Bradley John Beasley v Australian National University t/a Australian National University
[2010] FWA 7308
•30 SEPTEMBER 2010
[2010] FWA 7308 |
|
DECISION |
Fair Work Act 2009
s 365 - Application to deal with contraventions involving dismissal
Bradley John Beasley
v
Australian National University t/a ANU
(C2010/4465)
DEPUTY PRESIDENT SAMS | SYDNEY, 30 SEPTEMBER 2010 |
Application to deal with contraventions involving dismissal - interlocutory application - whether application premature - statutory interpretation.
[1] On 1 June 2010, Mr Bradley John Beasley (‘the applicant’) was given notice of the termination of his employment as a Senior Employment Strategies Advisor at the Australian National University t/a ANU (‘the respondent’). While the reasons for the termination of the applicant’s employment are not necessarily relevant for the purposes of this decision, it is sufficient to observe that the respondent purportedly exercised its rights (to terminate the applicant’s employment) under cl 78(1)(f)(i) of the Australian National University Enterprise Agreement 2005 - 2009 (‘the Agreement’), after the applicant’s failure to attend a directed medical examination.
[2] There would appear to be no dispute that the applicant was employed under the terms of the Agreement and that cl 78(1)(f)(i) provides for six months notice of termination where an employee fails to attend a directed medical examination and the employer concludes that the employee is not fit to carry out his/her usual duties. Thus, the applicant, although not actually working at the present time, will no longer be employed by the respondent after 1 December 2010.
[3] The preliminary issue for consideration by Fair Work Australia (FWA) arises as a consequence of the applicant filing an application on 30 July 2010 for FWA to deal with a General Protections Dispute under s 365 of the Fair Work Act 2009 (‘the Act’). When I listed the matter for a conference on 17 August 2010, pursuant to s 368 of the Act, the respondent’s primary position was that the applicant’s claim was premature, in that for FWA to have jurisdiction to consider an application under s 365 of the Act, the person must have already been dismissed. As the factual position was that the applicant had only been given notice of his dismissal and he continues to be employed by the respondent, no s 365 application can be validly before FWA until the person has actually been dismissed. The applicant disputed this conclusion.
[4] Before setting out the respective written submissions of the parties, I would make the following observations. I am unaware of any decision, at single member or Full Bench level, which has specifically addressed the question I have been asked to determine in this case. Nevertheless, it seems tolerably clear that the task of the Tribunal is to determine the meaning of the words in s 365 and s 366 of the Act. This will obviously be achieved by applying the usual principles of statutory construction. In this respect, I refer to the judgment of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 to 382, where McHugh, Gummow, Kirby and Hayne JJ said:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".
I also consider apposite to this case is what Gibbs CJ said in Cooper Brookes (Wollongoing) Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 304 to 305:
It is an elementary and fundamental principle that the object of the court, in interpreting a statute, "is to see what is the intention expressed by the words used": River Wear Commissioners v. Adamson (1877) 2 App Cas 743, at p 763. It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention. And it is not unduly pedantic to begin with the assumption that words mean what they say: cf. Cody v. J. H. Nelson Pty. Ltd. [1947] HCA 17; (1947) 74 CLR 629, at p 648. Of course, no part of a statute can be considered in isolation from its context - the whole must be considered. If, when the section in question is read as part of the whole instrument, its meaning is clear and unambiguous, generally speaking "nothing remains but to give effect to the generally speaking "nothing remains but to give effect to the unqualified, words": Metropolitan Gas Co. v. Federated Gas Employees' Industrial Union [1925] HCA 5; (1925) 35 CLR 449, at p 455 There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case: see per Lord Reid in Connaught Fur Trimmings Ltd. v. Cramas Properties Ltd. (1965) 1 WLR 892, at p 899; (1965) 2 ALL ER 382, at p 386 . Examples of that sort of case may be found in Maxwell on the Interpretation of Statutes, 12th ed., (1969), at p. 228 et seq., and Craies on Statute Law, 7th ed., (1971), at p. 520 et seq. However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of unambiguous provisions is that "it may degrade into mere judicial criticism of the propriety of the acts of the Legislature", as Lord Moulton said in Vacher & Sons Ltd. v. London Society of Compositors [1912] UKHL 3; [1912] UKHL 3; (1913) AC 107, at p 130 ; it may lead judges to put their own ideas of justice or social policy in place of the words of the statute. On the other hand, if two constructions are open, the court will obviously prefer that which will avoid what it considers to be inconvenience or injustice. Since language, read in its context, very often proves to be ambiguous, this last mentioned rule is one that not infrequently falls to be applied.
In addition, I refer to the decision of the Full Bench of the Australian Industrial Relations Commission in Keith Miller & Sons Building Pty Ltd v Flemming (1999) 91 IR 399 at 406 to 407, where it was said:
We accept what has been said in previous Commission decisions regarding the scope of the word “remuneration”. But that acceptance does not determine the matter before us. It is not sufficient to consider the meaning of “remuneration” in abstract, it must be considered in the context in which it appears.
The meaning of a word or a phrase is to be derived from its context. As Stamp J put it in Bourne v Norwich Crematorium Ltd [1967] 1 WLR 691 at 696:
“Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided case, and then put back again into the sentence with the meaning which one has assigned to them as separate words, so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language.”
A word of wide possible connotation may be limited by the context in which it appears. (As Barwick CJ said in Taylor v Public Service Board (1976) 137 CLR 208: “Their meaning and operation must be read with and accommodated to the rest of the section”: see also Ross v The Queen (1979) 141 CLR 432; Prior v Sherwood (1906) 3 CLR 1054 and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Toohey and Gaudron JJ.).
[5] I also adopt the notion recently expressed by the Full Bench in Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Janette Smithers [2010] FWA 3701:
The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s 394(3) of the FW Act.
[6] The relevant sections of the Act in dispute are as follows:
365 Application for FWA to deal with a dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to FWA for FWA to deal with the dispute.
366 Time for application
(1) An application under section 365 must be made:
(a) within 60 days after the dismissal took effect; 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:
(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.
SUBMISSIONS
For the applicant
[7] Mr A Barwick, in relying on the express language of the meaning of dismissal at s 386 of the Act, submitted that the applicant’s employment was terminated at the employer’s initiative on 1 June 2010, because it was on that date the applicant’s employment was terminated, even though the dismissal has not yet ‘taken effect’. FWA has jurisdiction to deal with the matter because the applicant ‘has been dismissed’.
[8] Mr Barwick put that s 366 of the Act is also helpful as it only defines the last date for filing an application by reference to the date the dismissal takes effect. However, it does not prescribe the first date upon which an application may be filed. He relied on the ordinary dictionary meaning of the words ‘within’ and ‘after’ and said that these words mean an application must be filed ‘inside’ of 60 days after the dismissal took effect and ‘after’ means the last day for filing, not the first date for filing. Mr Barwick said the legislature could have made the alternative intention clear: See Beahan v Bush Boake Allen Australia Ltd (1997) 93 IR 1.
[9] Mr Barwick referred to the principles behind legislative time limitations for initiating legal proceedings: See Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, and said that the respondent’s interpretation would run contrary to accepted public policy rationales behind limitation periods.
[10] Mr Barwick put that s 365 of the Act is a ‘gate way’ provision so as to allow an applicant access to a remedy to be granted sooner rather than later. This was consistent with the objects of the Act (section 3(e)) to provide ‘accessible and effective procedures to resolve grievances and disputes’. He said that delaying compulsory conciliation by six months would do nothing to assist the resolution of this dispute.
For the respondent
[11] Mr M Will submitted that all that occurred on 1 June 2010 was that the applicant was given notice of his proposed termination. He remains an employee of the respondent until the notice takes effect. Had he not been on extended leave, he would be required to attend work and perform his usual duties: See Birrell v Australian National Airlines Commission (1984) 5 FCR 447 (‘Birrell’).
[12] Mr Will said that the words ‘a person has been dismissed’, indicates an event having already taken place. The legislature did not use the words ‘is dismissed’ or ‘issued a notice of dismissal’.
[13] As to s 366 of the Act, Mr Will said that the applicant’s interpretation of the clause strains the meaning of the words. Neither word ‘within’ nor ‘after’ qualifies the first date for filing. The starting date for the 60 day limit is the day after the dismissal took effect and ends 60 days after that day. The applicant’s interpretation would mean that the date for filing could commence before (within) 60 days of the dismissal taking effect or 60 days after. That could not possibly have been the intention of the legislature.
[14] Mr Will further submitted that to permit applications under s 365 of the Act before a dismissal takes effect would be to permit, in effect, interlocutory injunctive relief before rights and obligations and alleged losses had crystallised and before final payments had been calculated and paid. If this had been the legislative intent it would have been provided for. Moreover, the fact that the applicant had six months notice of termination is irrelevant. Dispute resolution is not hampered and there was nothing to prevent an applicant preparing and filing an application on the first day after the dismissal took effect.
CONCLUSION
[15] In my view, the interpretation of the provisions in s 365 and s 366 of the Act, for the purposes of this application, is relatively straightforward. I cannot see how it is possible, given the principles of statutory construction earlier referred to and applying the ordinary English meaning of the words ‘has been dismissed’, to construe the words as having a prospective operation. The words ‘has been’ are in the past tense and can only mean that an event has already occurred or taken place, not that it may, is likely to or will take place. In the present context, the event is the actual dismissal of the employee, not the giving of the notice of dismissal, whether it be six months, three months, one week or in the case of summary dismissal, no notice at all.
[16] In my opinion, and again applying the principles of statutory construction, the disputed words must be viewed in their context and in light of the intent of the clause overall: See KeithMiller & Sons Building Pty Ltd v Flemming. The act of dismissal constitutes the severance of the employment relationship. Given that the applicant continues to be employed by the respondent (notwithstanding he is not at work) and presumably continues to accrue certain rights as a result of that employment, it cannot be said that the employment relationship has been severed or has been brought to an end at the employer’s initiative. All that has occurred, in the legal sense, is the giving of notice of termination according to the express terms of the industrial instrument covering both parties. The notions of ‘notice’ and ‘dismissal’ are entirely different legal and industrial concepts. The fact that a notice of termination can be withdrawn by mutual consent (see ‘Birrell’) fortifies the conclusion that the employment relationship remains on foot and ongoing until the date of the notice gives actual effect to the dismissal.
[17] Mr Barwick’s submission concerning the meaning of the words ‘within’ and ‘after’ was, with respect, innovative, but misconceived. His interpretation strains the meaning of the words beyond credulity. In my view, the meaning contended for could never have been the intention of the legislature. In addition, I can find no statutory construction basis nor any legal authority, to permit a conclusion that the setting of legislative time limits for the initiation of legal proceedings, contemplate periods of time before the foundation for the legal action has been established. The authority in Brisbane South Regional Health Authority v Taylor deals with principles to be applied by Courts for the grant of extensions of time to prescribed time limits for initiating action. Accordingly, the authority is not applicable to the present circumstance, where the applicant’s claim has been lodged prematurely.
[18] Nevertheless, the fact that the applicant has been given six months notice and has plainly indicated that he intends to challenge his dismissal, does not preclude the parties from either separately, or jointly, initiating negotiations in order to resolve their differences so as to avoid possible costly and time consuming litigation.
[19] However, for the reasons I have herein expressed, there is no legal obligation on the parties, under Ch 3 Pt 3-1 Div 8 to engage in formal conciliation until the express requirements of s 365 and s 366 of the Act have been complied with. That is, in the absence of any revocation of the notice to terminate the applicant’s employment on 1 December 2010, the applicant has 60 days after 1 December 2010 to lodge an application for FWA to deal with alleged contraventions of the Act involving his dismissal. Accordingly, the present application must be dismissed for want of jurisdiction, pursuant to s 587(1)(a) of the Act. An order to that effect is issued separately to this decision.
DEPUTY PRESIDENT
Appearances:
Mr A Barwick for the applicant
Mr M Will for the respondent
Hearing details:
Conference - 17 August 2010
Final written submissions:
24 August 2010; 31 August 2010
Printed by authority of the Commonwealth Government Printer
<Price code C, PR501857>