Darren Parker v Socobell O.E.M Pty Ltd

[2021] FWC 6631

[2021] FWC 6631

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.526—Stand down

Darren Parker
v
Socobell O.E.M. Pty Ltd
(C2021/8135)

DEPUTY PRESIDENT COLMAN MELBOURNE, 20 DECEMBER 2021

Stand down dispute – applicant refused to provide proof of vaccination – applicant dismissed – former employees have no standing under s 526(3) – application also seeks compensation for wages due, requiring exercise of judicial power – application dismissed

[1] This decision concerns an application brought under s 526 of the Fair Work Act 2009 (Act) by Mr Darren Parker in relation to an alleged dispute about the operation of Part 3-5 of the Act. Mr Parker contends that his former employer, Socobell O.E.M. Pty Ltd (company), stood him down from 19 November 2021 until 1 December 2021, when the company summarily dismissed Mr Parker for serious misconduct, following his refusal to provide proof that he had been vaccinated.

[2] Mr Parker contends that the stand down was unlawful because the requirements of s 524(1) were not met. In particular, Mr Parker said that during the period of his stand down, he could have been usefully employed, because he had been working on a large quote for a new customer and had plenty of work to do. Mr Parker also contends that he was unlawfully stood down on numerous other occasions dating back to 2014. The application asks the Commission to order that the company pay Mr Parker’s wages in respect of the relevant period or periods.

[3] The company objected to the application on two jurisdictional bases. First, it submitted that Mr Parker did not have standing to bring the application because he was not an employee of the company at the time his application was lodged. In this regard, the company submitted that Mr Parker was dismissed with immediate effect at a meeting around 11.15am on 1 December 2021, and that the application was lodged in the Commission on the afternoon of that day. The company submitted to the Commission a copy of the termination letter that had been sent to Mr Parker, which confirmed that his employment had been terminated at 11.15am on 1 December 2021. Secondly, the company submitted that the application asked the Commission for relief which would require the exercise of judicial power, which is plainly beyond the Commission’s jurisdiction.

[4] In correspondence from chambers, I advised the parties that it appeared that the application had been lodged with the Commission after Mr Parker’s employment had been terminated, and that therefore the Commission had no power to deal with the matter, because, as I explained in Richards v Automotive Brands Group Pty Ltd[2020] FWC 4168, a former employee has no standing to make an application under s 526. I advised the parties that Mr Parker’s application would therefore appear to have no reasonable prospects of success. I stated that any submissions that Mr Parker might wish to make about these matters could be filed by the close of business on 15 December 2021, whereafter I would determine whether to dismiss the application under s 587 of the Act.

[5] Mr Parker filed a brief written submission in which he contended that he did not realise that he was going to be dismissed in the meeting on 1 December 2021, and that he did not receive written confirmation of his termination until 2 December 2021. Mr Parker said that all of the preparation for his s 526 application had been undertaken prior to 1 December 2021, but that he had not wanted to lodge the application while his employment was still ‘up in the air’, as he did not want any application to affect the company’s decision about his employment. Mr Parker further submitted that he had been stood down on a number of other occasions since 2014, that he did not agree with any of the decisions to stand him down, and that the company used casual employees who should have been disengaged before standing down permanent employees.

[6] Section 587 of the Act provides that the Commission may dismiss an application that has no reasonable prospects of success. The present application has no such prospects. Section 526(3) limits the power of the Commission to deal with disputes about the operation of Part 3-5. It states that the Commission may deal with a dispute ‘only on application by any of the following’. Section 526(3)(a) then refers to ‘an employee who has been, or is going to be, stood down under subsection 524(1) (or purportedly under subsection 524(1))’. I understand Mr Parker to contend that he is a person described in s 526(3)(a). The other provisions in s 526(3) are not relevant, as they relate to applications by unions, inspectors, and employees who have requested to take leave to avoid being stood down.

[7] Mr Parker ceased to be an employee of the company on the morning of 1 December 2021. It was not until after his dismissal that he lodged the application under s 526. At that time, he was not ‘an employee who has been, or is going to be, stood down’. He was a former employee who had been stood down in the past by his former employer. He was therefore not a person who was able to make an application under s 526 and the Commission cannot deal with the application. The fact that the dismissal was not confirmed in writing until the following day is irrelevant. The dismissal was effectuated orally in the meeting on 1 December 2021. Mr Parker does not dispute this. It is also not relevant that Mr Parker prepared his application prior to his dismissal. The fact is that he did not lodge it until after his dismissal, when he had ceased to be an employee. Former employees who contend that a stand down was improperly implemented by a former employer can sue for recovery of wages in a court. But they cannot prosecute a dispute in the Commission under s 526.

[8] Mr Parker’s application is beyond the Commission’s jurisdiction for another reason, because it seeks orders for the payment of wages said to be due to Mr Parker. The Commission is not a court. It cannot exercise judicial power, and therefore cannot make binding determinations as to whether an employer has acted lawfully in standing down an employee. The Commission can neither declare that an employer has failed to comply with s 524, nor order that an employer pay wages (whether in whole or part) due to an employee because of that non-compliance. Only a court can make orders of this kind.

[9] Mr Parker’s application clearly seeks ‘reimbursement of lost pay’. This is not a problem of drafting that might be cured by recasting the application. Claims for wages said to be due to an employee in respect of a period of an allegedly unlawful stand down cannot simply be refashioned as claims for ‘compensation’ to be awarded by the exercise of the Commission’s arbitral powers. As I explained in ASU v Helloworld Travel Limited and another[2021] FWC 6535 at [57]-[61], the Commission can and should ascertain the true nature of an application, and if its object is to recoup wages due, whether in whole or in part, the Commission must reject the claim on the basis that to grant it would require the exercise of judicial power.

[10] The application has no reasonable prospects of success. The discretion conferred on the Commission by s 587 is engaged. It is appropriate that I exercise that discretion. The application is dismissed.

DEPUTY PRESIDENT

Determined on the papers

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