’s representative.
[2] On 12 September 2017 a second application was filed. It stated that the earlier application was filed to meet the 21 day requirement and was incomplete, due to a lack of supporting documentation and the applicant’s poor health.
[3] On 21 September 2017 Corval Pty Ltd and Conga Foods Pty Ltd (the respondent), filed an objection stating that the application was out of time.
[4] On 26 October 2017 the matter was listed for telephone hearing. The applicant was granted permission to appear by paid agent, pursuant to s.596 of the Fair Work Act 2009 (the Act), in order to enable efficient conduct of proceedings, given the technicalities. Both the applicant and the respondent agreed that the matter would be determined on the papers without a further hearing, in the case of the respondent, by email dated 27 October 2017.
[5] On 2 November 2017 I provided the opportunity to the parties to specifically address the application of s.586 of the Act, which provides:
“586 Correcting and amending applications and documents etc.
The FWC may:
(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or
(b) waive an irregularity in the form or manner in which an application is made to the FWC.”
[6] Written submissions were received from the applicant and respondent and I have taken account of those written submissions.
[7] The respondent submitted that an amendment should not be granted pursuant to s.586 for a range of reasons including that the applicant’s representative made several attempts to contact the applicant without success, and then decided to lodge the application to meet the 21 day time period. The application was lodged without the appropriate information being supplied by the applicant within the 21 day time period, and contained only the most basic and generic information and was deficient and prejudicial. It submitted that what was being sought was more than correction of an error but a fresh application outside the 21 day time period, and one without reasonable explanation for the delay. It submitted that the applicant did not give her representative appropriate instructions and information until after the 21 day time period, which would make a farce of the time period. The respondent also raised the issue of differences between the various explanations given by the applicant.
Authorities
[8] In Visscher v BHP 1, a Full Bench of the then Australian Industrial Relations Commission considered the terms of s.111(1)(p) and (q) as it then was:
“The extent of the powers conferred by s.111(1) is not defined. It is extremely wide. In re Coldham; ex p. Australian Building Construction Employees and Builders Labourers Federation Gibbs CJ, Wilson and Dawson JJ were concerned with, amongst other powers, those in s.41(1)(k) and (l) of the Conciliation and Arbitration Act 1904. Those two subparagraphs were in very similar terms to s.111(1)(p) and (q) of the Act. Their honours said:
‘This Court of course recognizes that the Commission is entitled to determine its own practice, consistently with the provisions of the law and the requirements of natural justice. But the decision in Amalgamated Television Services Pty. Ltd. v. Professional Radio Employees’ Institute of Australasia did not merely lay down a practice - it depended on the true construction of the Act. In our opinion that decision proceeded on too narrow a view of the effect of the Act. Section 41 applies “in relation to” “any ... proceedings before the Commission”. The word “proceedings” has frequently been said to have a wide and general application, and it would certainly include both an appeal and an application for an amendment or an extension of time. If a notice of appeal has been given, and, when the matter comes before a Full Bench, it appears that the notice is so defective in substance that it fails to institute the desired appeal, an application for an order allowing an amendment, or correcting the defect, or extending the time for lodging the notice of appeal, either forms part of, or in itself constitutes, proceedings before the Commission in which the powers given by s.41 to make an order of those kinds can be exercised, unless some other section of the Act indicates that the provisions of s.41 are inapplicable to the particular proceedings in question.’
It is particularly relevant to the argument advanced by Mr Visscher that the Court would permit the use of the power in circumstances where a notice is so defective that it fails to institute the desired proceeding. In that case it is still open to the Commission to use the power. Raffaelli C’s action in correcting the record is well within the scope of s.111(p) and (q) as discussed in Coldham.”
[9] In Maher v Mulgowie Fresh Pty Ltd 2, Collier J granted an application to amend an application filed pursuant to s.773 of the Act where the applicant was entitled to file an application pursuant to s.365 and was therefore prevented by s.772 from making an application pursuant to s.773. Collier J considered the relevant Federal Court Rules relating to amending documents, and said:
“In this case I see no reason why the Court should not grant leave to Mr Maher to amend his substantive application on the terms he has sought. I form this view because:
• The application to amend the application comes very early in this litigation.
• There are no case management issues which might persuade the Court to refuse the application for leave to amend, as contemplated in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.
• I note Ms Brace’s submissions concerning the absence of common law or statutory authority for an order to amend the substantive application as sought by Mr Maher. However I consider that O 13 r 2(7) of the Federal Court Rules confers on this Court power of sufficient breadth to do so.
• No prejudice has been demonstrated by Mulgowie should the Court grant Mr Maher leave to amend his substantive application. So, for example:
• Mulgowie has not identified any costs incurred by it which would be thrown away should leave be granted to Mr Maher to amend his application;
• It appears that no new factual or legal issues would be raised by the amendment to the substantive application, other than the substitution of the statutory basis of the application;
• Mulgowie has been on notice of Mr Maher’s intentions with respect to seeking leave to amend the substantive application since Mr Tayler’s letter of 2 March 2010.
• I note Mr Maher’s claim that he was not legally represented before Fair Work Australia, and fell into error in respect of the legislative basis of his application. I note further that this error was not drawn to his attention by Fair Work Australia, which issued a certificate pursuant to s 777.
• It is common ground that Mr Maher is out of time to commence a fresh application before Fair Work Australia. He would be significantly prejudiced should the Court refuse him leave to amend his existing substantive application.
• I note that the objectives of the Act include the provision of workplace relations laws that are fair to working Australians (s 3(a)) and which enable fairness and representation at work and the prevention of discrimination (s 3(e)). In my view, and in the apparent absence of prejudice to Mulgowie, it would be inconsistent with the Acts’ objectives of fairness in the workplace to refuse an employee an opportunity to pursue a grievance in Court simply because he made a legal error in formulating his original complaint.”
[10] In Peter Mihajlovic v Lifeline Macarthur 3, a Full Bench of the Commission considered s.586 of the Act:
“[35] There is a long history in predecessor statutes to the Act of provisions which are equivalent or at least similar to s.586. Section 41(1)(l) and (k) of the Conciliation and Arbitration Act 1904 (Cth) empowered the Conciliation and Arbitration Commission to “allow the amendment, on such terms as it thinks fit, of any proceedings” and to “correct, amend or waive any error, defect or irregularity, whether in substance or in form”. In Re Coldham; Ex parte BLF the High Court gave these provisions, together with the power to “extend any prescribed time” in s.41(1)(m), a wide field of operation so as to give effect to the statutory intention that proceedings before the Commission be directed to the merits and that technicalities and legal forms should not be regarded. These provisions were reproduced in s.111(1)(p), (q) and (r) respectively of the Industrial Relations Act 1988, and were retained in that Act upon its metamorphosis into the Workplace Relations Act 1996. The 2006 Work Choices manifestation of the Workplace Relations Act removed the general power to extend time, but retained the other powers in s.111(1)(l) and (m). The power to waive errors, defects or irregularities was used in a wide variety of circumstances as to both procedural and substantive matters: see, for example, Re Union of Christmas Island Workers; Re The Association of Professional Engineers, Scientists and Managers, Australia; Re Perth Bus Certified Agreement; Caruana v STA Pty Ltd; Boom Logistics/Employee Naval Base Industrial Agreement 2004/2005 and CPSU v Port Adelaide Training and Development Centre Incorporated t/as PATDC Employment and Training.
[36] Section 586(b) may be narrower than the previous provisions referred to, in that the waiver power is confined to matters of “form or manner” rather than “substance or ... form”. There is surprisingly little authority, outside the State constitutional context, as to what types of matters are encompassed by “form or manner” or like expressions such as “manner and form”. However, in O’Connor v Kinniburgh the New Zealand Supreme Court held that a statutory power to make regulations concerning the “form and manner” in which a thing is to be done may include requirements as to when the thing may be done.
[37] In Tomlinson v Leveda Inc the Full Commission of the Industrial Relations Commission of South Australia observed that provisions of the same type as s.586(b) are “directed towards ameliorating the effect of a variance or failure to comply with a procedure specifically stated in the Act or Rules so that the Commission can proceed to deal with the real dispute between the parties without the limitations of procedural defects”.”
[11] In Peter Ioannou v Northern Belting Services Pty Ltd 4,a Full Bench of the Commission considered an application to convert an unfair dismissal application into a general protections application:
“[14] In Mihajlovic, the Full Bench decided that the premature filing of an unfair dismissal application constituted an irregularity in the manner in which the application was made and was capable of waiver under s.586(b) of the Act.
[15] The question as to whether s.586 allows the amendment of a s.394 application so that it becomes a s.365 application has not previously been considered by a Full Bench of the Commission, although there has been at least one decision of a single member of the Commission allowing such an amendment. In other cases, applicants have decided to withdraw their unfair dismissal applications and to make fresh applications under s.365.
[16] Where a new application is made under s.365, the application must be accompanied by the prescribed application fee (s.367 and reg.3.02 of the Fair Work Commission Regulations 2009) and must be made within 21 days after the dismissal took effect or within such further period as the Commission allows (s.366(1)). If an extension of time is sought, s.366(2) provides that the Commission may allow a further period in which to make the application if it is satisfied that:
‘... there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.’
[17] In our view, the power in s.586 of the Act cannot be used to allow an amendment to an application that fundamentally changes the kind of application that was originally made. The amendment sought by the applicant requires a fundamental change to the kind of application originally made, by transforming an unfair dismissal application into an application under s.365, and might allow this to be done without the applicant meeting the procedural and other requirements set out in the Act for making of a general protections application.
[18] An unfair dismissal application under s.394 is fundamentally different to a general protections application under s.365, even though both may arise from the same set of circumstances involving the dismissal of an employee.
[19] The legislative scheme for an unfair dismissal application is quite distinct from that pertaining to a general protections application. The matters for consideration by the Commission in determining whether there has been an unfair dismissal are specified in the Act as well as the remedies and relief available and the matters relevant to the determination of such remedies. The general protections provisions of the Act, in Chapter 3, Part 3-1 include a range of different protections (including in relation to workplace rights, industrial activities and discrimination) which are defined in the Act and which do not involve a broader assessment of “unfairness” or “harshness” against statutory criteria.
[20] The general protections are civil remedy provisions the contravention of which can lead to the imposition of financial penalties and a reverse onus of proof applies in relation to the reasons for taking adverse action. The determination of general protections applications by a court involves the exercise of judicial power whereas the Commission exercises arbitral power in respect of s.394 applications. The remedies available are also different. A compensation order made by a court is not capped and is not contingent on reinstatement being inappropriate. Injunctive relief is also available. Further the discretion to allow a further period within which to make a s.365 application is exercisable subject to similar but not the same considerations.
[21] Unlike in the courts, there is no general ability to apply to the Commission for relief. Applications can only be made to the Commission under specific provisions of the Act and there are jurisdictional, procedural and other requirements under the Act, the Regulations and the Rules which apply to different applications. Section 585 of the Act requires that an application to the Commission must be in accordance with the procedural rules relating to applications of that kind.
[22] Having regard to these considerations, we have serious reservations whether the power in s.586 of the Act can be relied upon to convert an unfair dismissal application into a general protections application. Section 586 does not provide a source of power to revoke or set aside an application. Neither does it, in our view, enable the Commission to “correct” or “amend” an application made under one type of statutory provision so that it becomes an application under a fundamentally different provision.
[23] The other reason for our conclusion relates to the provisions of Division 3, Subdivision B of Part 6-1 (Multiple Actions) of the Act. These provisions deal with cases involving a dismissal where more than one cause of action might be available for the same conduct or circumstances.
[24] We consider that the use of any power under s.586(a) of the Act to allow an unfair dismissal application to be converted into a general protections application is not permissible having regard to the multiple actions provisions of the Act. The exercise of the power under s.586 for the benefit of the applicant would achieve for the applicant indirectly that which is directly prohibited by the multiple actions provisions.”
Decision
[12] Firstly, there is in my view jurisdiction to grant the application, having regard to Visscher, Maher, Ioannou and other decisions. Section 586 is in almost identical terms to the old s.111(1)(p) and (q) of the Workplace Relations Act 1996 considered in Visscher. This is not a case such as was considered in Ioannou, in which an unfair dismissal application was sought to be converted into a general protections application. It is an unfair dismissal application which is sought to be amended into one providing much greater specificity of content.
[13] Secondly, the question arises of whether or not I should do so as a matter of discretion. There are no case management issues which might persuade me to refuse the application for leave to amend, such as arose in Aon Risk Services Australia Limited v Australian National University 5, where the High Court concluded that case management objectives of timely and cost-effective resolution of disputes should be followed because of the lengthy delay and the fact that the employer would face a completely new case. There is authority for the proposition that if the amendment fundamentally alters the nature of the application I should not do so: e.g. Mark Haydon v Coles Supermarkets Australia Pty Ltd6, where the amendment was not a fundamental alteration and other decisions where it was, such as Ioannou.
[14] The present matter does not involve a fundamental alteration in the nature of the application. It is the same matter but more specific details of the alleged unfair dismissal are provided in the amended document. The amendment is sought at an early stage in the proceedings, and no prejudice to the employer or additional costs appear to be relevant.
[15] On the other hand, if the matter is treated as an out of time application, there would need to be exceptional circumstances justifying an extension of time (s.366). There would be significant prejudice to the applicant.
[16] According to the applicant’s submissions, she believed that she had been unfairly dismissed 7, and the applicant advised her representative that she would forward any supporting documentation to allow the application to be filed in accordance with s.394 of the Act8. The applicant’s medical issues appear to explain why this documentation was not forwarded as intended9, and such medical issues are documented and impeded communication by her. I am satisfied that the applicant intended to make an unfair dismissal application and that her representative acted in accordance with her intentions. I am satisfied that the application made in time is a valid application, and that the amendment should be made in the form sought by the applicant.
[17] The respondent quite properly makes the point that it is important not to render the 21 day time period a ‘farce’, as it termed it. The 21 day time period must be applied, and the Commission must resist any attempts to resort to devices to avoid it. In this case, the amendment is not a device but an understandable attempt to take account of the applicant’s medical condition. The applicant has a responsibility in future to comply with procedural directions, to attend hearings as scheduled, and to put her case. If she does not do this then her ability to pursue such proceedings will come into question.
[18] In the alternative, I am satisfied that I should extend time and allow the second application. There is a satisfactory explanation for the delay, namely the medical condition of the applicant and other circumstances set out above (s.394(3)(a)). The applicant was aware of her dismissal on 26 July 2017 (s.394(3)(b)), and took steps to contest the dismissal by contacting a representative, although it is not clear that she told the employer she contested the dismissal (s.394(3)(c)). There is no prejudice to the employer beyond the need to contest the application (s.394(3)(d)). The merits will need to be the subject of evidence and submissions, and a hearing (s.394(3)(e)). There is no issue as to fairness between the applicant and others (s.394(3)(f)). I am satisfied that there are exceptional circumstances and would order an extension of time.
DEPUTY PRESIDENT
Hearing details:
2017.
Melbourne:
October 26.
Final written submissions:
Applicant: 6 November 2017.
Respondent: 4 November 2017.
1 PR937708, [19].
2 Collier J, Federal Court of Australia, [2010] FCA 439, 22.
3 [2014] FWCFB 1070.
4 [2014] FWCFB 6660.
5 (2009) 239 CLR 175.
6 [2008] AIRC 403.
7 Applicant’s submissions, [7].
8 Ibid, [10].
9 Ibid, [11], [27]; Letter dated 6 November 2017, 2.
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