Cook v ACI Operations Pty Ltd - [2011] FWA 3715

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

FAIR WORK AUSTRALIA

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(i) been withdrawn by the person who made the application; or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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cook v ACI Operations Pty Ltd

Details

AGLC: Cook v ACI Operations Pty Ltd [2011] FWA 3715
Case: [2011] FWA 3715
Decision Date: 14 JUNE 2011

CaseChat Overview and Summary

In Cook v ACI Operations Pty Ltd, Dale Cook applied for an unfair dismissal remedy against his employer, ACI Operations Pty Ltd, under the Fair Work Act 2009. ACI Operations objected to the application on the grounds that Cook had previously lodged a complaint of discrimination with the Australian Human Rights Commission (AHRC), which was considered a complaint in relation to his dismissal under Subdivision B of Part 6-1 of the Act. The employer argued that the complaint to the AHRC and the application for unfair dismissal remedy were both complaints in relation to the same dismissal and that Cook was precluded from pursuing both. The court had to decide whether the amended complaint to the AHRC was indeed a complaint in relation to the dismissal, and if so, whether the court was precluded from hearing Cook's application for unfair dismissal remedy.

The court considered the relevant sections of the Act and concluded that the phrase "make an application or complaint" in s.725 had an ambulatory operation and was to be considered at the point in time when the operation of s.725 fell to be determined. The court found that the April amended complaint, having been accepted by the AHRC, was the complaint to be considered in applying s.725 of the Act. However, the court held that the April amended complaint to the AHRC was not in fact or in law an application in relation to dismissal. The court found that the April amended complaint sought a remedy in relation to conduct by the employer leading up to but excluding the dismissal of the applicant, and the remedy sought from the AHRC did not relate to the dismissal. The court rejected the broad interpretation of the words "in relation to the dismissal" as advanced by the employer, finding that it was not consistent with the objects of the Act.

The court dismissed the employer's objection, allowing the matter to proceed to a hearing on the merits of the unfair dismissal application. The court found that the April amended complaint to the AHRC was not a complaint in relation to dismissal, and therefore, the applicant was not precluded from pursuing his application for unfair dismissal remedy.

Orders