Chacko v Compass Group (Australia) Pty Ltd
[2010] FWA 7418
•1 OCTOBER 2010
[2010] FWA 7418 |
|
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Roy Chacko
v
Compass Group (Australia) Pty Ltd
(C2010/4416) (C2010/4726)
COMMISSIONER HAMPTON | ADELAIDE, 1 OCTOBER 2010 |
Applications to deal with general protections dispute - original application lodged with unfair dismissal application and then “abandoned” - unfair dismissal application then subsequently also discontinued - further general protections application made beyond time - application to withdraw election in relation to original general protections application made in the alternative - whether leave can and should be granted to reinstate the original application - whether an extension of time should be permitted for the filing of the fresh application.
INTRODUCTION AND CASE OUTLINE
[1] The matter arises in the context of two applications made by Mr Roy Chacko (the applicant) pursuant to s.365 of the Fair Work Act 2009 (the Act) seeking that Fair Work Australia deal with a dispute involving a dismissal. The respondent employer is Compass Group (Australia) Pty Ltd (the respondent).
[2] The applicant was dismissed by the respondent on the grounds of alleged redundancy on 4 June 2010. He filed an application pursuant to s.365 of the Act on 26 July 2010 (the original s.365 application). He also filed an application for an unfair dismissal remedy pursuant to s.394 of the Act (the unfair dismissal application) at the same time.
[3] The applicant was advised by an officer of Fair Work Australia that the Act prevented a person from simultaneously making multiple applications in relation to dismissal from employment and that it was necessary for him to decide which application he intended to proceed with. He was also advised that in the absence of advice by a nominated date, Fair Work Australia would assume that he wished to proceed with the original s.365 application.
[4] On 11 August 2010, the applicant advised Fair Work Australia that he wished to proceed with the unfair dismissal application.
[5] It appears that the unfair dismissal application was served upon the respondent however the original s.365 application was not. 1
[6] The respondent filed a response to the unfair dismissal application on or about 18 August 2010 and this included an objection to the extension of time and a jurisdictional objection (claiming there was a genuine redundancy). 2
[7] On 24 August 2010, the applicant received industrial advice from the Liquor, Hospitality and Miscellaneous Union (the LHMU) and having done so gave instructions to withdraw the unfair dismissal application and pursue the general protections matter.
[8] Applications and notices were lodged by the LHMU with Fair Work Australia on 25 August 2010 as follows:
- A notice of discontinuance in relation to the unfair dismissal application;
- An application for directions seeking that the applicant be permitted to withdraw his election to “discontinue” the original s.365 application; and
- A new application pursuant to s.365 of the Act (the fresh s.365 application).
[9] As a result, the applicant now seeks to be granted an extension of time for the lodgement of the fresh s.365 application or in the alternative that he be permitted in effect to withdraw the election to forgo the original s.365 application.
[10] The respondent opposes both applications.
[11] Following the filing of submissions and other materials in support of their respective positions I have decided, with the concurrence of the parties, to determine the two procedural applications based upon the materials as filed. 3
THE APPLICATION TO WITHDRAW THE ELECTION NOT TO PROCEED WITH THE ORIGINAL SECTION 365 APPLICATION
[12] Although the extension of time request is the primary application made by the applicant, it is convenient to initially consider some of the issues arising from the original s.365 application. This is so because if the request to “re-open” is granted, the fresh s.365 application becomes unnecessary. Further, the issue of prejudice to the parties as arises under s.366(2) of the Act requires that I also consider this aspect of the matters before me.
[13] The applicant, who is now represented by Mr Love of the LHMU, contends that the objects of the Act, and s.3(e) in particular, the “equity and good conscience” provisions of s.578 and the procedural powers of s.589 of the Act provides Fair Work Australia with the power to re-open the original s.365 application.
[14] The respondent, through its National Workplace Relations Manager Mr Blyth, contends that the effect of s.725 of the Act is that Fair Work Australia has no jurisdiction or power to make the order sought. That is, the original s.365 application was void ab initio (null and void from the beginning) and not just from the point that the applicant elected not to proceed with it.
[15] The respondent also argued that the objects and equity and good conscience provisions of the Act could not be utilised to create a power where none existed. It was said that in this case there was no matter to reopen in any event.
[16] The objects and the provisions of s.578 of the Act inform and guide the interpretation of the Act, the exercise of Fair Work Australia’s jurisdiction and the performance of its functions, but cannot of themselves provide powers. As a result, I must consider whether I have the power to grant the outcome sought by the applicant. This involves a consideration of the procedural powers of Fair Work Australia and the impact of s.725 of the Act in the context of the election made by the applicant.
[17] Section 725, 727 and 729 of the Act provide relevantly as follows:
“725 General rule
A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.
...
727 General protections FWA applications
(1) This section applies if:
(a) a general protections FWA application has been made by, or on behalf of, the person in relation to the dismissal; and
(b) the application has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction; or
(iii) resulted in the issue of a certificate under section 369 (which provides for FWA to issue a certificate if FWA is satisfied that all reasonable attempts to resolve a dispute have been, or are likely to be, unsuccessful).
(2) A general protections FWA application is an application under section 365 for FWA to deal with a dispute that relates to dismissal.
...
729 Unfair dismissal applications
(1) This section applies if:
(a) an unfair dismissal application has been made by the person in relation to the dismissal; and
(b) the application has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction; or
(iii) failed because FWA was satisfied that the dismissal was a case of genuine redundancy.
(2) An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal.”
[18] These provisions are clearly directed at preventing applicants from double dipping or making multiple applications arising from the single dismissal. The provisions are however significantly qualified by the caveats in each case.
[19] The purpose of the provisions was explained in the following terms in the Explanatory Memorandum provided during the Parliamentary process: 4
“2707. This Subdivision is intended to prevent a person ‘double-dipping’ when they have multiple potential remedies relating to a dismissal from employment by seeking to limit a person to a single remedy.
2708. Clauses 726 to 732 set out all of the potential remedies that may apply. Clause 725 is the key operative provision. It provides that if a person has made an application that falls within any of clauses 726 to 732 then they may not bring an application that falls within any of the other clauses.
2709. Each of clauses 726 to 732 deals with different potential remedies. They each set out particular circumstances in which a person may not be prevented from making an application under one of the clauses even where they have initiated an application under another clause.
2710. In all cases the anti-double dipping provisions will not apply where the initial application has:
• been withdrawn; or
• failed for want of jurisdiction.
2711. This is intended to ensure that a person does not miss out on a remedy because they were unable to make a competent application for another remedy or where they have realised another remedy may be more appropriate than the remedy they initially sought.”
[20] The provisions are written on the basis that applications are lodged sequentially. In this case both the original s.365 application and the unfair dismissal application were lodged together. Applied in the manner contended by the respondent, this would mean neither application was valid. However, a more purposive application of these provisions is that the applicant could not proceed with both applications and must make an election. Having done so, he was then precluded from making the original s.365 application by operation of s.725 of the Act.
[21] On that basis, the unfair dismissal application was itself valid, but was then withdrawn by the applicant. I add that in light of s.725 of the Act and given the fact that the unfair dismissal application was withdrawn, the applicant was not prevented from making the fresh s.365 application in this matter. I also note that s.725 of the Act is not intended to deal with circumstances whereby an applicant makes multiple applications of the same nature. Other considerations apply to that course of action in this matter.
[22] I turn now to the powers available to Fair Work Australia to “re-open” a matter that was precluded by reason of the applicant’s election and the operation of s.725 of the Act.
[23] There is no express power under the Act to permit Fair Work Australia to in effect, re-open a matter that has been precluded as a result of the operation of the Act. The Act does provide extensive procedural powers including in s.591 confirming that the Tribunal is not bound by the rules of evidence or procedure, and s.586 being the power to amend applications and documents. The Act in s.595 however also constrains the ability of Fair Work Australia to deal with disputes to circumstances where it is expressly authorised to do so under or in accordance with another provision of this Act. 5
[24] I do not consider that Fair Work Australia has the power to “reopen” a matter where the application in question has been precluded by the Act as a consequence of s.725. This is the effect of the request that I permit the applicant to withdraw his election. Even if such a power existed, I do not consider that the exercise of any such power would be appropriate to attempt to enliven an application in these circumstances. Such an approach would lead to uncertainty and abuses of processes that are closely regulated by the terms of the Act.
THE EXTENSION OF TIME TO LODGE THE FRESH S.365 APPLICATION
[25] Section 366 provides as follows:
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.
[26] The fresh s.365 application was filed 22 days beyond the 60 day period established by the Act and an extension of time is required for the application to be properly made.
[27] The applicant contends that he was ignorant of his rights under the Act and that this was demonstrated by the filing of both original applications and the fact that the unfair dismissal application was filed some 38 days beyond the time limit in that matter. Having taken advice, he then acted quickly to make the fresh s.365 application and the other procedural applications.
[28] The applicant further contends that he took action to dispute the dismissal and that there was little if any prejudice to the respondent. In terms of the merit of the application, the applicant contends that his dismissal followed him raising various employment concerns with the respondent and in light of the reverse onus of proof in general protections matters (s.361 of the Act) he had a strong case.
[29] The applicant argued that in all of the circumstances, there existed exceptional circumstances to allow Fair Work Australia to grant an extension of time in this matter.
[30] The respondent for its part contends that the applicant has not demonstrated that exceptional circumstances existed in this matter as contemplated by the Act.
[31] That is, it was said that the unfair dismissal application was already six weeks out of time when lodged and the fact that it had now been withdrawn without testing the extension of time or other jurisdictional challenges was relevant. Further, it was said to have been open to the applicant to change his mind and make a general protections application before the “60 day limit” imposed by s.366 of the Act.
[32] Consistent with that argument, the respondent contended that there was no reasonable explanation for the delay. That is, in this case any ignorance of the law was said to not favour an extension. The applicant was not generally ignorant of the law as he has made both the original s.365 application and the unfair dismissal application and made a choice when confronted with the need to choose between the applications.
[33] The respondent also contended that until the LHMU filed the applications now being considered, it was unaware of the original s.365 application. Even though it was on notice that the dismissal was being contested (as an unfair dismissal) it had filed a defence and reasonably expected that the jurisdictional matters in that case would bring the issues to an end.
[34] The respondent also argued that the “anti-double dipping” provisions of s.725 of the Act were not intended to provide a basis upon which a person could contend for exceptional circumstances and to allow the extension in this case would be an abuse of process.
[35] As to the merits of the s.365 application itself, the respondent has provided a strong and apparently robust denial of the allegation that the dismissal was in any way influenced by a relevant workplace right.
Are there special circumstances so as to warrant an extension of time in this matter?
[36] At the outset I confirm that for reasons outlined earlier, s.725 of the Act does not of itself prevent the making of the fresh s.365 application.
[37] Section 366 of the Act provides Fair Work Australia with a discretion to extend the time for lodgement beyond the 60 day period where it is satisfied that exceptional circumstances exist to warrant that action. In considering whether exceptional circumstances exist for this purpose, I am required to take account of the considerations outlined in paragraphs (a) to (e) of s.366(2) of the Act. I have done so in this matter.
[38] I note that a recent Full Bench dealing with a similar provision (s.394(3) of the Act) referred to the ordinary dictionary meaning of “exceptional” by reference to the concepts of “forming an exception or unusual instances; unusual; extraordinary”. 6 I understand by implication from the approach taken in that decision, and by the statute itself, that it is the considerations cited in s.366 which must inform that assessment.7 In that light, the circumstances need not of themselves be unique or unprecedented.8
[39] The applicant must convince Fair Work Australia to exercise the discretion to extend time for the lodgement of the fresh s.365 application.
[40] Although the statutory discretion requires the considerations relating to the existence of exceptional circumstances to be assessed in an overall manner and these are interrelated, it is convenient to discuss the issues under the various factors raised by the respective subsections.
The reason for the delay
[41] The delay in lodgement of the fresh s.365 application is some 22 days beyond the 60 day period. That period ended on 3 August 2010 and the application was lodged on 25 August 2010.
[42] The process leading to the making of the application at that time has been outlined earlier in this decision. The fact that the election made by the applicant was without taking advice may be a consideration. However, this is not a case where the applicant was unaware of the right to bring the matters to Fair Work Australia. In that sense the circumstances here are not unusual.
[43] In essence, the applicant lodged the original s.365 application and elected not to have it proceed in light of the operation of the Act. He then apparently proceeded with the unfair dismissal application until such time as the formal objections from the employer became clear. The applicant then sought advice and changed his mind.
[44] There is no suggestion that the applicant could not have sought advice when required to make the earlier election or in relation to his applications more generally prior to 4 August 2010. Indeed, having being advised of the need to make an election on 27 July 2010, the applicant took until 11 August 2010 to advise Fair Work Australia that he wished to proceed with the unfair dismissal application.
[45] As the reasons for delay are connected with the actions taken by the applicant to dispute the dismissal, I will deal further with this consideration below.
[46] I do however note that the applicant did act promptly when he became aware of the respondent’s jurisdictional challenge to the unfair dismissal application and the LHMU acted promptly on his behalf when approached for advice.
Any action taken by the person to dispute the dismissal
[47] The applicant made both the original s.365 application and the unfair dismissal application within some eight weeks of the dismissal. The unfair dismissal application was served and then subsequently withdrawn in the context of the fresh s.365 application. The respondent has been on notice since that time that the applicant contested the dismissal; albeit in the form of an unfair dismissal application that had jurisdictional hurdles.
[48] This latter consideration supports the exercise of discretion in this matter. However, the making and abandonment of the unfair dismissal application without awaiting a decision on the extension of time in that matter (which was required in this matter in any event) and without arguing the jurisdictional objection (which is also in contention here as a result of the dispute as to the alleged reasons for dismissal) are considerations that militate against the finding of relevant special circumstances.
Prejudice to the employer (including prejudice caused by the delay)
[49] The respondent has not expressly raised matters of material prejudice in this context. This is a relevant consideration, however the absence of such prejudice is not in itself a reason to grant an extension. 9
The merits of the (general protections) application
[50] The merits of the substantive application are strongly contested by both parties.
[51] The consideration of the merit of the application in this context is limited to the prima facie merits. It is not appropriate to canvass and attempt to resolve the substantive application as part of this exercise. 10
[52] It is sufficient to indicate for present purposes that the applicant has an arguable case in relation to the merit of the general protections application and the fact that he would be denied the opportunity to test his case forms part of the consideration of the circumstances in this matter, along with the other factors cited in s.366(2) of the Act.
Fairness as between the person and other persons in a similar position
[53] This consideration as it applies to other employees of the respondent does not arise in this matter. To the extent that this consideration contemplates the circumstances of employees more broadly, 11 this would be of little assistance in this matter. The approach as taken by Fair Work Australia in other cases involving applicants that had taken applications of one sort and then filed a different application seeking an extension of time, varies, as you would expect, depending upon the circumstances.12 Whilst the principles utilised may be apposite, these matters do not concern cases where an application of the same nature has in effect been re-lodged in circumstances similar to this matter.
CONCLUSIONS
[54] In reaching my conclusions in this matter, I have also had regard to the import of s.368 of the Act which provides as follows:
“368 Conferences
(1) If an application is made under section 365, FWA must conduct a conference to deal with the dispute.
Note 1: For conferences, see section 592.
Note 2: FWA may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that FWA might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute.
(2) Despite subsection 592(3), FWA must conduct the conference in private.”
[55] It is apparent to me that this provision presupposes that a valid application has been made. That is, the obligation for Fair Work Australia to conduct the conference will apply where an application has been made within the 60 day limit or where an extension of time has been granted pursuant to s.366(2) of the Act.
[56] For reasons outlined earlier, I do not consider that it is open to me (or appropriate in any event) to attempt to enliven the original s.365 application.
[57] In terms of the application to extend time for the lodgement of the fresh s.365 application, in my view, after taking into account the factors cited in s.366(2) of the Act, exceptional circumstances within the meaning of the Act have not been established. That is, I am not satisfied that there are relevant exceptional circumstances such as to enable or warrant the exercise of the discretion to allow an extension of the timeframe for the making of the fresh s.365 application.
[58] Accordingly, there is not a valid application before Fair Work Australia and this file will be closed.
COMMISSIONER
Written submissions:
2010
14 September (Applicant)
21 September (Respondent)
1 Respondent’s material filed 17 September 2010 at paragraph 20 to 24.
2 Section 385(d) of the Act represented a jurisdictional hurdle if the respondent could demonstrate a genuine redundancy within the meaning of the Act.
3 Neither party sought that a hearing be conducted in this matter.
4 Explanatory Memorandum to the Fair Work Bill 2008.
5 General protections matters are treated as disputes by the Act.
6 Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Janette Smithers [2010] FWSFB 7251, 17 September 2010, per Acton SDP, Cartwright SDP and Thatcher C.
7 This is reinforced in the Explanatory Memorandum to the Fair Work Bill 2008 at paragraph 1480.
8 Parker v Department of Human Services[2009] FWA 1638, per Whelan C.
9 Brodie-Hanns v MTV Publishing Ltd, (1995) 67 1R 298 at 300, 31 October 1995, per Marshall J.
10 Although also determined in a slightly different statutory context the decision in H Kyvelos V Champion Socks Pty Limited AIRC Print T2421, 10 November 2000, per Giudice J, Acton SDP, Gay C remains apposite.
11 This factor as referred to in Brodie-Hanns v MTV Publishing Ltd (cited in the Explanatory Memorandum) would appear to be capable of having a broader application than only employees within the business concerned. However, in my view it will rarely be of significant assistance if applied more broadly given that each case must be considered on its facts.
12 These include Trudgett v Training Aids Australia Pty Ltd[2010] FWA 2235, 22 March 2010 per Raffaelli C and Lane v Kangaroo Island Dive and Adventures Pty Ltd[2010] FWA 3939, 25 May 2010 per O’Callaghan SDP.
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