Annette Woolley v May Shaw Health Centre Inc

[2016] FWC 7604

[2016] FWC 7604

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Annette Woolley
v
May Shaw Health Centre Inc
(U2016/10327)

COMMISSIONER LEE MELBOURNE, 28 OCTOBER 2016

Application for relief from unfair dismissal – application dismissed.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 29 September 2016. This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Ms Annette Woolley (the Applicant) claims that she was unfairly dismissed from her employment with May Shaw Health Centre Inc (the Respondent).

[2] The application was lodged by the Applicant on 17 August 2016. On 31 August 2016 the Respondent filed a Form F3 – Employer Response to Unfair Dismissal Application which raised a jurisdictional objection to the application on the following grounds:

• The Applicant made a complaint to Equal Opportunity Tasmania under the Anti-Discrimination Act 1988 (TAS) (the discrimination complaint) before she commenced an unfair dismissal application under s.394 (1) of the Fair Work Act 2009 (Cth).



• The discrimination complaint is in relation to the Applicant’s dismissal, amongst other things.



• The Applicant has not withdrawn the discrimination complaint.



• A complaint to Equal Opportunity Tasmania under the Anti-Discrimination Act 1988 (TAS) is an ‘application or complaint under another law’ for the purposes of s.732(2)(b) of the Fair Work Act 2009 (Cth).



• In consequence of the above and by reason of sections 725 and 729 of the Fair Work Act 2009 (Cth), the Applicant was not permitted to make her unfair dismissal application under s.394 (1) of the Fair Work Act 2009 (Cth).

[3] I listed the matter for Jurisdiction Conference/Hearing by telephone on at 9.30am on 29 September 2016 in order to deal with the jurisdictional objection raised by the Respondent. Ms Woolley appeared on her own behalf and Mr Joel Zyngier was granted permission to appear on behalf of the Respondent as I was satisfied there was sufficient complexity in the matter such that granting permission would enable the matter to be dealt with more efficiently. Ms Rene Wise gave evidence on behalf of the Respondent. The Applicant gave evidence on her own behalf.

[4] Having considered the written submissions and having heard from the parties I determined that the application should be dismissed as it has no reasonable prospects of success. My reasons for making that finding are broadly consistent with the Respondent’s Jurisdictional Objection Submissions dated 23 September 2016. It is apparent from the evidence provided by Ms Wise that while the Applicant made a complaint to Equal Opportunity Tasmania prior to the termination of her employment, it is evident that she has added the fact of her employment termination to her complaint to Equal Opportunity Tasmania, and that is reflected in the file note recorded by Mr Jason Wright of Equal Opportunity Tasmania in attachment RW4 to the Witness Statement of Rene Wise. 1 It is also evident in the email that was subsequently sent from Ms Woolley to Mr Wright of Equal Opportunity Tasmania2 which sets out as requested by Equal Opportunity Tasmania, the circumstances that Ms Woolley attests to in terms of the circumstances around the termination of employment. Also relevant is the assessment decision and reasons for decision of the Equal Opportunity Tasmania3 where Robin Banks the Anti-Discrimination Commissioner, determined the following:

“The following alleged conduct discloses possible breaches of the Act and will be the focus of the investigation into the complaint.

1. Renee Wise refusing Ms Woolley’s request to do a Certificate III course during the hours she was currently working or during weekends or school holidays:

2. May Shaw Health Centre stood Ms Woolley down from work.

3. May Shaw Health Centre terminated Ms Woolley’s employment.

As noted above, the allegations disclose possible indirect discrimination and offensive, humiliating, intimidating, insulting or ridiculing conduct of Annette Woolley on the basis of family responsibilities in connection with employment and education and training.”

[5] In relation to the dismissal there is no doubt, that this complaint was originally made about matters not related to the dismissal, because, when the complaint was made no dismissal had occurred. However, following her dismissal, the Applicant sought to have the dismissal included as part of the complaint. I agree with the approach that Deputy President Kovacic took in Karren Hazledine v Kirk Wakerley and Ben Giddings 4where he applied a decision in Birch v Wesco Electrics (1966) Pty Ltd5referred to in the Respondent’s submissions where Federal Magistrate Lucev found:

“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.” 6

[6] In my view the evidence is patently clear that the termination of employment is part of the complaint that is made to Equal Opportunity Tasmania. In that context within the meaning of the Act, specifically s.725, s.729 and s.732 (2) of the Act which provides as follows:

“(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.”

[7] It is clear that the Applicant made the application or complaint under another law before making the unfair dismissal application. For those purposes I am satisfied that the complaint was made on 1 August 2016 and that is evidenced in file note recorded by Mr Jason Wright of Equal Opportunity Tasmania in attachment RW4 to the Witness Statement of Rene Wise, 7 whereas the application to the Commission was made on 17 August 2016. I agree that the fact that the complaint was added to the original complaint on 1 August 2016 does not change the fact that for the purposes of this part of the legislation it is still an application or complaint in relation to the dismissal. The fact that it was joined at a later time does not make it any less so, and I agree with the Respondent’s submission that:

“Otherwise a situation would arise where an employee anticipating or foreseeing his/ her dismissal could make an application or complaint under another law (i.e. other than the Fair Work Act 2009), then after being dismissed, add the fact of the dismissal on the grounds of application or complaint, and then subsequently be permitted to make an application of the kind referred to in s.725

The respondent submits such an outcome would be entirely inconsistent with the intention of the regime established by Part 6-1, Division 3, Subdivision B.” 8

[8] Further, I agree and it is apparent that the Applicant has submitted multiple actions and I agree with the submissions of the Respondent that the multiple actions commenced by the Applicant in relation to the dismissal are the very mischief that s.725 of the Act is intended to prevent and precisely the kind of double dipping described in Item 2707 of the Fair Work Bill Explanatory Memorandum, which that section of the Act is designed to prevent.

[9] Having considered the evidence in this matter, including the evidence of the Applicant, I am satisfied that the Applicant did not understand the relationship between her raising the fact of her employment termination with the Equal Opportunity Tasmania and making an application for unfair dismissal remedy with the Fair Work Commission. Irrespective, it is evident that the application with Equal Opportunity Tasmania has not been withdrawn and it is evident that Equal Opportunity Tasmania have outlined in the assessment decision and reasons for decision 9 that they are proceeding to investigate the matter including the termination of employment. It is evident in that context that the Applicant has a potential remedy for the dismissal through Equal Opportunity Tasmania, and it is evident that that was made before this application was made with the Fair Work Commission.

[10] In conclusion I agree with the submissions of the Respondent that the Applicant’s discrimination complaint is an application or complaint under another law. I agree that the Applicant made that discrimination complaint before making an unfair dismissal application. It is clear on the evidence the Applicant’s discrimination complaint is in relation to the dismissal, for the reasons I have outlined, and it is clear on the Applicant’s own evidence that the complaint has not been withdrawn or failed for want of jurisdiction.

[11] It is for these reasons, having regard to the operation of s.725, s.727 and s.732 of the Act that the application is not made in accordance with the Act and therefore has no reasonable prospects of success. The application is therefore dismissed.

[12] An order PR586875 will be issued concurrently with these reasons for decision.

COMMISSIONER

Appearances:

A Woolley on her own behalf for the Applicant

J Zyngier for the Respondent

Hearing details:

2015.

Melbourne (by Telephone):

29 September 2016.

Final written submissions:

23 September 2016.

 1   Exhibit R1, Statement of Rene Wise, filed 23 September 2016, RW4.

 2   Exhibit R1, Statement of Rene Wise, filed 23 September 2016, RW5.

 3   Exhibit R1, Statement of Rene Wise, filed 23 September 2016, RW2.

 4   [2016] FWC 4989

 5 (2012) 218 IR 67

 6 (2012) 218 IR 67 at 84; citing Woodside Energy Ltd v Federal Commissioner of Taxation (2006) 155 FCR 357 at [57] per French J; Australian Securities and Investments Commission v Citrofresh International Ltd (2007) 164 FCR 333 at [66] per Goldberg J

 7   Exhibit R1, Statement of Rene Wise, filed 23 September 2016, RW4.

 8  Respondent’s Jurisdictional Objection Submissions filed 23 September 2016 [5.5(b)(iii)-(iv)]

 9   Exhibit R1, Statement of Rene Wise, filed 23 September 2016, RW2.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR586702>