Christopher Gray v Rimfire Asia Pacific Pty. Limited, Adam Monaco, Raymond Richards
[2024] FWC 2629
•24 SEPTEMBER 2024
[2024] FWC 2629
The attached document replaces the document previously issued with the above code on 24 September 2024.
Typographical error to application lodgement date rectified.
Associate to Commissioner Perica
Dated 26 September 2024
| [2024] FWC 2629 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Christopher Gray
v
Rimfire Asia Pacific Pty. Limited, Adam Monaco, Raymond Richards
(C2024/2919)
| COMMISSIONER PERICA | MELBOURNE, 24 SEPTEMBER 2024 |
Application to deal with contraventions involving dismissal
Background
On 5 May 2024, Mr. Christopher Gray filed an application under s 365 of the Fair Work Act 2009 alleging he was dismissed from his employment with Rimfire Asia Pacific Pty. Limited (Rimfire) in contravention of Part 3-1, and named Mr. Adam Monaco and Mr. Raymond Richards as additional respondents
On 9 July 2024, this matter was conciliated by a staff conciliator at 12:15 PM. In his witness statement filed in this proceeding, Mr. Monaco, a respondent to the proceeding gave evidence that the conciliation conference “went for a few hours”.
At 4:32 PM that day, Mr. Gray and Rimfire were each sent a copy of terms of settlement by the staff conciliator under cover of a letter dated 9 July 2024. That letter included the following:
“Thank you for your participation in today’s conciliation ... I confirm that you reached a settlement agreement, and I attach the terms of settlement.
As this is an agreement reached between the parties, you must send your signed terms of settlement agreement, you must send your signed terms to the other party.”
At 9:29 AM on 11 July 2024, Rimfire sent its executed copy to the staff conciliator requesting it be sent it Mr. Gray. The staff conciliator then forwarded the Rimfire executed copy to Mr. Gray.
At 10:56 AM on 11 July 2024, Mr. Gray sent an email to the conciliator stating, “I have taken the opportunity to reflect on our meeting, the Offer, and the Terms and Conditions attached to the Offer. The Offer is declined and I will not be proceeding to sign the document forwarded to me.”
The matter was allocated to my Chambers. I conducted a mention on 1 August 2024. I issued directions for the filing of material on the issue of whether a binding agreement was reached. Both parties filed material, and the matter was heard on 20 September 2024. Mr. Gray appeared for himself. Mr. Monaco and Mr. Richards appeared for Rimfire and themselves. Mr. Gray asserts no agreement had been reached. Mr. Monaco asserts a binding agreement was made.
Does the Commission have jurisdiction to decide whether an agreement has been reached to settle a general protections matter involving a dismissal?
While preparing this decision, I have come to the view that I have no jurisdiction to decide the question of whether a binding settlement has been made. The jurisdiction of the Commission to deal with a s 365 application is strictly limited. The powers of the Commission to deal with this type of application under s 368 are:
368Dealing with a dismissal dispute (other than by arbitration)
(1)If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).
Note:The FWC 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 the FWC might make is that an application be made under Part 3‑2 (which deals with unfair dismissal) in relation to the dispute.
(2)Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).
Note:For conferences, see section 592.
(3)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, then:
(a)the FWC must issue a certificate to that effect; and
(b)if the FWC considers, taking into account all the materials before it, that arbitration under section 369, 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.
(4)A general protections court application is an application to a court under Division 2 of Part 4‑1 for orders in relation to a contravention of this Part.
The limited nature of this jurisdiction was the subject of judicial review by the Full Federal Court in Coles Supply Chain Pty. Ltd v. Milford.[1] At paragraph 68, the Court stated:
“To summarise, when an application is purportedly lodged under s 365 it is open to a respondent to assert that there has been no dismissal, so giving rise to a dispute on that question. Such a dispute falls to be determined not under s 368 but under s 365 itself. It is an antecedent dispute going to the entitlement of the applicant to apply. It is also open to a respondent to admit that a dismissal has occurred but dispute that the dismissal took effect within 21 days of the date that the application was filed. Such a dispute may give rise to an issue under s 366(1), involving as it does a question as to whether it is necessary for the FWC to determine whether more time should be “allowed” for the application to be made under s 365. That too is an antecedent dispute, going to the question of whether an application has been made. It is a dispute that must be resolved before the powers conferred by s 368 can be exercised at all.”
Other than the two “antecedent questions” referred to in Milford, the only other powers the Commission has is to convene a conference, to issue a certificate, or conduct an arbitration with the consent of the parties. I adopt the analysis of Deputy President Boyce in Monica Nash v St Vincent's Hospital Sydney Limited where he states:[2]
“Aside from consent arbitration, the Commission’s only role in a general protections involving dismissal application made under s.365 of the Act is to conduct a conference between the relevant parties (so as to assist them in attempting to resolve the unlawful termination application by agreement), or issue a certificate if a resolution is unable to be agreed (a certificate is a prerequisite to being able to progress a claim onto an eligible court for judicial determination).That said, the power to conduct such a conference and issue a certificate is provided for under the Act, and the Commission has no jurisdiction to conduct a conference, or issue a certificate post that conference (where resolution is unable to be reached), unless a ‘valid’(or within jurisdiction) general protections involving dismissal application has been filed. It is for the Commission to resolve any disputes or issues as to its jurisdiction in this regard for itself.”
Unlike the unfair dismissal jurisdiction, which includes the power to hear and determine matters, the Commission’s powers to deal with a dismissal dispute brought under s 365 are strictly limited to the antecedent questions and the matters prescribed in s 368.
Given these limitations, I do not consider I have the power to determine whether the parties have entered a binding settlement agreement to resolve a general protections dismissal dispute. It falls to the Federal Court or the Federal Circuit Court to resolve such a question if a proceeding is commenced in either of those Courts.
Disposition of this matter
The parties to this dispute furiously disagree on the question of whether a binding settlement agreement has been made. Rimfire are unlikely to offer more than the settlement figure in the purported agreement and Mr. Gray will not accept the settlement figure which he says was “offered” to him. I am therefore satisfied that all reasonable attempts to resolve the dispute have or are unlikely to be successful.
Given I have reached the requisite satisfaction under s368(3), I will separately issue a certificate in this matter today. Mr. Gray then has 14 days to commence a proceeding in the Federal Circuit Court or the Federal Court.
COMMISSIONER
Appearances:
Mr. Christopher Gray, the Applicant, for himself.
Mr. Adam Monaco on behalf of the Respondent.
Hearing details:
20 September 2024
Microsoft Teams
[1] [2020] FCAFC 153.
[2] [2024] FWC 1583, [18].
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