Chun Cheung Hui v Evanita Pty. Ltd. T/A Paylink Business Services

[2017] FWC 5815

[2017] FWC 5815

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Chun Cheung Hui
v
Evanita Pty. Ltd. T/A Paylink Business Services
(U2017/10189)

DEPUTY PRESIDENT CLANCY MELBOURNE, 6 NOVEMBER 2017

Application for an unfair dismissal remedy – application to amend unfair dismissal application to a general protections application – substance rather than form – in substance a general protections application – correction of irregularly made general protections application – s.586.

[1] On 19 September 2017, Mr Chun Cheung Hui lodged a Form F2 – Unfair Dismissal Application (the Unfair Dismissal Application), pursuant to s.394 of the Fair Work Act 2009 (the Act). Mr Hui filed the Unfair Dismissal Application using the Fair Work Commission’s Online Lodgment Service and attached numerous annexures including submissions, his letter of engagement and correspondence with Evanita Pty Ltd (Evanita) pertaining to his commission payments.

[2] On 21 September 2017, parties were sent a Notice of Listing, indicating the matter was listed for conciliation on 16 October 2017.

[3] On 27 September 2017, Mr Hui sent email correspondence, requesting the Commission exercise its discretion under s.586 of the Act to amend the Unfair Dismissal Application to a general protections application involving dismissal. The following day, I caused correspondence to be sent to Evanita, giving it an opportunity to provide submissions as to whether the Commission should exercise its discretion pursuant to s.586(b) of the Act to waive the irregularity in the form in which Mr Hui’s application was made. Mr Scott Lawes, Principal at Evanita, filed its response on 6 October 2017.

[4] On 16 October 2017, the conciliation took place, however the matter did not resolve. So I will now consider Mr Hui’s application to amend the Unfair Dismissal Application to a general protections application involving dismissal.

Legislation

[5] Section 586 of the Act provides:

“586  Correcting and amending applications and documents etc.

The FWC may:

(a)  allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

(b)  waive an irregularity in the form or manner in which an application is made to the FWC.”

Submissions of Mr Hui

[6] Mr Hui submitted that on receiving legal advice from Legal Aid Queensland, it was brought to his attention that he had submitted the wrong application for his matter. Mr Hui said he had intended to submit a Form F8 – General protections application involving dismissal and it was always his intention to make a general protections application rather than an unfair dismissal application. Mr Hui said he was attempting to make a general protections application pursuant to s.340 and s.341 of the Act and that he had made it clear he was not given a reason for dismissal and believed he had been dismissed because he exercised a workplace right. Mr Hui drew the Commission’s attention to the following in the Unfair Dismissal Application, a section of his response to the question ‘why was the dismissal unfair?’:

“I was exercising a workplace right to enquire about my July’s commission payment. Since I received my period ending 1/8/2017 payslip, I then started to enquire about the commission matter with Michelle (manager) and Sue (company accountant) for the whole [of] August 2017.”

[7] Mr Hui said he was only able to obtain legal advice after the 21-day time limit expired and so lodged the Unfair Dismissal Application to the best of his knowledge, though on becoming aware that he had lodged the incorrect form, submitted he made efforts to amend his application without delay.

[8] Mr Hui said he has a “limited understanding of English and the general protections regime” which contributed to him lodging the incorrect form. Mr Hui noted that on his Unfair Dismissal Application, he said he required a Chinese Cantonese interpreter to attend any proceedings.

[9] Mr Hui submitted his Unfair Dismissal Application was ‘in substance’ a general protections application made within time under s.365 of the Act, but on the wrong form. He relied on the Full Bench decision in Hambridge v Spotless Facilities Services Pty Ltd (Hambridge). 1Mr Hui also submitted “the procedural rules should be the master and not the servant of the administration of justice” referencing Fernance v Nominal Defendant.2 Mr Hui, referring to various cases,3 contended it has been recognised that the Rules of the Court should not become an “instrument of tyranny.”

[10] Mr Hui noted that he had the assistance of Legal Aid Queensland in drafting his submissions.

Submissions of Evanita

[11] Evanita submitted the Commission must not accede to Mr Hui’s application to amend the Unfair Dismissal Application pursuant to s.586(b) of the Act as it does not have the power to do so. Evanita relied on the Full Bench decision of Ioannou v Northern Belting Services Pty Ltd (Ioannou). 4 I have had regard to that decision and the particular paragraphs highlighted by Evanita.

[12] Evanita broadly contended the Commission is obliged to follow a Full Bench decision and noted the following extract from BRP Modular Pty Ltd v AMWU: 5

“Unless a previous case is distinguished or expressly overruled by a higher authority or on full reconsideration, it should be followed… Full Bench interpretations should be followed by individual Commission members.”

[13] Regarding Hambridge, Evanita submitted that case does not depart from Ioannou and does not provide support for Mr Hui’s application as the facts are distinguishable. It also submitted that the matters asserted by Mr Hui in his submissions “do not meet the high bar set by the Full Bench in Hambridge to demonstrate what his application actually was and what the Applicant’s real intention was.” Evanita contended that it is the objective facts in the Unfair Dismissal Application which should be reviewed and not Mr Hui’s more recent assertions about his intentions, which were drafted with the assistance of legal advisors.

[14] Evanita submitted it is clear from the content of the Unfair Dismissal Application that Mr Hui had researched the unfair dismissal provisions in the Act or obtained legal advice about those provisions, that Mr Hui was aware of the procedural and substantive elements of the unfair dismissal provisions and took steps to address those provisions in the Unfair Dismissal Application. Evanita submitted Mr Hui “cannot use s.586 to avoid the consequences of his decision” and his only alternative is to withdraw the Unfair Dismissal Application and file a new general protections application.

[15] Evanita made the following submissions as to content within Mr Hui’s Unfair Dismissal Application which make it “impossible for the Commission to conclude that his sole genuine intention was to file a general protections application:”

• ‘Remedy’ section – Mr Hui identified he wanted to be paid 26 weeks compensation, confirming he was aware of the cap on compensation for unfair dismissal claims set out in s.392 of the Act;



• Mr Hui makes reference to his employment having been on a ‘regular and systematic basis’, confirming his awareness of the requirements in s.384 of the Act (a section relevant to unfair dismissals);



• The Unfair Dismissal Application is headed ‘Form F2 – Unfair Dismissal Application’ and is followed by ‘This is an application to the Fair Work Commission for an unfair dismissal remedy in accordance with Part 3-2 of the Fair Work Act 2009’;



• Mr Hui responded ‘no’ to the question, ‘have you made a claim to the Commission or to any other organisation regarding your dismissal (e.g. a general protections application)?’;



• The Unfair Dismissal Application demonstrates strong English language skills, which were required in his position as a direct customer service officer, dealing with senior managerial and human resource staff;



• Mr Hui made a range of complaints as to why the termination of his employment was unfair which are incompatible with an adverse action application; and



• The email annexures demonstrate that Mr Hui’s complaint was that he had been unfairly deprived of his commission payment which he was pursuing through the Unfair Dismissal Application.

Principles

[16] The Full Bench in Ioannou considered an application to allow an amendment to an application made under s.394 of the Act so that it may proceed as a general protections application under s.365 of the Act. It determined “that the power in s.586 of the Act does not allow the Commission to make the orders sought by the applicant to amend an unfair dismissal application so that it becomes a general protections application.” 6 The Full Bench went on to say:

“…the power in s.586 of the Act cannot be used to allow an amendment to an application that fundamentally changes the kind of application that was originally made. The amendment sought by the applicant requires a fundamental change to the kind of application originally made, by transforming an unfair dismissal application into an application under s.365, and might allow this to be done without the applicant meeting the procedural and other requirements set out in the Act for making of a general protections application.” 7

[17] In having regard to the fundamental differences between an unfair dismissal application and general protections applications, the Full Bench said it had “serious reservations whether the power in s.586 of the Act can be relied upon to convert an unfair dismissal application into a general protections application” 8 and that s.586 does not “enable the Commission to “correct” or “amend” an application made under one type of statutory provision so that it becomes an application under a fundamentally different provision.”9

[18] The Full Bench also said having regard to the multiple actions provisions in the Act, any use of the power under s.586(a) of the Act to convert an application is not permissible 10 as s.725 of the Act “operates to preclude the applicant from bringing a general protections application in circumstances where there is an extant s.394 application before the Commission.”11

[19] In the recent Full Bench decision of Hambridge, an appeal from an unfair dismissal extension of time decision was considered in circumstances where the unfair dismissal application (the second application) was filed late because the Applicant had originally filed a general protections application (the first application). The Full Bench described the events as follows:

“The first application was sent as an attachment to an email sent by Mr Hambridge which was headed “Unfair Dismissal Claim Application” and said “Please see attached F8 application for unfair dismissal lodged by Liam Hambridge against Spotless Pty Ltd. …In response to the request in the form to “Describe the actions of the Respondent that have led you to make this application” (paragraph 3.1), Mr Hambridge set out in detail what may be characterised as alleged unfair treatment by Spotless, but did not allege he had been dismissed for a prohibited reason.” 12

[20] In the course of the hearing before the Full Bench an additional legal matter arose and the “legal question was whether the Commission had the power under s.586 of the FW Act to allow a correction or amendment to Mr Hambridge’s first application so that it was brought using the correct form, or to waive Mr Hambridge’s error in using the wrong form as an irregularity.” 13

[21] The Full Bench found the “critical factual consideration…is the nature of the first application…” 14 It held the Deputy President at first instance was correct in finding that the Applicant intended to make an unfair dismissal application but used the wrong form and the consequence of this was the Deputy President was in error treating the first application as a general protections application, rather than an unfair dismissal application using the wrong form. The Full Bench said the requirement in s.577(b) of the Act operates “to direct the Commission to look at the substance of the first application, not the form that happened to be used to make it.”15 The finding of the Full Bench was:

“In substance, we consider that it was an unfair dismissal application: it was intended to be one, it was described as one in Mr Hambridge’s covering email, and its contents were concerned with contentions of unfairness in the dismissal rather than any cause of action for a contravention of Pt.3-1 of the FW Act. It must be acknowledged that Mr Hambridge attempted in the first application to respond to requests and questions concerning the general protections provisions of the FW Act, but it is apparent that he did so in an endeavour to complete a form which he understood at the time to be for an unfair dismissal remedy application.” 16

[22] As to reliance of Spotless on Ioannou, the Full Bench found this was misplaced:

“Because Mr Hambridge’s first application was in substance an unfair dismissal application using the wrong form and not a general protections application, the conclusions in Ioannou are inapplicable. The action that might have been taken under s.586 was not a conversion of the application to one of a fundamentally different character; it would merely have been a correction, amendment or waiver of an irregularly-made unfair dismissal remedy application.” 17

[23] The Full Bench ultimately found that “[a] simple procedural error by Mr Hambridge led to a set of circumstances which ultimately caused him to discontinue the first application and make the late second application, when in fact the matter could have been rectified by the use of powers under s.586 without the need to make any late application at all.” 18

Conclusion

[24] The principles from Ioannou and Hambridge are not inconsistent. The application sought by the Applicant in Ioannou was found to be in the nature of a fundamental change to the kind of application originally made, a ‘conversion’ of an unfair dismissal application to a general protections application. The Full Bench was not satisfied the power contained in s.586 of the Act allowed such a conversion to be made. Conversely, in Hambridge, the Full Bench said the critical factual consideration is the nature of the first application and emphasised the necessity to look at the substance of that application, rather than the form that was used to make it. In doing so, the action that might be taken under s.586 of the Act may not be a conversion of the application to one of a fundamentally different character, but rather a correction, amendment or waiver of an irregularly made application, which the Commission is empowered to do.

Findings

[25] I have considered various contents of the Unfair Dismissal Application as follows:

• Using the Online Lodgment Service, Mr Hui was first prompted to select from a list of categories, being the various application types he could lodge. In that list, ‘Unfair Dismissal’ and ‘General Protections’ appear separately. It is evident that Mr Hui selected ‘Unfair Dismissal’ as that is the application type which was generated for him to fill out;



• In response to the question ‘have you made another claim to the Commission or to any other organisation regarding your dismissal (e.g. a general protections application)?’ the answer was ‘no,’ despite specific mention being made within the question that another type of application is a general protections application. I note the information prompt at that question in the Online Lodgment Service elaborates on other types of claims which may be made, including a general protections dispute and says ‘[i]f you’re unsure which is the best option for you, read the where to get help section near the start of this form’;



• As to remedy, Mr Hui said he sought to be paid three weeks’ notice plus 26 weeks’ compensation for the period he has been out of work, his unpaid July commission payment and a component for emotional distress. A reference to 26 weeks’ compensation is found solely within the unfair dismissal provisions of the Act and relates to the cap on the amount that may be awarded if an order for the payment of compensation is made. A claim for compensation due to emotional distress, though expressly prohibited from awards of compensation in an unfair dismissal matter, 19 can be made in a general protections claim. However, references to compensation for emotional distress or underpayment are not necessarily conclusive of a determination by an Applicant to file a general protections claim. It is not uncommon for a claim for compensation for emotional distress to be made by Applicants in unfair dismissal applications, particularly when without representation. Equally, claims for underpayments are not uncommon features across a range of matter types at the Commission;



• In response to the question ‘what were the reasons for the dismissal, if any, given by your employer?’ Mr Hui said he was not given any reason for his dismissal and had not received any warnings about his performance or other matters, but he does not allege he has been dismissed for a prohibited reason in his response to this question;



• In response to the question ‘why was the dismissal unfair?’ Mr Hui noted that he ‘worked on a regular and systematic basis since 13^th April 2013.’ The reference to ‘regular and systematic’ is applied to casual employees within the unfair dismissal provisions of the Act 20 but not to the general protections provisions; and



• In the ‘Comments’ section of the Unfair Dismissal Application, Mr Hui said Evanita did not have any policies or rules in place regarding commission calculations and he alleged different reasons were given to him as to his reduction in commission, which further pointed to a lack of policies in the area. Mr Hui said it made him believe Evanita wanted to avoid paying him his July 2017 commission, which would have been the highest in four years.

[26] Thus it can be seen that Mr Hui has made reference above to certain matters one would expect to see in an unfair dismissal application, including the seeking of 26 weeks’ compensation, that he had worked on a ‘regular and systematic’ basis and there was an absence of warnings about his performance prior to being terminated. I consider it might be open for me to conclude that Mr Hui researched termination of employment matters having regard to the particular ‘legal’ language he has used, and intended to file an application for unfair dismissal. However, for the reasons below, I am not satisfied these above mentioned matters are ultimately determinative in characterising the substance of Mr Hui’s application.

[27] Despite the above features within the Unfair Dismissal Application, Mr Hui also said, in response to the question ‘why was the dismissal unfair;’ “I was exercising my workplace right to enquire about my July’s commission payment.” Further, Mr Hui went on to say “I think this termination is directly related to the commission matter. He was taking an adverse action against me because I had exercised a workplace right to inquire [about] my commission matters.”

[28] Mr Hui had also attached a series of emails and correspondence to the Unfair Dismissal Application which demonstrate that dialogue between Mr Hui and Evanita regarding an entitlement to and payment of commission commenced on at least 3 August 2017. On 3 August 2017, Mr Hui asked that the calculation be reviewed. On 8 August 2017, he sent an email to his manager asking that they discuss the commission payment. He again made requests for a meeting on 15 August, 21 August and 28 August 2017 to discuss his concerns. In his email to Sue Bukowski at 12.38pm on 28 August 2017, Mr Hui enquired:

“Hi Sue

Just wondering can we have a simply [hic] talk about the commission first if Scott is not available…”

[29] In her reply email at 2.34pm on 28 August 2017, Ms Bukowski said:

“Hi ernie

I have confirmed with Scott and Michelle and no commission is payable on the Payroll Tax End of year process as it’s billing [is] generated by a system process rather than extra work you do…”

[30] In his response to the question ‘why was the dismissal unfair;’ Mr Hui also stated that Ms Bukowski had also said to him that she would talk to Scott Lawes about the commission payment again, but that he would not agree and that he would be angry. It does not appear Mr Scott Lawes corresponded with Mr Hui directly regarding the commission issues however on 31 August 2017, he advised Mr Hui in an email, also attached to the Unfair Dismissal Application, “…Paysonline will no longer require you to work your normal shifts from Monday to Wednesday until further notice. Thank you once again for your contribution to our business in your casual capacity.”

[31] The language in the Unfair Dismissal Application described in [27] above, including ‘workplace right’ and ‘adverse action’, is in the nature of an alleged breach of the general protections provisions of the Act. That Mr Hui was having dialogue with Evanita for approximately one month immediately prior to what appears to be an abrupt termination of his employment persuades me that Mr Hui was of the opinion that the reason he was terminated was because he raised concerns about his commission payments. The matters outlined in [28] to [30] above provide an arguable basis for this conclusion. Having regard to the email correspondence attached to the Unfair Dismissal Application and the language in the application used by Mr Hui (referenced in [27] and [30] above), I am persuaded that the application Mr Hui intended to make was in relation to his allegation that his employment had been terminated because he exercised a workplace right to inquire about his pay.

[32] Having regard to the substance of the Unfair Dismissal Application and not its form, as required by s.577(b) of the Act, 21 I am satisfied, on reviewing the Unfair Dismissal Application, its attachments and the other material before me, the proper characterisation of the Unfair Dismissal Application is that it is a general protections application made using the wrong form. Weighing up all the matters addressed in the Unfair Dismissal Application and its attachments, I am satisfied the complaint Mr Hui intended to prosecute was that his employment was terminated because he exercised a workplace right to inquire about his pay. This was a finely balanced matter and were it not for the email correspondence attached to the Unfair Dismissal Application and the substance of Mr Hui’s response to the question ‘why was the dismissal unfair;’ my conclusion may have been different. Applications of this kind will invariably turn on their own facts.

Conclusion

[33] Pursuant to s.586(b) of the Act, I will correct the irregularity in the form in which Mr Hui has filed his general protections application. Mr Hui’s application will be given a general protections matter number and will be programmed in the usual manner. Parties can expect further correspondence from the Commission in due course.

DEPUTY PRESIDENT

 1   [2017] FWCFB 2811.

 2 (1989) 17 NSWLR 710 at 729.

 3   Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27 at 30, Jackamarra v Krakouer (1998) 195 CLR 516 at 541.

 4   [2014] FWCFB 6660.

 5   [2015] FWCFB 1440 at [16].

 6   [2014] FWCFB 6660 at [11].

 7 Ibid [17].

 8 Ibid [22].

 9 Ibid [22].

 10 Ibid [24].

 11 Ibid [28].

 12   [2017] FWCFB 2811 at [4].

 13 Ibid [18].

 14 Ibid [25].

 15 Ibid [26].

 16   Ibid.

 17 Ibid [33].

 18 Ibid [41].

 19   Fair Work Act 2009 (Cth) s.392(4).

 20   Fair Work Act 2009 (Cth) s.384(2).

 21   See Hambridge v Spotless Facilities Services Pty Ltd[2017] FWCFB 2811 at [26].

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