Bridges v Norling Trading as Itravel Forster
[2016] FCCA 212
•9 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRIDGES v NORLING TRADING AS ITRAVEL FORSTER | [2016] FCCA 212 |
| Catchwords: JUDICIAL REVIEW – Whether certificate issued by FWC purportedly pursuant to s.368(3)(a) of the FW Act was validly issued – whether validity of certificate issued purportedly pursuant to s.368(3)(a) of the FW Act depends on the person who claims to have been dismissed applying to the FWC under s.365 of the FW Act within 21 days after the dismissal took effect as required by s.366(1)(a) of the FW Act – whether the applicant was dismissed from her employment – whether such dismissal took effect more than 21 days before the applicant applied to the FWC. INDUSTRIAL LAW – Contract of employment – whether employer repudiated contract of employment – whether employee accepted the repudiation. |
| Legislation: Fair Work Act 2009, ss.30L, 30R(1), 342, 342(1), 365, 366, 366(1), 366(1)(a), 366(1)(b), 366(2), 368, 368(1), 368(3), 368(3)(a), 368(3)(b), 368(4), 369, 370, 370(a)(i), 370(a)(ii), 372, 544, 566, 595(2) |
| Advertiser Newspapers Pty Ltd v Industrial Relations Commission (SA) (1999) 74 SASR 240 Director of Public Prosecutions v Head [1959] AC 83 Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721 Imer (No. 145) Pty Ltd v The Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26 In re the Judiciary Act 1903-1920 & In re the Navigation Act 1912-1920 [1921] HCA 20; (1921) 29 CLR 257 Stack v Michael Hill Jeweller (Australia) Pty Ltd [2012] FMCA 259 |
| Applicant: | ELIZABETH ANNE BRIDGES |
| Respondent: | KARENNE ELIZABETH NORLING TRADING AS ITRAVEL FORSTER |
| File Number: | SYG 2445 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 27 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 9 February 2016 |
REPRESENTATION
| Applicant in person. |
| Counsel for the Respondent: | Mr M Seck |
| Solicitors for the Respondent: | McArdle Legal |
DECLARATION
The Court does not have jurisdiction to entertain claims made by the applicant under the Fair Work Act 2009 (Cth) to the extent such claims rely on the respondent having dismissed the applicant from her employment, but otherwise the Court has jurisdiction, which may include jurisdiction under the Court’s accrued jurisdiction, to entertain the claims made by the applicant.
ORDERS
The application in a case filed by the respondent on 18 November 2014 is otherwise dismissed.
The application in a case filed by the applicant on 24 October 2014 is dismissed.
The matter, to the extent it does not relate to claims made by the applicant under the Fair Work Act 2009 (Cth) based on the respondent’s dismissal of the applicant, stand over for directions on a date to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2445 of 2014
| ELIZABETH ANNE BRIDGES |
Applicant
And
| KARENNE ELIZABETH NORLING TRADING AS ITRAVEL FORSTER |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court are two applications in a case, one filed by the applicant, Ms Bridges, and one by the respondent, Ms Norling, the former employer of Ms Bridges. The applications in a case arise out of proceedings Ms Bridges commenced on 1 September 2014. In those proceedings Ms Bridges alleges that, contrary to Part 3-1 of the Fair Work Act 2009 (FW Act), Ms Norling took adverse action against Ms Bridges by dismissing Ms Bridges from her employment, by taking unwarranted disciplinary action against Ms Bridges, by suspending Ms Bridges without pay, and by discriminating between Ms Bridges and other employees.
In her application in a case, Ms Bridges seeks an order that the fourteen day period prescribed by s.370(a)(ii) of the FW Act for the making of a “general protections court application” be extended. The fourteen day period prescribed by s.370(a)(ii) commences on the day on which the Fair Work Commission (FWC) issues a certificate under s.368(3)(a) of the FW Act in relation to a dispute arising out of an employee’s dismissal that is brought before the FWC under s.365 of the FW Act. By no later than 5 March 2014 Ms Bridges purported to apply to the FWC under s.365 of the FW Act to deal with a dispute arising out of what Ms Bridges alleges was Ms Norling’s dismissal of Ms Bridges’ employment. On 14 August 2014 the FWC issued a certificate purportedly pursuant to s.368 of the FW Act (FWC Certificate). Under s.370 of the FW Act, therefore, Ms Bridges was required to commence proceedings in this Court by 28 August 2014 for relief in relation to the dispute that was covered by the FWC certificate. In her application in a case, Ms Bridges seeks an order that the Court extend the time by which she may file her application to the day on which she actually filed her application, namely 1 September 2014.
Ms Norling, on the other hand, in her application in a case, seeks an order that the proceedings Ms Bridges has brought be dismissed because the Court does not have jurisdiction to entertain the application. Alternatively, Ms Norling seeks declarations in relation to two factual matters and, on the basis of those declarations, summary judgment against Ms Bridges. One of the matters relates to the date on which Ms Bridges’ employment with Ms Norling terminated. Ms Norling submits that Ms Bridges’ employment terminated on 1 February 2014 or otherwise before 12 February 2014.
The ground on which Ms Norling submits the Court does not have jurisdiction is that the FWC did not have jurisdiction to issue the FWC Certificate; and the reason the FWC did not have jurisdiction is that Ms Bridges was not dismissed or, if she was dismissed, Ms Bridges did not, as required by s.366(1) of the FW Act, apply to the FWC within 21 days after the alleged dismissal of her employment took effect; nor did the FWC allow under s.366(1)(b) of the FW Act Ms Bridges further time to apply to the FWC to deal with the dispute. Ms Norling submits that Ms Bridges’ employment terminated on 1 February 2014 or, at any rate, before 12 February 2014. That was more than 21 days before 5 March 2014, being the date on which Ms Bridges applied to the FWC.
The following issues, therefore, arise:
a)Does the Court have jurisdiction to decide whether the FWC validly issued the FWC Certificate?
b)Assuming the Court has jurisdiction, did Ms Norling dismiss Ms Bridges from her employment and, if so, when did such dismissal take effect?
c)Assuming Ms Norling dismissed Ms Bridges, and such dismissal did not take effect more than 21 days before Ms Bridges applied to the FWC, should the Court make the order extending the time under s.370 of the FW Act?
Before I consider these questions, it will be useful to set out the relevant provisions of the FW Act, and the primary facts.
Statutory provisions
From the face of her application, and the claim she has filed with her application, Ms Bridges relies on Part 3-1 of the FW Act. That Part is headed “General Protections”. It prohibits employers from taking “adverse action” against employees in the different circumstances specified in particular provisions of Part 3-1 of the FW Act. The expressions “employer” and “employee” have their ordinary meanings.[1] Part 3-1 of the FW Act applies to Ms Norling, even though she is an individual. New South Wales is a “referring state” within the meaning of s.30L of the FW Act,[2] and, under s.30R(1), Part 3-1 of the FW Act applies to action taken in a State that is a referring State because of Part 1-3, Division 2B of the FW Act.
[1] FW Act, s.335
[2] NSW referred powers under the Industrial Relations (Commonwealth Powers) Act 2009 (NSW)
The expression “adverse action against another person” is defined in s.342(1) of the Act. That subsection contains a table that “sets out circumstances in which a person takes adverse action against another person”. The table identifies in one column the persons by whom and against whom adverse action may be taken, and, in another column, the conduct that, if taken by and against such persons, constitutes adverse action. For the purposes of these proceedings, the relevant person who must take the adverse action is “an employer”, and the person against whom the employer must take the adverse action is “an employee”. And the employer takes “adverse action” if the employer:
(a)dismisses the employee; or
(b)injures the employee in his or her employment; or
(c)alters the position of the employee to the employee’s prejudice; or
(d)discriminates between the employee and other employees of the employer.
The manner in which an employee may pursue in this Court or in the Federal Court a claim based on a contravention of a provision of Part 3-1 of the FW Act depends on the nature of the adverse action the employee alleges was taken against him or her. Where the employee alleges the employer took adverse action by dismissing the employee, the employee cannot commence proceedings unless the employee first applies to the FWC under s.365. That is the combined effect of s.365, s.368, and s.370 of the FW Act.
Section 365 of the FW Act provides that where a person has been dismissed, and the person alleges he or she was dismissed in contravention of Part 3-1 of the FW Act, the person may apply to the FWC to “deal with the dispute”. An application under s.365 must be made “within 21 days after the dismissal took effect” or “within such further period as the FWC allows under subsection” 366(2) of the FW Act.[3] Subsection 366(2) provides that the FWC may allow a further period if the FWC is satisfied there are exceptional circumstances, taking into account the reason for the delay, any action taken by the person to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness as between the person and other persons in a like position.
[3] FW Act, s.366(1)
Sub section 595(2) of the FW Act specifies the manner in which the FWC may “deal with a dispute” once an application has been made to it under s.365 of the FW Act. This includes dealing with the dispute by mediation or conciliation, or by making a recommendation, or by expressing an opinion. The FWC also has power to deal with a dispute by arbitration, but it may do so only if the FWC is expressly authorised to do so under or in accordance with another provision of the FW Act.[4]
[4] FW Act, s.595(3)
Subsection 368(1) of the FW Act provides that if an application is made under s.365 of the FW Act, the FWC must deal with the dispute other than by arbitration. Subsection 368(3) provides that if the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been or are likely to be unsuccessful, the FWC must issue a certificate to that effect and, if the FWC considers that arbitration under s.369 of the FW Act or a “general protections court application” in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly. The expression “general protections court application” is defined in s.368(4) of the FW Act as an “application to a court under Division 2 of Part-4 for orders in contravention of this Part”.
Although s.365 of the FW Act is expressed in permissive terms, the consequence of a person not applying for his or her dispute arising from a dismissal of employment to be dealt with by the FWC is that the person cannot commence proceedings in this Court or in the Federal Court of Australia. That follows from s.370 of the FW Act which provides that a person who is entitled to apply under s.365 of the FW Act to deal with a dispute must not make a general protections court application in relation to the dispute unless the FWC has issued a certificate under s.368(3)(a) of the FW Act “in relation to the dispute” and the application is made “within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days,” or the application includes an application for an interim injunction.
Sections 365 and 370 of the FW Act do not apply to disputes in relation to claims based on the taking of adverse action that does not constitute dismissal (non-dismissal claims). A person may apply to the FWC under s.372 for in relation to a non-dismissal claim to be dealt with by the FWC; but a person’s right to commence proceedings in relation to a non-dismissal claim under Part 4-1 of the FW Act does not depend on the person first applying to the FWC under s.372 or, if the person so applies, on the FWC issuing any certificate. A person may commence proceedings for relief under Part 4-1 in relation to a non-dismissal claim within the time specified in s.544 of the FW Act.
Facts
Since approximately 1991 Ms Norling has conducted a travel agency business. That business now has two offices, one in Taree, and one in Forster. Before 21 October 2013 Ms Norling conducted her travel agency business under the name of “Travelworld Forster”. Since that day Ms Norling has been conducting her travel agency business under the name of “itravel” as part of the itravel franchise. [5]
[5] Norling affidavit, [1], [3], [6]
According to a Form F8 she lodged with the FWC, Ms Bridges commenced her employment with Ms Norling on 25 February 2003 as a travel consultant. In 2006 Ms Bridges was promoted to the position of Travel Consultant/Manager of Travelworld Forster.[6]
[6] Exhibit A, section 3.1, [1]
On 18 December 2013 Ms Bridges informed Ms Norling she wanted to “go mobile” from 1 February 2014. Ms Norling understood by this request that Ms Bridges wished to become a mobile travel consultant. Mobile travel consultants are independent travel consultants who typically work from home using their contacts to make sales. Ms Norling responded by saying she would get a contract in place.[7]
[7] Norling affidavit, [8], [9]
In a statement dated 4 March 2014 that formed part of the Form F8 Ms Bridges lodged with the FWC, Ms Bridges says that on 18 December 2013 she enquired about the possibility of becoming a mobile consultant.[8] Ms Norling agreed to consider the option, and asked Ms Bridges when Ms Bridges would want that to commence. Ms Bridges said possibly 3 February 2014, if things work out.[9]
[8] Exhibit A, statutory declaration, [4]
[9] Exhibit A, statutory declaration, [5]
Ms Norling’s account of what she told Ms Bridges about Ms Bridges’ request to become a mobile travel consultant differs from Ms Bridges’ account. On Ms Norling’s account, Ms Bridges manifested a firm intention to become a mobile travel consultant. On Ms Bridge’s account, she only expressed an interest in becoming a mobile travel consultant, possibly by 3 February but only if things work out. For reasons that will become apparent, it does not matter which account is correct. If it were necessary to make a finding about which account is correct, however, I would prefer the account given by Ms Bridges. She did not know at the time she made the request whether Ms Norling would agree to Ms Bridges becoming a mobile travel consultant, or, if she were to agree, the terms on which she would agree. It is more likely, therefore, that Ms Bridges’ communication to Ms Norling about her becoming a mobile travel consultant would have been in the nature of an enquiry, rather than a firm statement of intention.
On 20 December 2013 Ms Norling sent to Ms Bridges the following email:[10]
This is to formally accept your offer to become a ‘mobile consultant’ with Itravel forster [sic] from Monday 3 February 2014.
I plan to have your mobile contract ready for you to look over on Monday & sign by Tuesday if possible please. I will document your needs & responsibilities involved for your perusal, so we can come to a mutual agreement & understanding.
Ms Bridges responded on the same day by email in which she said: “Sounds good Karenne”.[11]
[10] Norling affidavit, [10], annexure KN1
[11] Norling affidavit [10], annexure KN1
Ms Norling did not provide to Ms Bridges a draft consultancy agreement until 22 January 2014. In the meantime, on 13 January 2014 Ms Bridges had general discussions with her accountant about the set-up options if she were to become a mobile travel consultant.[12] Also, on 15 January 2014, being the day on which she returned from holidays, Ms Bridges checked her entitlements with Ian Hoppe from Payroll Preparations. Ms Bridges did this because another employee was questioning her rate of pay.[13] Ms Bridges discovered her employment commencement date was incorrectly recorded as May 2006.[14]
[12] Exhibit A, statutory declaration, [8]
[13] Exhibit A, statutory declaration, [9]
[14] Exhibit A, statutory declaration, [10]
According to Ms Bridges, on about 17 January 2014, when Ms Norling was at the Forster office, Ms Bridges informed Ms Norling that if she were to go ahead with the mobile travel consultancy, February was too soon to have everything in place for that to occur.[15]
[15] Exhibit A, statutory declaration, [11]
On 22 January 2014 Ms Norling provided to Ms Bridges a draft mobile consultancy agreement. Ms Bridges responded by sending an email to Ms Norling at 11:14 pm on 22 January 2014 in which she stated she would not be signing the agreement. Ms Bridges then made a number of comments, which included the following:
a)According to her records, Ms Bridges was owed 36 days annual leave, not the 147.9 hours noted in the agreement Ms Norling provided to Ms Bridges.
b)Ms Bridges was also entitled to long service leave, and the amount reflecting her long service leave entitlements needed to be reflected in cl.2(iii) of the draft agreement.
c)Ms Bridges will be forming a company to provide mobile travel consultancy services, and she would like all commission payments to be paid to the company.
d)Ms Bridges did not agree to the two year restraint of trade clause.
e)Ms Bridges asked whether cl.1(v) meant commissions would not be paid on new bookings made on behalf of clients in Tramada, and whether she would be provided with Itravel stationery without cost.
f)An arrangement needs to be reached about splitting commissions for existing bookings.
Ms Norling responded by email she sent ten minutes later at 11:24 pm. She said:[16]
Steve from itravel will be visiting next week to speak to you about going mobile & Tracy about Managing. I felt you were unaware of the way it worked. . . . You better advise if u wish to continue with your mobile direction or not. Your contract is virtually identical to all mobile contracts which I have sourced over the past few weeks & gave to Bill Akhurst to fine tune for your needs to include your leave & the usual circumstance of going from employment to mobile.
[16] Norling affidavit [10]-[14], annexure KN2
Ms Norling provided a more detailed response to the issues raised by Ms Bridges in an email sent on 23 January 2014 at 12.21am.[17]
[17] Norling affidavit [15], annexure KN3
a)As to Ms Bridges’ claim that she was owed 36 days annual leave, not the 147.9 hours noted in the draft agreement, Ms Norling said that “Ian” (which is the name of the person who was responsible for payroll) had advised her that Ms Bridges had called him, but Ian believes he is correct.
b)As to Ms Bridges’ enquiry about her long service leave, Ms Norling said she had asked payroll to recalculate.
c)As to Ms Bridges’ comment about the restraint of trade clause, Ms Norling said it was not at all negotiable.
d)As to Ms Bridges’ enquiry about cl.1(v), Ms Norling said “[y]es, its not negotiable”.
e)As to Ms Bridges’ inquiry about stationery costs, Ms Norling said that, being provided with initial business cards and a starter kit, “it is all your cost being self employed”.
f)In response to Ms Bridge’s request that Ms Norling contact Ms Bridges to discuss any of the matters raised in her email, Ms Norling said:
. . . if you need to discuss anything more it should be with Bill Akhurst at Stacks or Steve Labroski from itravel, who has offered to discuss this.
Your contract/offer is very standard, with much effort gone into getting it correct up front, I’m sorry if its not up to your thoughts of what it may have entailed, but it is how it is meant to be. I appreciate your efforts over the years.
Ms Bridges sent an email to Ms Norling in which she stated she agreed “we have come to a stalemate”, and set out a number of other matters.[18]
[18] Norling affidavit [16], annexure KN4
In an affidavit that was read for the purpose of the applications before me, Ms Norling said she was under the understanding that Ms Bridge’s employment “would terminate on 1 February 2014”.[19] Ms Norling does not in her affidavit state why she was under that impression. In any event, on 28 January 2014 Ms Norling had a meeting with Ms Bridges in relation to some issues the auditor of the Travelworld Forster business had raised.[20] According to Ms Bridges, Ms Norling presented to Ms Bridges a list of payments that had been made into the bank account of Ms Bridges.[21] Also according to Ms Bridges, at the conclusion of the meeting Ms Norling informed Ms Bridges that she was being stood down without pay, and that she had received legal advice to act.[22]
[19] Norling affidavit [17]
[20] Norling affidavit [20]
[21] Bridges statement, Exhibit A, [18]
[22] Bridges statement, Exhibit A, [32]
On 29 January 2014 Ms Bridges forwarded to Ms Norling an email attaching a spreadsheet providing “details of all of the transactions you queried”, and providing an explanation of the transactions.[23] Ms Norling responded with an email sent on the same day in which she said that she will pass on Ms Bridges’ email to the auditors.[24] Ms Norling also said that Ms Bridges had returned to the business premises the previous night without authority and took away files. Ms Norling said that “[l]egal advice today has confirmed it to be considered theft unless returned asap today”. Ms Bridges in turn replied she would return the file on that day “with notes on what needs to be done”. She said she did not want “our personal battle to affect the travel arrangements of my valued clients”.[25]
[23] Norling affidavit [21], annexure KN6
[24] Norling affidavit [21], annexure KN6
[25] Norling affidavit [21], annexure KN6
According to Ms Bridges, on 29 January 2014 she returned the files and, in the course of doing so, she had a conversation with Ms Norling during which she explained why she had taken the files.[26] Ms Bridges asked for how long she was being stood down, and Ms Norling replied that it depended on the auditor’s investigation.[27] According to Ms Bridges: [28]
I enquired how long I would be ‘stood down without pay’. She said this depended on the auditors’ investigation. I asked if Ian had got back to Karenne about my entitlements, she replied that my commencement date of February 2003 was correct. I requested that she let me know as soon as Ian had an amount for my entitlements.
[26] Bridges statement, Exhibit A, [34]-[35]
[27] Bridges statement, Exhibit A, [38]
[28] Bridges statement, Exhibit A, [38]
Ms Norling, on the other hand, says Ms Bridges arrived at her office at 3.30 pm together with her husband, and a conversation to the following effect took place:[29]
[29] Norling affidavit [22]-[23]
Bridges:Am I still an employee? Am I dismissed or am I coming back to work.
Norling:You were finishing up on Saturday anyway, we may as well call it quits.
Bridges: What about my entitlements?
Norling:I’m still finalising those. We’ll be in touch but you’ll be paid your entitlements.
Immediately after this conversation, and as she was leaving Ms Norling’s office, Ms Bridges said words to the effect of: “I wouldn’t want to work here anymore anyway”.[30]
[30] Norling affidavit [24]
In my opinion, Ms Norling’s account of the conversation she had with Ms Bridges on 29 January 2014 is more likely to be correct than the account Ms Bridges has given. In particular, I find that, towards the end of the conversation, Ms Bridges said words to the effect of “I wouldn’t want to work here anymore anyway”. Although the effect of those words were not repeated in the email Ms Norling sent on 5 February 2014 (to which I refer below), Ms Norling did refer to Ms Bridges having made “parting remarks” that Ms Norling claimed demonstrated an understanding by Ms Bridges that there was an agreement that Ms Bridges had changed from employee to mobile consultant on 1 February 2014, and that Ms Bridges’ “parting remarks demonstrated an understanding and acceptance of this”.
On 5 February 2014 Ms Bridges sent an email to Ms Norling noting that a week had passed since she had been stood down without pay, and she had heard nothing about the outcome of Ms Norling’s investigations, even though Ms Bridges had provided the information about the transactions Ms Norling had queried. Ms Bridges said:[31]
I am concerned that there are services to be booked & deadlines to be met on many existing bookings & I would like to return to work to do this.
As you know I have always had a strong customer service focus & maintaining commitments I have made to clients is important.
[31] Norling affidavit [26], annexure KN7
On 5 February 2014 Ms Norling responded with the following email:[32]
There was agreement that you changed from employee to mobile consultant on the 1st February 2014. Unfortunately we could not reach agreement on the form of the consultancy deed.
This did not mean that you became an employee again. Your parting remarks demonstrated an understanding and acceptance of this.
Our file and record audit is not yet complete and we will notify you of the result as soon as possible.
In the meantime your files are being checked and thereafter monitored by remaining staff with a view to ensuring that all relevant requirements are met.
[32] Norling affidavit [26], annexure KN7
On 6 February 2014, a firm called KMB Resources wrote on behalf of Ms Bridges a letter to Ms Norling alleging that by standing down Ms Bridges, Ms Norling had taken adverse action against Ms Bridges, and that Ms Norling’s email of 5 February 2014 was a basis for inferring that Ms Bridges’ employment had been terminated. The letter asserted that Ms Bridges remained an employee of Itravel Forster.[33] Ms Norling responded by a letter dated 12 February 2014 sent by her solicitors, Stacks.[34] Stacks asserted that on 18 December 2013 Ms Bridges “openly declared her wish and intention to “…go mobile from the 1st of February . . . .” and that Ms Norling “confirmed her acceptance of this by email” to Ms Bridges on 20 December 2013 “and expressed the hope that she would have a contract ready early the following week”. Stacks also denied Ms Norling had taken any adverse action against Ms Bridges. There then followed further communications between KMB Resources and Stacks which it is unnecessary to repeat in these reasons.
[33] Norling affidavit [28], annexure KN8
[34] Norling affidavit [29], annexure KN9
Jurisdiction to decide validity of FWC Certificate
Counsel for Ms Norling submits the Court has jurisdiction to decide on the validity of the FWC Certificate. Counsel relies on two decisions of this Court. The first is that of Jarrett FM (as his Honour then was) in Dilena v Dowell’s Traffic Management Pty Ltd.[35] In that case the applicant did not apply to Fair Work Australia (FWA) under s.365 of the FW Act within the 60 day period then prescribed by s.366(1) had expired.[36] There was no evidence FWA had granted an extension of time under s.366(2) of the FW Act. Nevertheless, FWA had issued a certificate under s.369 of the FW Act (being the then equivalent of s.368 of the FW Act). Jarrett FM concluded that FWA “had no statutory mandate to deal”[37] with the applicant’s dispute and that, therefore, the certificate FWA issued “has no effect”. That, in turn, meant the Court did not have jurisdiction to consider the applicant’s claim because “[t]he existence of a certificate issued pursuant to s.369 of the Act is a necessary condition to the jurisdiction of this Court in this application”.[38]
[35] [2012] FMCA 60
[36] At the time of that proceeding, the time prescribed by s.366(1) was 60 days.
[37] [2012] FMCA 60 at [22]
[38] [2012] FMCA 60 at [23]
The second decision on which counsel for Ms Norling relies is the decision of Raphael FM in Stack v Michael Hill Jeweller (Australia) Pty Ltd.[39] In Stack, FWA issued a certificate under s.369 of the FW Act even though the applicant had not applied to FWA under s.365 of the FW Act within the time prescribed by s.366(1) of the FW Act and FWA had not ordered an extension of time pursuant to s.366(2) of the FW Act. Raphael FM concluded that FWA did not engage with s.366(2) of the FW Act and that failure “invalidates the certificate”.[40] The result was that “the jurisdictional fact required for the application of s.371(1)(a)[[41]] - the existence of such a certificate – was not satisfied”.[42]
[39] [2012] FMCA 259
[40] [2012] FMCA 259 at [12]
[41] Now s.370(a)(i) of the FW Act
[42] [2012] FMCA 259 at [10]
In neither case did the Court consider whether it had jurisdiction to decide whether the certificate FWA issued was invalid; in both cases the Court assumed it did. In my opinion, however, it is not immediately obvious that this Court has jurisdiction to determine, in a proceeding for relief under the FW Act based on a contravention of Part 3-1 of the FW Act, whether a certificate issued by the FWC purportedly pursuant to s.368 of the FW Act is valid. The FWC’s issuing of a certificate constitutes the purported exercise of a power vested in that body by the FW Act. A person who claims that an administrative tribunal has acted in excess of its powers usually pursues that claim by commencing proceedings against the tribunal itself and, where available, a likely contravener, seeking relief that is directed to the decision. Such relief may include an order quashing the decision, or an order in the nature of prohibition or an injunction restraining the body from acting on its decision, or an order declaring the tribunal’s decision to be invalid.
Ms Norling has not commenced any such proceedings against the FWC, and has not in the proceeding before me claimed any relief specifically directed to the FWC’s decision to issue the FWC Certificate. That does not necessarily mean, however, that the Court has no jurisdiction to decide on the validity of the FW Certificate; for there are circumstances in which the lawfulness of action taken or decision made by an administrative tribunal may be challenged “in proceedings where the validity of the administrative act is merely an incident in determining other issues”.[43] The challenging of administrative decisions in such circumstances is often referred to as “collateral attack” or “collateral challenge”.
[43] Ousley v R (1997) 192 CLR 69 at page 99 (McHugh J)
Collateral challenge of decisions of administrative tribunals has a long history in English law, much of it having taken place centuries before the modern development and conceptualisation of administrative law.[44] In the late sixteenth and early seventeenth centuries the Court of King’s Bench examined the legality of decisions of Sewer Commissioners in actions of replevin and trespass brought against them.[45] This occurred well before 1642 when, in Commins v Massam, Heath J said that although “without question in replevin or trespass” the proceedings of the Commissioners of Sewers were examinable by the Court of King’s Bench, that Court also could examine their proceedings by issuing a writ of certiorari directed to the Commissioners.[46] Courts have entertained collateral challenge in other contexts: the old central common law courts examined the validity of orders made by justices of the peace and by inferior courts in actions for trespass, replevin, and false imprisonment against justices of the peace who made the orders and against officials who acted on the faith of those orders;[47] an accused has been held entitled to challenge the validity of an administrative act, the validity of which was necessary to the existence of an essential element of the crime for which the accused was indicted;[48] and a defendant on a criminal charge was held entitled to challenge the validity of subordinate legislation that purported to create the offence with which the defendant was charged.[49]
[44] “The distinction between direct and collateral methods of attack has been known since the early formative periods of the common law. Collateral proceedings are nowadays regarded as an exceptional way of establishing the invalidity of a decision . . . . Yet, in the past, this method constituted the regular and, very often, the only remedy available.” - A Rubinstein Jurisdiction and Illegality Oxford, 1965, at page 54
[45] See H Weintraub “English Origins of Judicial Review by Prerogative Writ: Certiorari and Mandamus” 9 NYLF 478 (1963) at pages 505-508
[46] (1642) March NC 196 at 197; [1675] EngR 382; 82 ER 473 at 473.
[47] A Rubinstein, Jurisdiction and Illegality Oxford, 1965, pages 124-135 and Chapter VI. See also W Paley The Law and Practice of Summary Convictions on Penal Statutes by Justices of the Peace 2nd ed, London, 1827 at page 330 where the author stated: “By the common law the regularity of the proceedings under a summary jurisdiction may be questioned in a collateral action”. The author referred to Terry v Huntington [1660] EngR 254; Hard 480; 145 E.R. 557. The validity of the order could only be inquired into if the defendants specifically raised in their pleas that the order was made within jurisdiction, and the plea specifically set out the facts which disclosed the inferior court had jurisdiction - Dye and Olives Case [1675] EngR 519; (1675) March NR 117; 82 E.R. 437
[48] Director of Public Prosecutions v Head [1959] AC 83
[49] Kruse v Johnson [1898] 2 QB 91; Boddington v British Transport Police [1999] 2 AC 143
In Australia, too, there are cases of collateral challenge. For example, in Widgee Shire Council v Bonney[50] and Dignan v Australian Steamships Pty Ltd[51] the High Court considered the validity of delegated legislation that was challenged collaterally. There was no issue in those cases that the validity of the delegated legislation in question could be collaterally challenged; and only Isaacs J, in Widgee Shire Council, considered whether the validity of the subordinate legislation could be so challenged. His Honour said that a “person charged with contravention of a by-law may, as in this case, defend himself if he can demonstrate its invalidity”.[52] In Ousley v R the High Court held that, in the circumstances I discuss below, an accused was entitled to challenge the validity of a warrant purportedly issued under the Listening Devices Act 1969 (Vic) (LD Act) in the criminal proceedings in which recordings of telephone conversations obtained as a result of the execution of the challenged warrant were adduced into evidence.[53] Another example is Federal Airports Corporation v Aerolineas Argentinas.[54] There, the Full Court of the Federal Court held it was open to a number of airlines to bring an action for the recovery of money they paid in response to an invalid administrative determination without the airlines first having that determination set aside.
[50] (1907) 4 CLR 977
[51] (1931) 45 CLR 188
[52] (1907) 4 CLR 977 at 985-986
[53] (1997) 192 CLR 69
[54] (1997) 76 FCR 582 (Beaumont, Whitlam, Lehane JJ)
With the modern expansion of the jurisdiction of superior courts to engage in judicial review, the availability of collateral challenge of decisions of administrative tribunals and agencies appears to be exceptional. And some judges, particularly in England, have questioned the desirability of allowing collateral challenge any wide scope. A number of reasons have been given for this: [55] judicial review is based on a complex body of law that is best administered by the superior courts that have jurisdiction to review the decisions of inferior courts and tribunals; collateral challenge may provide a means of circumventing limitations on judicial review such as time limits for commencing proceedings and discretionary considerations barring the granting of relief; collateral challenge may complicate and protract proceedings by necessitating a trial within a trial; and the administrative body whose decision is challenged may not be a party to the proceeding in which its decision is challenged and, thus, have no opportunity to defend its decision.
[55] E Campbell “Collateral Challenge of the Validity of Governmental Action” (1998) 24 MULR 272 at pages 274-275
Although it has been permitted in various contexts, there are no settled principles that govern the circumstances in which collateral challenge may be permitted. It is true that in Ousely v R the High Court held that the validity of a warrant purportedly issued under the LD Act could be challenged collaterally in the criminal proceeding in which the recordings of intercepted conversations that were obtained as a result of the warrant were tendered. None of the five justices of the High Court in Ousley, however, grounded their conclusions on any general principle; their Honours’ conclusions were based on the proper construction of the LD Act, and on principles that had been applied to warrants issued under similar legislation and to other warrants in general. Some guidance, however, was provided by Besanko J, when sitting in the Full Court of the Supreme Court of South Australia, in Jacobs v OneSteel Manufacturing Pty Ltd.[56]
[56] (2006) 93 SASR 568
The question in that case was whether the Workers Compensation Tribunal (Tribunal) had jurisdiction to determine the validity of Rules of the Tribunal in the course of determining whether it should make a particular order for costs.[57] Besanko J held the Tribunal did have jurisdiction to determine on collateral challenge the validity of its rules because the challenge was sufficiently analogous to the collateral challenge of delegated legislation.[58] His Honour went further, however, and “considered if the question whether a collateral challenge is permissible in this case may be answered by reference to a general principle that applies in the case of all legislative and administrative acts”.[59] After acknowledging that the particular statutory context in which the challenged decision was made may determine whether collateral challenge was permissible, Besanko J held that whether or not collateral challenge should be permitted in a given case is to be determined by addressing the following questions:[60]
[57] Although described as a “tribunal”, the Tribunal was not an administrative tribunal. It was constituted to exercise judicial power: see, for example, s.94 of the Workers Rehabilitation and Compensation Act 1986 (SA)
[58] (2006) 93 SASR 568 at [83], [89]
[59] (2006) 93 SASR 568 at [91]
[60] (2006) 93 SASR 568 at [93]
1. Are the grounds of challenge likely to involve the adducing of substantial evidence?;
2. If a collateral challenge is permitted, will all proper parties be heard before the court or tribunal in which the collateral challenge is to be heard?;
3. In the particular case, does the allowing of a collateral challenge by-pass the protective mechanisms associated with judicial review proceedings such as the rules as to standing, delay and other discretionary considerations?;
4. Is there a statutory provision that bears in one way or another on the question of whether a collateral challenge should be permitted?
5. Is the issue raised by the collateral challenge clearly answered by authority?;
6. Are there other cases pending which raise the same issue?
7. (Possibly) Is there a more appropriate forum in terms of expertise and perhaps court procedures such that a collateral challenge should not be permitted?
Besanko J’s approach assumes that, in the absence of any statutory provision that expressly or impliedly prevents a court from entertaining a collateral challenge, a court would have jurisdiction to entertain a foreshadowed collateral challenge. Except for the fourth question, all questions his Honour posed assume that a court faced with a foreshadowed collateral challenge has jurisdiction to entertain such challenge but, depending on the answers given to the questions, may decline to exercise such jurisdiction. If, for example, the foreshadowed collateral challenge is not likely to involve the adducing of substantial evidence, and is not likely to by-pass protective mechanisms that would apply if the decision were to be challenged on judicial review, then it may be appropriate for the court to entertain the collateral challenge. If, on the other hand, the foreshadowed collateral challenge is likely to involve the adducing of substantial evidence and by-pass protective mechanisms, the court may decide not to entertain the collateral challenge.
On what grounds did Besanko J assume that, barring any statutory provision to the contrary, a court that is faced with a foreshadowed collateral challenge has jurisdiction to entertain that challenge? I am unable to infer from his Honour’s reasons any clear answer to that question. That, at least to me, is not surprising; I have been unable to find any modern authority that specifically considers the circumstances in which a court will have jurisdiction to entertain a collateral challenge. On my rather limited review of the authorities and academic writings, the underlying idea, usually implicitly held and applied, appears to be that a court’s jurisdiction to entertain a collateral challenge depends on the ground on which the administrative decision is challenged. The idea is that a court will have jurisdiction to entertain a collateral challenge if the challenger claims the administrative decision was made in excess of jurisdiction and, therefore, was “a decision that lacks legal foundation and is properly regarded, in law, as no decision at all”.[61] McHugh J expressed this idea in Ousley v R when his Honour said that “since the prevailing theory is that an administrative act or order made outside jurisdiction is void, a litigant, affected by the act or order, may challenge it collaterally”.[62] Professor Craig stated it more explicitly:[63]
Collateral attack will only be an option where the defect alleged is jurisdictional. Errors of law on the face of the record could therefore not be impeached collaterally, but only by way of certiorari. The rationale was that the court in a collateral action could take account of the invalidity of a challenged order; it was acting in a “declaratory” role. If, however, the decision was valid, albeit tainted with some error, it could only be challenged by appeal, or by certiorari where the error was one of law on the face of the record.
[61] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [51] (Gaudron and Gummow JJ)
[62] (1997) 192 CLR 69 at page 100
[63] P Craig Administrative Law 7th ed. Sweet & Maxwell, 2012 at page 745
The relevance to a court’s jurisdiction to entertain a collateral challenge that the ground of the challenge is that the administrative decision was made in excess of jurisdiction is that the success of such challenge does not depend on a court making an order to set aside the administrative decision: the administrative decision, if it will be found to have been made in excess of jurisdiction, is not in law a decision. There is therefore no need for the challenger to pursue his or her claim in a court that has jurisdiction to grant such relief. All that the challenger requires is some court to find that the administrative decision was made in excess of jurisdiction.
It does not follow, however, that a claim that an administrative decision has been made in excess of jurisdiction necessarily confers jurisdiction on the court in which such claim is made to entertain the claim. Whether or not an administrative decision is affected by jurisdictional error is a question that can be conclusively determined only by a court having jurisdiction to determine that question. As was said by Gageler J in relation to inferior courts, which, in this context, applies equally to decisions made by administrative tribunals:[64]
Where there is doubt about whether a judicial order of an inferior court is made within jurisdiction, the validity of the order “must always remain an outstanding question” unless and until that question is authoritatively determined by some other court in the exercise of judicial power within its own jurisdiction . . . .
[64] New South Wales v Kable (2013) 252 CLR 118 at [56]
Given there is no Australian court with unlimited jurisdiction,[65] it cannot be presumed that a court in Australia has jurisdiction to entertain collateral challenges to decisions on the ground they are infected with jurisdictional error. Such jurisdiction will readily be found in the State and Territory Supreme Courts to the extent they have directly or indirectly inherited the general jurisdiction of the Court of King’s Bench,[66] or to the extent general jurisdiction has been conferred on those Courts; but the existence of such jurisdiction in any given case may be more difficult to locate in State and Territory inferior courts, and in federal courts created pursuant to s.71 of the Constitution which necessarily exercise discrete heads of jurisdiction conferred on them by laws made under s.77(i) of the Constitution. Whether or not a federal court created pursuant to s.71 of the Constitution has jurisdiction in a particular case to entertain a collateral challenge, therefore, will, in the first instance, depend on the proper construction of the statutory provisions enacted pursuant to s.77(i) of the Constitution which confer jurisdiction on that court, and on the provisions that regulate the exercise of the jurisdiction that is so conferred in the circumstances of the case in which a collateral challenge is raised.
[65] New South Wales v Kable (2013) 252 CLR 118 at [30]
[66] “At federation, each of the Supreme Courts referred to in s 73 of the Constitution had jurisdiction that included such jurisdiction as the Court of Queen’s Bench had in England” – Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [97]
Whether or not, therefore, this Court has jurisdiction to determine whether the FWC issued the FWC Certificate as a result of any jurisdictional error depends, in the first instance, on the proper construction of the relevant provisions of the FW Act which confer jurisdiction on this Court and which regulate the exercise of that jurisdiction. The starting point is s.566 of the FW Act. It provides that jurisdiction is conferred on this Court “in relation to any civil matter arising under this Act”. For the Court to have jurisdiction under this section, two things must be satisfied. The first is there must be a “matter”. For reasons I have given elsewhere, [67] the word “matter” in s.566 of the FW Act bears the same meaning as “matter” in s.77(i) of the Constitution. It means the subject matter for determination of a legal proceeding; and “there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court”.[68] Second, for the reasons I have also given elsewhere,[69] the expression “arising under” appearing in s.566 of the FW Act has the same meaning as the expression “arising under” that appears in s.76 of the Constitution. Thus, a matter arises under the FW Act “if the right or duty in question in the matter owes its existence to” the FW Act or “depends” on the FW Act “for its enforcement, whether or not the determination of the controversy involves the interpretation” of the FW Act. [70]
[67] Amponsem v Laundy (Exhibition) Pty Ltd (No 2) [2016] FCCA 91 at [25]
[68] In re the Judiciary Act 1903-1920 & In re the Navigation Act 1912-1920 [1921] HCA 20; (1921) 29 CLR 257 at page 265
[69] Amponsem v Laundy (Exhibition) Pty Ltd (No 2) [2016] FCCA 91 at [23]
[70] R v Commonwealth Court of Conciliation & Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141 at page 154 (Latham CJ). This passage was referred to with approval in LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; (1983) 151 CLR 575 at page 581
A claim that the FWC did not have jurisdiction to issue the FWC Certificate because Ms Bridges did not apply to the FWC under s.365 of the FW Act within the time prescribed by s.366(1) is a “matter”. Such claim calls into question the power of the FWC to have issued the FWC Certificate. That matter, however, cannot be said to arise under the FW Act. A claim that the FWC issued the FWC Certificate without jurisdiction does not owe its existence to the FW Act; nor does the enforcement of such claim depend on the FW Act.
This conclusion does not exhaust the answer to the question whether the Court has jurisdiction to decide whether the FWC validly issued the FWC Certificate. The FW Act contains provisions that regulate the jurisdiction conferred by s.566 of the FW Act; and these provisions may require the Court to consider whether the FWC validly issued the FWC Certificate. Of particular relevance is s.370 of the FW Act, which I have set out earlier in these reasons.
Section 370 requires that two conditions must be satisfied before this Court can entertain a general protections court application based on a person’s having been dismissed from his or her employment (Relevant Application). One of those conditions is that “the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute”. And here, questions of construction present themselves. Is the condition prescribed by s.368(3)(a) of the FW Act satisfied simply by the production of a certificate issued by the FWC that certifies the matters specified in s.368(3)(a) of the FCW Act? Or is it also necessary that any preconditions prescribed by the FW Act to the FWC issuing a certificate also be satisfied before this Court can assume jurisdiction under s.370 to consider a Relevant Application? The answers to these questions depend on first determining whether the FW Act prescribes any preconditions to the issuing of a certificate under s.368(3)(a) and, if so, whether, on the proper construction of the relevant provisions of the FW Act, the issuing of a certificate without those preconditions being satisfied deprives the purported certificate of any legal effect.[71]
[71] Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [93]
The FW Act does prescribe a number of preconditions to the FWC’s issuing of a certificate under s.368(3)(a): a person must have been dismissed from his or her employment;[72] the person or an industrial association entitled to represent the person, must allege the person was dismissed in contravention of Part 3-1 of the FW Act;[73] the person or industrial association may apply to the FWC for the FWC to “deal with the dispute”,[74] but the person or industrial association must so apply within 21 days of the dismissal taking effect;[75] if the person or industrial association does not so apply within 21 days of the dismissal taking effect, he or she (or the industrial association) must apply within such further period as the FWC may allow;[76] the FWC may allow a further period for the person or industrial association to apply if the FWC is satisfied there are exceptional circumstances taking into account the matters specified in s.366(2);[77] and if the person applied to the FWC within 21 days after the dismissal took effect or within any further period the FWC may have allowed, the FWC dealt with the dispute other than by arbitration.[78] There is no doubt in my mind that all of these matters are jurisdictional facts; that is, facts that must exist independent of the FWC’s being satisfied that such facts exist.[79]
[72] Section 365
[73] Section 365
[74] Section 365
[75] Subsection 366(1)(a)
[76] Subsection 366(1)(b)
[77] Subsection 366(2)
[78] Subsection 368(1)
[79] See, for example, Anvil Hill Project Watch Association Inc v Minister for Environment and Water resources (2008) 166 FCR 54 at [21] (Tamberlin, Finn and Mansfield): “To constitute a condition precedent, the relevant fact or circumstances must exist independently of, and be objectively determined prior to, the exercise of the power or performance of the duty by the decision-maker. . . . Although there is no strict verbal formula, the existence of a jurisdictional fact is frequently signalled by the use of expressions such as “where ‘x’ exists”, or “when ‘x’ exists” or “if ‘x’ exists”, then a person is empowered or obliged to act or refrain from action. The ‘x’ in this format is the relevant fact or circumstance which is a condition precedent to the exercise of a power or performance of a duty.”
Whether or not the non-occurrence of any one of these preconditions will deny legal effect to a certificate the FWC may have issued purportedly pursuant to s.368(3)(a) of the FW Act depends on the application of the following principle declared by the plurality in Project Blue Sky Inc & Ors v Australian Broadcasting Authority:[80]
A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. . . . In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute” [references omitted]
[80] [1998] HCA 28; (1998) 194 CLR 355 at [93]
The relevant provision that must be considered is s.366 of the FW Act: is it the purpose of the FW Act, having regard to the language of s.366, and the scope and purpose of the FW Act, that a certificate purportedly issued pursuant to s.368(3)(a) of the FW Act should be held invalid if the FWC issues such certificate without s.366 having been complied with? In my opinion, that question must be answered in the affirmative. The provisions manifest a clear intention that the FWC should not deal with an application that is made to it under s.365 of the FW Act to deal with a dispute unless the application is made within 21 days after the dismissal took effect or, if the FWC is of the view there are exceptional circumstances, within such further time after the dismissal took effect as the FWC may allow. That intention would be defeated if the FWC were to deal with an application made out of time, and, after dealing with the application, issue a certificate purportedly pursuant to s.368(3)(b) of the FW Act. The purpose of the FW Act, therefore, is that a certificate issued by the FWC purportedly pursuant to s.368(3)(b) of the FW Act in circumstances where s 365 and s.366 have not been complied with is to deny any legal effect to the certificate.
If, as I have found, the purpose of the FW Act is to render a certificate purportedly issued under s.368(3)(a) of the FW Act invalid if the FWC issued such certificate in relation to an application that was made more than 21 days after the dismissal took effect without the FCW allowing further time for the making of the application, it must follow that, on its proper construction, the expression “the FWC has issued a certificate” in s.370(a)(i) must be construed to mean “the FWC has [validly] issued a certificate”. It must, in turn, follow that in determining whether s.370 is satisfied, this Court must consider not only whether the FWC has issued a certificate certifying the matters prescribed in s.368(3)(a) of the FW Act, but whether the FWC has validly issued such certificate. That means this Court has jurisdiction to determine whether the FWC has validly issued a certificate under s.368(3)(a) of the FW Act.
This analysis suggests a broader principle. Every court has jurisdiction to decide whether its jurisdiction has been properly invoked, it being the “very first duty of every judicial officer . . . to satisfy himself that he has jurisdiction”.[81] Thus, where a court’s jurisdiction is conditional on some valid act or decision of an administrative tribunal, the court has jurisdiction to determine whether such act or decision has been made, and whether it has been made within the jurisdiction of the administrative tribunal.
[81] Federated Engine-Drivers and Firemen’s Association of Australia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 395 at page 415
Was the FWC Certificate validly issued?
Ms Norling submits the FWC did not validly issue the FWC Certificate because Ms Bridges was not dismissed from her employment. Ms Norling submits Ms Bridges and Ms Norling agreed to terminate the employment relationship which would take effect on 1 February 2014. Alternatively, Ms Norling submits that if Ms Bridges was dismissed, that dismissal took effect more than 21 days before she applied to the FWC, and the FWC did not allow Ms Brides any further time by which she could apply to the FWC.
Was Ms Bridges dismissed?
For the reasons I have given elsewhere, the expression “dismisses the employee” in the table to s.342(1) of the FW Act means an employer’s repudiation of the employment contract, whether or not the employee accepts the repudiation.[82] The question, therefore, is whether Ms Norling repudiated Ms Bridges’ employment contract.
[82] Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721 at [26]-[28]
Ms Norling submits she and Ms Bridges agreed that the employment contract would terminate on 1 February 2014. That agreement is said to have been constituted by Ms Bridges informing Ms Norling on 18 December 2013 that she wanted to “go mobile” from 1 February 2014 and by Ms Norling’s email of 20 December 2013 in which Ms Norling “formally accept[ed] [Ms Bridges’] offer to become a ‘mobile consultant’ with Itravel forster [sic] from Monday 3 February 2014”. Ms Norling also relies on her account of the conversation she had with Ms Bridges on 29 January 2014 which I have accepted. She submits the conversation “reflects a mutual understanding between the parties that the employment had ended by consent on Saturday, 1 February 2014”.[83]
[83] Respondent’s Outline Submissions [44]
I do not accept Ms Norling’s submissions. No binding agreement that Ms Bridges would become a mobile travel consultant arose as a result of Ms Norling sending the email to Ms Bridges on 20 December 2013. It is clear from Ms Norling’s email of 20 December 2013 that Ms Bridges’ being appointed a mobile travel consultant was conditional on Ms Bridges signing a contract. Yet the terms of such contract had not by then been formulated. Nor, on the evidence before me, did Ms Bridges or Ms Norling discuss, let alone agree on, any proposed term relating to Ms Bridges becoming a mobile travel consultant. All that had occurred by 20 December 2013 is that Ms Norling had agreed to “document [Ms Bridges’] needs & responsibilities involved for [Ms Bridges’] perusal, so we can come to a mutual agreement & understanding”. [84] It could, of course, be said that Ms Bridges and Ms Norling contemplated that the new arrangements would take effect by 3 February 2014; but that was conditional on agreement being reached in the first place.
[84] Norling affidavit, [10], annexure KN1
Given there was no binding agreement that Ms Bridges would become a mobile travel consultant, it cannot reasonably be inferred that Ms Bridges and Ms Norling agreed that if no “mutual agreement & understanding” concerning Ms Bridges becoming a mobile travel consultant were to be reached by 3 February 2014, that the employment of Ms Bridges would be at an end on that date. The only expressly contemplated alteration in the position of Ms Bridges was from employee to mobile travel consultant. At most, Ms Bridges and Ms Norling agreed that the employment relation of Ms Bridges would cease on 3 February 2014; but only if they were to agree by that date on the terms on which Ms Bridges would become a mobile travel consultant.
What of the conversation of 29 January 2014, as recounted by Ms Norling? Did it manifest a common understanding that the employment of Ms Bridges would end on 1 February 2014 (which was a Saturday), even though Ms Bridges and Ms Norling had not agreed on Ms Bridges becoming a mobile travel consultant? In my opinion, it did not.
The conversation consisted of Ms Bridges asking three questions, Ms Norling answering those questions, and Ms Bridges making a comment in response to Ms Norling’s answers. The questions Ms Bridges asked reveal she was uncertain about whether she was still an employee, and whether she was “coming back to work”. Ms Bridges’ uncertainty of these matters is not consistent with her sharing a common understanding with Ms Norling that Ms Bridges’ employment was due to end on 1 February 2014. Had Ms Bridges shared such understanding, she would not have asked Ms Norling the questions she did. Further, the answers Ms Norling gave were categorical: according to Ms Norling, Ms Bridges was due to finish “on Saturday anyway” and “we may as well call it quits”. Ms Norling’s answer could not reasonably be interpreted as inviting discussion about whether Ms Bridges would end her employment. Ms Norling’s answers manifested a firm view that Ms Bridges’ employment would end “on Saturday”. In those circumstances, Ms Bridges’ statement as she was leaving the meeting that she “wouldn’t want to work here anyway” cannot be interpreted as an agreement that her employment would be terminated on 3 February 2014, or as an admission that she had a common understanding that her employment would end on 3 February 2014. Read in context, by stating, probably in anger, that she “wouldn’t want to work here anyway”, Ms Bridges meant that she would not want to continue to work at Travelworld Forster, even if Ms Norling were willing to continue to employ her after 3 February 2014. Ms Bridge’s statement was no more than an acknowledgment of a decision Ms Norling unilaterally made that Ms Bridges’ employment would end “on Saturday”.
In my opinion, the answers Ms Norling gave at the meeting of 29 January 2014 to Ms Bridges’ questions constituted a dismissal, that is, a repudiation of Ms Bridges’ employment. By her answers to Ms Bridges’ questions, Ms Norling unequivocally communicated to Ms Bridges her decision that Ms Bridges’ employment would end on 1 February 2014 in circumstances where, as I have found, there was no agreement between Ms Bridges and Ms Norling that the employment relation would end on 1 or on 3 February 2014, and Ms Norling did not give Ms Bridge’s reasonable notice of her intention to terminate her employment. This conclusion assumes Ms Bridges’ employment contract was subject to an implied term that either party could terminate the contract on the giving of reasonable notice. In the absence of evidence of any contrary express term, that is an assumption on which it is reasonable to rely, and on which I do rely. That is so because:[85]
In the absence of any provision in the award and of any express provision in the contract of employment the law would regard it as a legal incident of the contract that it should be terminable upon reasonable notice or summarily for serious breach.
When did the dismissal “take effect”?
[85] Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at pages 422-423 (Brennan CJ, Dawson and Toohey JJ)
The time prescribed by s.366(1) of the FW Act for making an application to the FWC under s.365 is stated to commence, not 21 days after the dismissal, but 21 days “after the dismissal took effect”. If, as I am of the opinion is the case, “dismisses the employee”, as used in s.342 of the FW Act, means an employer’s repudiation of the employment contract, whether or not the employee accepts the repudiation, the expression “after the dismissal took effect” in s.366(1) of the FW Act means after the employment relation ended as a consequence of the dismissal. As with all contracts, subject to any contrary express term, an employer’s repudiation of an employment contract by a wrongful dismissal does not put an end to the contract until the employee elects to accept the repudiation.[86] The relevant questions, therefore, are whether Ms Bridges accepted Ms Norling’s repudiation and, if so, how and when she accepted that repudiation.
[86] Visscher v Guidice (2009) 239 CLR 361 at [53]-[55] (Heydon, Crennan, Kiefel, and Bell JJ)
A repudiation of a contract “may be accepted expressly or, more often, by implication from conduct”,[87] but “the words or conduct required to constitute an election must be unequivocal in the sense that it is consistent only with the exercise of one of the two sets of rights and inconsistent with the exercise of the other”.[88] In the context of an unlawful dismissal, the two sets of rights between which an employee may make an election are the employee’s right to accept the repudiation of the employment contract or to affirm the employment contract.
[87] Advertiser Newspapers Pty Ltd v Industrial Relations Commission (SA) (1999) 74 SASR 240 at [36] (Bleby J).
[88] Sargent v ASL Developments Ltd (1974) 131 CLR 634 at page 646 (Stephen J) quoted with approval in Imer (No. 145) Pty Ltd v The Uniting Church in Australia Property Trust (NSW) (1993) 182 CLR 26 at pages 38-39 (Deane, Toohey, Gaudron, and McHugh JJ).
For there to be a valid election, there must be “an element of knowledge on the elector”.[89] As was noted by Stephen J in Sargent v ASL Developments Ltd, however, the “nature of the knowledge which an elector must possess is a matter upon which the authorities are somewhat at variance”:[90] These differences have not to this day been resolved. Perhaps the reason is that the question whether a valid election requires knowledge, not only of the facts giving rise to the right to elect, but of the right itself, has been considered in different circumstances which may call for different answers. One important distinction, however, is that identified by the High Court in Elder’s Trustee & Executor Co. Ltd. v. Commonwealth Homes & Investment Co. Ltd between “cases where the party’s conduct is unequivocal in its effect and cases where this conduct does not necessarily amount to a waiver but is merely some evidence that he has in fact elected to affirm”.[91] Speaking of an election to affirm a contract, the High Court said:
Where rights are exercised, either in virtue of an estate or interest in property, or by virtue of a contract, which would not exist unless the estate, interest or contract endured or remained in force, it may well be that the party exercising them loses the right to determine the estate or interest on breach of condition or the contract for breach of some term going to the root of it, unless he is able to show not merely that he was unaware of the existence of his right but of the facts amounting to breach of condition or of contract.
[89] (1974) 131 CLR 634 at page 646
[90] (1974) 131 CLR 634 at pages 646-647
[91] (1941) 65 CLR 603 at page 618 (Rich ACJ, Dixon and McTiernan J)
Where, however, there is no conduct that is unequivocal in its effect, the conduct of a person that is claimed to constitute an election would be no more than evidence that might give rise to the inference, “if he knew that he had a right of election, that he had resolved to affirm”.[92]
[92] (1941) 65 CLR 603 at page 618 (Rich ACJ, Dixon and McTiernan J)
From Elder’s Trustee, a general principle may be formulated. Where the conduct of a person that is alleged to constitute an election is not unequivocal in its effect, the conduct may nevertheless support an inference that the person made the election if the conduct is consistent with the person having resolved to make the election and the person had knowledge that he or she had the right to make the election. Where, on the other hand, the effect of the conduct is unequivocal in its effect, it is not necessary to inquire into whether the person who engaged in the conduct knew he or she had the right to elect.
Did Ms Bridges, then, elect to accept Ms Norling’s repudiation of the employment contract? If so, how, and when? Ms Norling submits Ms Bridges accepted the repudiation in the meeting of 29 January 2014 by stating: “I wouldn’t want to work here anymore anyway”. I agree. As I have already found, by uttering these words Ms Bridges intended to convey that she would not want to continue to work at Travelworld Forster, even if Ms Norling were willing to continue to employ her after 3 February 2014. In my opinion, the effect of Ms Bridges’ words on 29 January 2014 constituted an unequivocal acceptance by Ms Bridges of Ms Norling’s repudiation of the employment contract. They indicated that Ms Bridges did not wish to work again for Ms Norling, even if Ms Norling were to withdraw her repudiation of the employment contract. By accepting on 29 January 2014 Ms Norling’s repudiation of Ms Bridges’ employment contract, Ms Norling’s dismissal of Ms Bridges took effect on 29 January 2014. That means that Ms Bridges was required to make an application to the FWC in relation to a claim under the FW Act based on her dismissal 21 days after 29 January 2014, being the day on which Ms Bridges accepted Ms Norling’s repudiation of Ms Bridges’ contract of employment.
Conclusions and disposition
My conclusions are as follows:
a)The FWC’s issuing a valid certificate under s.368(3)(a) of the FW Act is one of the preconditions specified in s.370 of the FW Act to the Court exercising jurisdiction over applications that are made to it for contraventions of Part 3-1 of the FW Act where the adverse conduct on which such applications are based is alleged to be dismissal. In those circumstances, this Court has jurisdiction to determine whether the FWC Certificate was not validly issued because Ms Bridges did not apply under s.365 to have the FWC deal with the dispute arising out of her alleged dismissal within the 21 day period prescribed by s.366(1) of the FW Act.
b)On 29 January 2014 Ms Norling repudiated the contract of employment between her and Ms Bridges, and on the same day Ms Bridges accepted that repudiation. Accordingly, Ms Bridges was dismissed from her employment, and, within the meaning of s.366(1)(a) of the FW Act, the dismissal “took effect” on 29 January 2014.
c)If Ms Bridges wished to make an application for relief under Part 3-1 of the FW Act on the ground that her dismissal constituted adverse conduct, she first had to apply to the FWC under s.365 of the FW Act for the dispute to be dealt with by the FWC, and she was required to make that application 21 days after 29 January 2014 or within such further period as the FWC may have allowed under s.366(1)(a) of the FW Act. Ms Bridges did not, however, apply to the FWC 21 days after her dismissal took effect, and the FWC did not exercise the power under s.366(1)(b) of the FW Act to allow Ms Bridges a further period within which to make such application.
d)Because of the matters referred to in (c), the FWC Certificate is of no legal effect and the Court, therefore, does not have jurisdiction to entertain that part of Ms Bridges’ application that relies on her dismissal because one of the preconditions prescribed by s.370 of the FW Act to entertain Ms Bridges’ application based on her dismissal, namely, FWC issuing a valid certificate under s.368(3)(a) of the FW Act has not been satisfied.
These conclusions do not imply the Court has no jurisdiction over any of the claims Ms Bridges makes in her application. Ms Bridges also alleges Ms Norling took adverse action against her other than by dismissing her. That can be seen, for example, in paragraphs 3, 12, 14, 15, and 7 of Part G of the Form 2 Claim (Claim). The Court’s jurisdiction to entertain claims for contravention under Part 3-1 where the adverse action is not alleged to be dismissal does not depend on an application first being made to the FWC for the FWC to deal with such claims. In those circumstances, it would be inappropriate to dismiss Ms Bridges’ application. Further, to the extent Ms Bridges’ also claims damages under the general law for breach of her contract of employment, the Court may also have jurisdiction under its accrued jurisdiction to deal with such claim. The appropriate relief, therefore, would be to dismiss only so much of Ms Bridges’ application that relies on contraventions of the FW Act based on her dismissal. That would leave for the Court’s determination any claims Ms Bridges makes under the FW Act that are not based on her dismissal, and any claims Ms Bridges may have which fall within the Court’s accrued jurisdiction for damages for breach of contract.
There is a difficulty, however, in framing an appropriate order. It is difficult, and perhaps not possible, to separate from the Claim those paragraphs or text that only relate to claims under the FW Act based on dismissal. The preferable course is for me not to strike out any part of the Claim, but instead to make a declaration to the effect that the Court does not have jurisdiction to entertain any claim for relief Ms Bridges makes under the FW Act that relies on an allegation that she was dismissed. I will make a declaration to that effect.
Given my conclusion that the Court does not have jurisdiction to entertain Ms Bridge’s claims for relief under the FW Act to the extent they are based on her dismissal, the question whether I should extent the time for Ms Bridges to make her application to this Court does not arise. I propose, therefore, to order that her application in a case be dismissed.
Finally, I propose to list the matter, to the extent it does not relate to claims made under the FW Act based on Ms Norling’s dismissal of Ms Bridges, for directions on a date to be fixed.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 9 February 2016
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