Caroline Alvares Gonzaga v National Peke Centre (Werribee) Pty Ltd
[2023] FWC 2990
•15 NOVEMBER 2023
| [2023] FWC 2990 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Caroline Alvares Gonzaga
v
National Peke Centre (Werribee) Pty Ltd
(C2023/5432)
| COMMISSIONER WILSON | MELBOURNE, 15 NOVEMBER 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objection that the Applicant has not alleged that the dismissal was in contravention of the general protections provisions in the Act – jurisdiction accepted; matter to proceed to conciliation.
Ms Caroline Alvares Gonzaga (the Applicant) has made a general protections application involving dismissal under s.365 of the Fair Work Act 2009 (the Act). The Respondent to the application is National Peke Centre (Werribee) Pty Ltd (the Respondent). The matter was allocated to me on Tuesday, 10 October 2023.
The Respondent objects to Ms Alvares Gonzaga’s application on the ground the Applicant has not indicated in her Form F8 General Protections Application Involving Dismissal which sections of the Act had allegedly been contravened. In the ordinary course this would require the Fair Work Commission (the Commission) to give consideration to whether the application should be dismissed under s.587 of the Act.
For the reasons that follow, I am not satisfied it is appropriate to dismiss the application under s.587 with me being satisfied that the application has been made in accordance with the Act. The matter was decided on the papers given neither party objected to such approach.
RELEVANT LEGISLATION
Section 365 of the Act outlines when the Commission can deal with a general protections application involving dismissal:
“365 Application for the FWC to deal with a dismissal 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 the FWC for the FWC to deal with the dispute.”
Section 365 states that if a person has been dismissed, and the person alleges that the dismissal was in contravention of Part 3-1, he or she may apply to the Commission to ‘deal with the dispute’.
Section 587 of the Act provides as follows:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
The power to dismiss an application is not limited to the grounds listed[1], but cannot be exercised on grounds s.587(1)(b) and (c) where the substantive application is brought under s.365 of the Act. The “power to dismiss a substantive application should only be exercised with caution, not hastily, and where there is a clear basis for doing so”.[2]
The “conclusion that an application “had no reasonable prospect of success” should only be reached with extreme caution in circumstances where the application is manifestly untenable or groundless[3] or so lacking in merit or substance as to be not reasonably arguable[4].”[5] (footnotes in original)
BACKGROUND
Ms Alvares Gonzaga commenced employment with the Respondent as an Allied Health Assistant on 27 July 2023 and her dismissal took immediate effect on 16 August 2023.
Ms Alvares Gonzaga lodged a Form F8 application in the Commission on Tuesday, 5 September 2023. An amended Form F8 was filed in the Commission on Monday, 11 September 2023.
The original application filed on 5 September 2023 was not signed or dated and did not include a response to question 3.2 or question 3.3 which relevantly ask:
“Which section(s) of the Fair Work Act 2009 did the employer contravene when they took, threatened or organised the above actions against you?”
and
“Explain how the actions you have described in question 3.1 have contravened the section(s) of the Fair Work Act 2009 you identified in question 3.2.”
The covering email to the amended Form F8 filed in the Commission on 11 September 2023 provides:
“To whom it may concern,
I accidentally sent my draft Form when i applied on the 5th of September.
Here is the final form , signed and dated .
Please let me know if you need anything else.
Caroline Alvares Gonzaga”.
The amended Form F8 includes additional remedies sought in response to question 2.1, includes a tick box response at question 3.2, and contains a one sentence response to question 3.3. In response to question 3.2 Ms Alvares Gonzaga has selected “s.340 Protection” and in response to question 3.3 “I raised a complaint about my work duties, regarding them not complying with their NDIS standards and I was let go due to this action.”
The Respondent in its Form F8A Response to General Protections Application objects to the application on the ground the Applicant has not alleged that the dismissal was in contravention of the general protections in the Act stating:
“As the applicant clearly states in her application, she was let go as there were 3 complaints against her. Her application also includes her dismissal letter that verifies this.”
The Commission’s usual process with general protections matters is to deal with the dispute by conducting a conciliation conference by a staff conciliator. If it is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful, the Commission will issue a certificate that allows the applicant to commence proceedings in a court (s.368(3)) or by arbitration in the Commission if consent is given by each party (s.369).
Consistent with the Commission’s practice on matters where the Respondent has raised a jurisdictional objection this application bypassed staff conciliation and has been allocated to me. [6]
My Chambers wrote to the parties on Wednesday, 18 October 2023 as set out below:
“The Respondent has raised an objection in the Form F8A on the basis the Applicant has not alleged that the dismissal was in contravention of the general protections in the Fair Work Act 2009.
Noting the Respondent objection, the Applicant has one week to amend her application to properly set out the relevant contraventions of the general protections provisions.
Failing that the Fair Work Commission will give consideration to dismissing the application on the grounds set out by the Respondent.”
Ms Alvares Gonzaga did not file an amended application setting out in more detail the relevant contraventions of the general protections provisions within the timeframe provided.
On Friday, 27 October 2023 my Chambers wrote to parties advising I proposed to determine the jurisdictional objection on the papers unless either party sought to be heard and gave both parties an opportunity to file such written submissions as they wish me to take into account. Neither party sought to be heard nor did either party file any additional material.
CONSIDERATION
The Commission is obliged to perform its functions and exercise its powers in a manner that is fair and just, quick, informal and avoids unnecessary technicalities. It is also guided by the principle that the power to dismiss a substantive application should only be exercised cautiously and sparingly.[7] A cautious approach is said to be necessary because ordering the dismissal of an application would result “in the complete extinguishment of an applicant’s right to have his/her application for relief orders under beneficial legislation, heard and determined according to law”.[8]
The amended Form F8 filed in these proceedings on 11 September 2023 provides at question 3.3 of that Form, which asks the Applicant to “explain how the actions you have described in question 3.1 have contravened the section(s) of the Fair Work Act 2009 you identified in question 3.2.” – in other words, how did the action of the employer contravene s.340 of the Act, that “I raised a complaint about my work duties, regarding them not complying with their NDIS standards and I was let go due to this action.”
I am satisfied that the application has been made in accordance with the Act. As set out above, section 365 of the Act allows a person to apply to the Commission to deal with a dismissal dispute if; (a) the person has been dismissed; and (b) the person alleges that they were dismissed in contravention of Part 3-1.
Section 340 of the Act provides that a person must not take adverse action against another because they have a workplace right, have or have not exercised the right or may propose to do so. Section 341 then defines the meaning of a “workplace right”:
“341 Meaning of workplace right
Meaning of workplace right
(1)A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c)is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee—in relation to his or her employment.
Meaning of process or proceedings under a workplace law or workplace instrument
(2)Each of the following is a process or proceedings under a workplace law or workplace instrument:
(a)a conference conducted or hearing held by the FWC;
(b)court proceedings under a workplace law or workplace instrument;
(c)protected industrial action;
(d)a protected action ballot;
(e)making, varying or terminating an enterprise agreement;
(f)appointing, or terminating the appointment of, a bargaining representative;
(g)making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
(h)agreeing to cash out paid annual leave or paid personal/carer’s leave;
(i)making a request under Division 4 of Part 2‑2 (which deals with requests for flexible working arrangements);
(j)dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k)any other process or proceedings under a workplace law or workplace instrument.
Prospective employees taken to have workplace rights
(3)A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.
Note: Among other things, the effect of this subsection would be to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement.
Exceptions relating to prospective employees
(4)Despite subsection (3), a prospective employer does not contravene subsection 340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earnings.
(5)Despite paragraph (1)(a), a prospective employer does not contravene subsection 340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part 2‑8 or 6‑3A (which deal with transfer of business).”
The Full Court of the Federal Court of Australia in Alam v National Australia Bank Limited, endorsed the approach taken in earlier cases that a complaint or inquiry “in relation to” a person’s employment “means that there must be a relationship between the subject matter of the complaint and the complainant’s employment”[9]
I accept that the Applicant’s case is not much more than a single sentence and that the Respondent may be able to rebut the presumption in s.361 that actions alleged in an employee’s general protections application are presumed to have been taken for the alleged reason. However those are not matters engaged by this decision.
Instead the matter requiring determination in this decision is whether Ms Alvares Gonzaga’s application should be dismissed for the reasons set out in s.587.
I am not satisfied it should be so dismissed as Ms Alvares Gonzaga has claimed that she was dismissed after raising a complaint about her work duties and whether they complied with applicable NDIS standards. Such satisfies the requirement in Alam that there be a relationship between the subject of her complaint and her employment in the sense of being a complaint about the things she was required to do as part of her employment. Ms Alvares Gonzaga is plainly able to raise a case about that matter, and so it would be inappropriate for me to find that her case was manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable. Her application states clearly that she makes the application under s.340 claiming she has been dismissed because she held a workplace right, being the right to complain about her duties and their consistency with the funder’s requirements. I am satisfied those matters allow a finding that Ms Gonzaga’s application was made in accordance with the Act.
CONCLUSION
I am not satisfied that I should exercise my discretion to dismiss Ms Alvares Gonzaga’s application under s.587 of the Act.
The application will now proceed to conciliation before me to be held on Tuesday, 12 December 2023 at 3 PM.
COMMISSIONER
[1] See Erika Marquez Acevedo v Mohammed Nisreen Majeed t/a New Multimedia Interactive[2020] FWC 6625.
[2] Nick Williams v Sydney Gay & Lesbian Business Association t/a Sydney Gay & Lesbian Business Association[2019] FWC 4399.
[3] Deane v Paper Australia Pty Ltd, PR932454, [7] and [8].
[4] A Smith v Barwon Region Water Authority [2009] AIRCFB 769, [48].
[5] Baker v Salva Resources[2012] FWAFB 4014.
[6] Following the decision in Lipa Pharmaceuticals Ltd v Marouche[2023] FWCFB 101 the Commission changed its case management practices from 1 June 2023 for General Protections cases involving dismissal where certain jurisdictional issues arise.
[7] Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925.
[8] Ibid, [31].
[9] [2021] FCAFC 178 (2021) 310 IR 71, [74], with reference to Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534; (2017) 275 IR 285, [33] and in turn Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; 243 IR 468.
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