Cook v ACI Operations Pty Ltd
[2011] FWA 3715
•14 JUNE 2011
Note: An appeal pursuant to s.604 (C2012/2957) was lodged against this decision - refer to Full Bench decision dated 26 April 2012 [[2012] FWAFB 3292] for result of appeal.
[2011] FWA 3715 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Dale Cook
v
ACI Operations Pty Ltd
(U2011/4322)
BARTEL, DEPUTY PRESIDENT | ADELAIDE, 14 JUNE 2011 |
Introduction
[1] On 21 January 2011, Dale Cook lodged an application pursuant to s. 394 of the Fair Work Act 2009 (the Act) seeking an unfair dismissal remedy in relation to his dismissal by ACI Operations Pty Ltd (the respondent or the employer) on 20 January 2011. He also lodged a complaint relating to his dismissal with the Australian Human Rights Commission (AHRC), which was received on 24 January 2011. The applicant subsequently sought to amend his complaint to the AHRC on two occasions.
[2] This decision deals with an objection taken by the employer to Fair Work Australia dealing with the s.394 application. The employer relies on Subdivision B of Division 3 of Part 6-1 of the Act (hereafter referred to as Subdivision B) dealing with multiple applications and complaints relating to dismissal. It is argued that the applicant has sought to have the matter of his dismissal dealt with in two jurisdictions and that this is prohibited by s.725 of the Act. This section is 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.”
[3] For present purposes, the following sections of Subdivision B are also relevant:
“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(i) been withdrawn by the person who made the application; or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.
...
732 Applications and complaints under other laws
(1) This section applies if:
(a) an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and
(b) the application or complaint has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction.
(2) An application or complaint under another law is an application or complaint made under:
(a) a law of the Commonwealth (other than this Act); or
(b) a law of a State or Territory.
(3) For the purposes of this Subdivision, if a complaint under the Australian Human Rights Commission Act 1986 relates to a dismissal only as a result of an amendment of the complaint, the complaint is taken to be made when the complaint is amended.”
[4] It is agreed that the complaint before the AHRC has not been withdrawn by the applicant, nor has it failed for want of jurisdiction. The initial complaint, the first amended complaint dated 17 February 2011 (hereafter referred to as the February amended complaint) and the further amended complaint dated 12 April 2011 (hereafter referred to as the April amended complaint) each assert that the applicant has been discriminated against because of a disability. The initial complaint contends that the applicant was unfairly discriminated against by the employer in a number of respects, including that his employment was terminated, and seeks three outcomes of the complaint including that the applicant be reinstated. While not conceded by the applicant, there was no strenuous challenge to the employer’s contention that the initial complaint to the AHRC related to his dismissal.
[5] Section 46PA of the Australian Human Rights Commission Act 1986 (the AHRC Act) provides that:
“46PA Amendment of complaint
(1) Any complainant may at any time amend the complaint, with the leave of the President.
(2) Subsection (1) does not, by implication, limit any other power to amend the complaint.”
As at the date of the hearing on 9 May 2011, the applicant had not received any advice from the AHRC as to whether the February and April amended complaints had been accepted.
[6] Additional time was given to the applicant to provide documentation from the AHRC relevant to this issue. Subsequently Mr Rossi of counsel for the applicant, provided additional material which included a letter from AHRC to his firm dated 13 May 2011. The letter was signed by Jodie Ball, Delegate of the President, and included the following paragraphs:
“Complaint by Mr Dale Cook against ACI Operations Pty Ltd (ACI)
I refer to Mr Cook’s complaint against ACI which alleges disability discrimination in employment.
Request to amend the complaint
On 16 February 2011 and 12 April 2011 the Australian Human Rights Commission received Mr Cook’s request to amend his complaint against ACI to remove reference to termination of his employment.
Amendment
I confirm that I have granted leave under section 46PA(1) of the Australian Human Rights Commission Act 1986 for Mr Cook to amend his complaint to remove reference to termination of employment.”
[7] It is convenient at this point to set out the detail of the initial complaint 1 the April amended complaint2 and the unfair dismissal application. There is little point in isolating the February amended complaint for consideration given the arguments advanced by the respondent and my conclusions set out below.
The AHRC complaint
[8] Set out below is the relevant text of the initial complaint. The passages in italics in square brackets represent the passages deleted by the subsequent amendments.
“Why are you complaining to the Commission?
I am complaining because I believe:
I have been discriminated against because I have a disability
...
When did this happen? 19 January 2011
What happened?
I have been employed as a glass maker with ACI Operations since 29 January 2007 and over that period have obtained promotions and pay rises.
On 6 May 2010 I suffered a myocardial infarction.
On 28 July 2010 at the request of the employer I underwent a functional capacity evaluation.
On 20 August 2010 I was cleared by my treating cardiologist fit to return to normal pre-injury duties.
On or about 7 December 2010 the employer required me to undergo a further functional capacity evaluation and subsequent stress test and drug screen.
The results of the above examination were not provided to me.
[On 17 January 2011 the employer requested I resign my employment.]
[I rejected that request as I wished to continue in employment and was medically fit to carry out my pre-injury work without restrictions.]
In a meeting which took place on 19 January 2011, I requested:
1. An opportunity to obtain the medical evidence the employer was relying on in determining that I was unfit to carry out my normal duties ...
2. That I be given an opportunity to put that medical information to my cardiologist with the test results from the functional capacity evaluation and stress test and drug test.
3. That I be provided with a copy of my job description to provide to my cardiologist with the test results from the functional capacity evaluation and
4. That I be given the opportunity to provide ... a further letter of clearance from my cardiologist.
5. The employer refused to provide me with any of the requested information.
After refusing to resign my employment the employer required me to attend a further functional capacity evaluation and medical examination.
I declined to attend a further functional capacity evaluation and medical examination in the absence of the previous results being provided to me.
[On 20 January 2011 my employment was terminated by way of undated letter handed to me (on that day).]
[The reasons for termination are set out in the attached letter.]
[During the meeting which took place on 20 January2011, my employer asked me if I would like a support person to attend the meeting with me. I advised the employer that I would like to have a support person with me and that the support person would be available to attend on Friday. I was advised that the meeting needed to go ahead immediately on that day and therefore the employer was not prepared to allow me to have a support person present and the termination of my employment proceeded without me having the opportunity to arrange a support person to be available.]
I suffered a disability as a result of my cardiac infarct which prevented me from performing my normal duties up to 20 August 2010.
Subsequent to that date I have been fit and able to return to my pre-injury employment. Any disability which I suffered as a result of my cardiac infarct does not prevent me from carrying out my normal duties.
I have been unfairly discriminated against by my employer in the following respects:
1. Required to undergo significant medical examinations which other workers are not required to attend in circumstances where there is a clearance from my treating cardiologist to return to pre-injury duties.
2. Deprived of the opportunity to view, consider and respond to the medical information obtained by and relied on by the employer in relation to my previous disability.
3. Prevented by the employer from carrying out my normal duties as a change gang and forehearth as a result of my former disability in circumstances where that former disability does not incapacitate me to carry out my duties.
4. Prevented by my employer from obtaining evidence from my treating cardiologist in response to the medical evidence relied on by the employer in determining that my former disability prevented me from performing my normal duties.
[5. Sacked by my employer because I had a cardiac infarct.]
Supporting evidence
...
1. Medical notes headed patient medical history.
2. Report of Dr Kumaril Mishra, Cardiologist.
[3. Copy of undated letter of termination.]
4. Copy of letter dated 17 January.
How has this affected you?
...
[The termination of my employment has resulted in me becoming depressed and anxious about my financial situation. I have suffered anxiety and depression at the loss of my employment.] I experience frustration at the employer’s failure to provide me with an opportunity to put medical evidence to my treating cardiologist in order to confirm that any disability arising out of my heart attack does not prevent me from carrying out my normal duties.
What outcome are you seeking?
I am seeking [reinstatement of my employment and] compensation for hurt feelings, anxiety and depression.
I am seeking a change in policy within the workplace in order to reduce the risk of further discrimination occurring in circumstances where a worker has a disability.
I am seeking an apology from the employer in relation to the discrimination.
Have you made a complaint to another agency?
...
[I have filed an Application for Unfair Dismissal in Fair Work Australia.]
Have you tried to resolve your complaint in any other way?
[When I met with the employer on Friday 14 January 2011, the employer asked me to resign my employment with two month’s pay and when I rejected that offer of two months’ pay in exchange for my resignation] I requested an opportunity to obtain any further medical evidence that the employer might require in order to confirm that any disability which the employer believes I have arising out of my cardiac infarction does not affect my ability to carry out my normal pre-injury duties. [I have also requested that I be given an opportunity to have representation in relation to the issues raised in my termination letter and in particular, an opportunity to make submissions in relation to my ability to carry out my pre-injury role. The employer has denied me the opportunity to put any further medical evidence to them and terminated my employment without further opportunity.]”
The unfair dismissal application
[9] The s.394 application sets out the same chronological summary of events as included in the initial complaint to the AHRC. In the part of the s.394 application requesting details of why the dismissal was unfair, the applicant has referred to the following matters:
- The applicant’s employment was terminated at the initiative of the employer;
- The applicant was denied procedural fairness because not provided with results of medical tests undertaken for employer in determining that he was not fit for normal duties;
- The applicant was denied an opportunity to respond to allegations that he was not fit for normal duties;
- The applicant was denied the opportunity to obtain his own medical evidence re his capacity to undertake normal duties;
- The applicant is fit and medically cleared to undertake his pre-injury duties;
- The applicant was denied the opportunity to have a support person present during the termination interview; and
- The respondent failed to particularise its reasons for forming the view that the applicant could not return to pre-injury duties as a result of his cardiac infarction.
Consideration
[10] The relevant principles of interpretation were recently considered by a Full Bench of Fair Work Australia in J.J. Richards & Sons Pty Ltd v Transport Workers’ Union of Australia. 3 Specifically the Full Bench was considering the issue of whether resort could properly be had to the Explanatory Memorandum in construing a particular provision of the Act. As both parties in the present matter relied on the Explanatory Memorandum in support of their positions, it is convenient to state the principles set out by the Full Bench after considering a long line of authorities in relation to statutory interpretation and the relevant provisions of the Acts Interpretation Act 1901 (Cth). The majority stated that:
“[29] Drawing these principles together, the task of statutory interpretation is concerned with ascertaining the intention of the legislature as manifested by the text of the legislation. Context (using that word in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means, one may discern the statute was intended to remedy) and the purpose or object underlying the legislation must always be considered. These must be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise. The text of a provision, read in context and having regard to the object and purpose of the provision, is always the surest guide. Moreover, the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed. Resort to explanatory memoranda and other extrinsic material may only be had for the purposes stated in s.15AB(1)(a) and (b) of the Acts Interpretation Act 1901.
[30] It is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory interpretation. Statements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning. Section 15AB does not permit recourse to explanatory memoranda or other extrinsic material for the purpose of departing from the ordinary meaning of the text unless either the meaning of the provision to be construed is ambiguous or obscure or in its ordinary meaning leads to a result that is manifestly absurd or is unreasonable.”
[11] Section 15AB(1) of the Acts Interpretation Act 1901 is in the following terms:
“15AB Use of extrinsic material in the interpretation of an Act
(1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b) to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.”
[12] I respectfully adopt this approach and turn firstly turn to consider the context in which Subdivision B appears in the Act and the mischief to which it is directed. It is uncontroversial that the statutory purpose of Subdivision B is directed to preventing applicants from making multiple applications relating to the same dismissal and to force an applicant to elect which application he or she will pursue, subject to certain caveats. 4
Which complaint is to be considered under subdivision B?
[13] The first matter that falls for determination is whether the initial complaint or the April amended complaint is to be considered. Ms Zeitz of counsel, on behalf of the respondent, argued that it is the initial complaint that is to be considered under Subdivision B. It was submitted that s.732(1) of the Act refers to applications or complaints being withdrawn or failing for want of jurisdiction but does not concern amendments to applications or complaints. It was also submitted that s.732(3) provides that once a complaint relating to dismissal is made to the AHRC it is taken to be a complaint for the purposes ss.725-732 of the Act and this supports the view that the subsequent amendment of the complaint is of no standing in applying the provisions of subdivision B.
[14] I am not persuaded that s.732(3) of the Act should be interpreted in the manner advanced by the respondent. Section 732(3) is designed to prevent an applicant or complainant from circumventing the provisions of Subdivision B by lodging an application or complaint under another law and later amending it to so that it relates to a dismissal. The effect of that section is to ensure that the amended complaint dealing with dismissal can be considered by Fair Work Australia in applying Subdivision B.
[15] I consider that the phrase “make an application or complaint” in s.725 has an ambulatory operation. That is, it is to be considered at the point in time when the operation of s.725 falls to be determined. Such an approach is consistent with the mischief intended to be cured by the subdivision and is consistent with the approach in s.732(3) of the Act, as discussed above. As such, it is the application and/or complaint as it stands at the time that the issue falls for determination that is in issue when considering the operation of s.725 of the Act. I have therefore concluded that the April amended complaint, having been accepted by the AHRC, is the complaint to be considered in applying s.725 of the Act.
Is the amended complaint in relation to the dismissal?
[16] Ms Zeitz argued that the April amended complaint is a complaint in relation to dismissal. She submitted that the April amended complaint and the application for an unfair dismissal remedy rely on common facts and that the April amended complaint arises as a consequence of and in response to the applicant’s dismissal. It was further submitted that in each case the employer’s conduct that is complained of is inherently related to the dismissal and that the deletion of the references relating to termination of employment from the initial complaint has not altered its character.
[17] In essence, the respondent’s argument on this issue is that the phrase “in relation to the dismissal” where it appears in s.725 and s.732(1)(a) of the Act is to be read broadly, so that it encompasses any complaint under another law of the Commonwealth or State or Territory that relies on facts that are in common with those relied upon in the application for an unfair dismissal remedy. This was expressed in the following passage from the respondent’s written submissions:
“... if the Tribunal determines that is has jurisdiction to hear the application [for an unfair dismissal remedy], then it could only consider and make findings on those facts which do not form part of the Complaint/amended Complaint and which are therefore not excluded by the operation of Part 6-1 of Division 3 Subdivision B of the Act; being the fact of the termination itself. This provides no basis upon which the Tribunal could reasonably determine if the dismissal was harsh, unjust or unreasonable in accordance with the Act. Were the tribunal to do otherwise, then the same factual matters would be subject to consideration and determination by two separate bodies simultaneously giving rise to the real and apparent possibility of inconsistent or contradictory findings of fact being made.” 5
[18] Mr Rossi submitted that the April amended complaint to the AHRC is not in fact or in law an application in relation to dismissal. To the extent that the April amended complaint relied on conduct also referred to in the unfair dismissal application, Mr Rossi submitted that such conduct was itself discriminatory or constituted relevant circumstantial evidence to other conduct by the employer that was discriminatory under the AHRC Act. 6
[19] The April amended complaint seeks a remedy in relation to conduct by the employer, leading up to but excluding the dismissal of the applicant and alleges that this conduct constitutes unlawful discrimination on the grounds of disability for which the applicant seeks redress via compensation and other relief. The unfair dismissal application also relies on this conduct, including as evidence that the applicant was denied procedural fairness, in support of the claim that the dismissal was harsh, unjust or unreasonable and seeks relief in relation to the dismissal.
[20] While it is apparent that the dismissal was the catalyst for the initial complaint to the AHRC, the April amended complaint does not rely on the dismissal as a condition precedent to make the case that the employer engaged in discriminatory conduct and the remedy sought from the AHRC does not relate to the dismissal.
[21] The present circumstances stand in contrast to the circumstances considered by a Full Bench in Ilardo v Rail Corporation of New South Wales T/A RailCorp. 7 The relevant facts in that matter were that the applicant had appealed the termination of his employment by RailCorp to the Transport Appeals Board (TAB). His appeal was dismissed by the TAB and he then filed an unfair dismissal application to Fair Work Australia. The Commissioner at first instance held that the unfair dismissal application was statute barred and dismissed it.8 That decision was upheld on appeal, where the Full Bench concluded that the applicant’s actions in filing the unfair dismissal application after his appeal to TAB was dismissed were the very act of double dipping that s.725 attempts to prevent.9
[22] In my view the broad interpretation advanced by Ms Zeitz cannot be sustained on the ordinary meaning of the words “in relation to the dismissal”. Had subdivision B intended to force an employee to elect to pursue only one application where more than one application is made in relation to the same set of facts or circumstances, it would have said so. Nor is the respondent’s interpretation consistent with the objects of the Act, which include the prevention of discrimination and protection against unfair treatment and discrimination. 10 The interpretation of the words “in relation to dismissal” must be directed to the characterisation of the complaint/application.
[23] The potential consequence that two separate statutory bodies could reach inconsistent or contradictory findings of fact, unlikely though it may be, cannot be discounted. However, I do not consider that such an outcome is of sufficient consequence to outweigh the interpretation of ss.725 and 732 that I have preferred.
[24] A further issue relating to the construction of Subdivision B was the subject of a submission by Mr Rossi. He argued that an application or complaint in another jurisdiction that relates to dismissal will not be statute barred providing that the application or complaint has been made subsequent to the application for an unfair dismissal remedy. Given my findings above it is unnecessary that I determine this issue.
[25] The respondent’s objection is dismissed. This matter will be called on for Directions in relation to the hearing on the merits of the unfair dismissal application.
DEPUTY PRESIDENT
Appearances:
Mr T Rossi - Moody Rossi and Co on behalf of Mr D Cook
Ms S Zeitz - Zeitz Workplace Lawyers on behalf of ACI Operations Pty Ltd
1 Attachment R1 to the Submissions of the Respondent (Ex R1).
2 Attachment DC-4 to the Outline of Submissions of the Applicant (Ex A1)
3 [2010] FWAFB 9963
4 Chacko v Compass Group (Australia) Pty Ltd, [2010] FWA 7418 at PN [18]; Isles v NT Police, Fire and Emergency Services T/A NTPSES, [2010] FWA 9147 at PN [70]
5 The employer’s written submissions in reply, 25 May 2011, at para 5.b.
6 PN [62] - [63]
7 [2010] FWAFB 6473
8 [2010] FWA 3892
9 Ibid at PN [21]
10 Section 3(e) of the Act
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