David Jobson v JB Hi Fi Group Pty Ltd

[2014] FWC 1155

[2014] FWC 1155

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

David Jobson
v
JB Hi Fi Group Pty Ltd; Scott Apthorpe; Kamran Money; Tony Baric
(C2013/7266)

COMMISSIONER RYAN MELBOURNE, 4 MARCH 2014

Application to deal with contraventions involving dismissal - jurisdiction - extension of time - multiple applications.

[1] An application to deal with a general protections dispute involving a dismissal (Form F8) was filed by Mr Jobson on 18 November 2013 pursuant to s.365 of the Fair Work Act 2009 (the Act).

[2] JB Hi Fi Group Pty Ltd, through their legal representative Mr Mark Diserio of Lander and Rogers filed an employer response to the application (Form F8A) on 22 November 2013 in which the employer raised 2 specific jurisdictional objections to the Commission dealing with the application:

“3.1 The Respondent objects to the Fair Work Commission dealing with the Applicant's Application.

(a) The Application made does not conform with section 366(1)(a) of the Fair Work Act 2009 as it is out of time.

(b) The Applicant is precluded from making his Application by section 725 of the Fair Work Act 2009 because the Applicant has made a complaint under the Equal Opportunity Act 2010 (Vic) to the Victorian Equal Opportunity and Human Rights Commission (VEOHRC complaint #2013/09/0509). That complaint was conciliated by Mr Adam Boyce on 7 November 2013 and at the date of this Application was still subject to discussion between the parties' legal representatives.”

[3] The two jurisdictional objections raised by JB Hi Fi Group Pty Ltd were listed for hearing before me on 28 January 2014 and directions were issued requiring the parties to file and serve their respective submissions and evidence in advance of that hearing.

[4] The submissions and evidence for JB Hi Group P/L were filed by Mr Diserio on 20 December 2013 and in relation to the objection under s.725 of the Act the submission contended as follows:

“15. Section 725 of the Act exhibits an intention to restrict a person from making multiple applications or "forum shopping".

16. While at the time the Respondents filed their Form 8A on 22 November 2013, the Applicant still had an application extant with the VEOHRC, the Respondents have since been informed by letter dated 11 December 2013 and received by their lawyers on 15 December 2013, that the VEOHRC has closed the matter pursuant to section 115(2)(a) of the Equal Opportunity Act 2010.1 See Attachment 2.

17. Given this development, the Respondents appear to no longer be able to maintain their objection to the FWC dealing with Mr Jobson's application on the basis of section 725. However, the Respondents submit that Mr Jobson's conduct is relevant to the FWC's consideration of his application for an extension of time under section 366(2), particularly in view of sections 366(2)(a), (b) and (c).”

[5] The written submission of JB Hi Fi Group P/L appeared to effectively abandon the second jurisdictional challenge based on s.725 of the Act.

[6] At the hearing of this matter on 28 January 2014 Mr Diserio pressed the objection based upon s.725 of the Act as well as the objection that the application was out of time. I specifically granted permission to JB Hi Fi Group P/L to be represented by Mr Diserio only for the purpose of dealing with the jurisdictional objection based on s.725 of the Act.

[7] Whilst there was clearly an element of unfairness to Mr Jobson in JB Hi Fi Group P/L pressing at the hearing an objection that it had indicated in written submission it had abandoned, the Commission was obliged to properly determine whether it had jurisdiction to deal with the application and any issue of procedural fairness to Mr Jobson could be accommodated through adjournment of proceedings if necessary.

[8] There are limits as to what jurisdictional challenges could or should be dealt by the Commission in relation to s.365 applications. In Hewitt v Topero Nominees P/L T/a Michaels Camera Video Digital, a Full Bench of the Commission (Ross J, Hatcher VP and Johns C) determined that the Commission was not to consider a jurisdictional challenge that an employee who made a s.365 application had not been dismissed. The Full Bench said:

“[17]In the context of this matter the question becomes whether it is sufficient for a s.365 application to state on its face that the applicant has been dismissed and that it is alleged that the dismissal was in contravention of Part 3-1, or is the Commission required to determine whether the applicant was dismissed from their employment as a jurisdictional prerequisite to a conference being conducted pursuant to s.368.

...

[22]Section 365 is part of Subdivision A of Division 8 of Part 3-1 of the Act (the Subdivision) which establishes a scheme whereby persons who allege a dismissal in contravention of one or more of the prohibitions contained in Part 3-1 may apply to the Commission for it to conduct a dispute resolution process.

[23]The content and structure of the Subdivision tells against the proposition that s.365 is to be read as imposing jurisdictional pre-conditions beyond the mere filing of an application alleging dismissal in contravention of Part 3-1. The Subdivision does not contemplate that the Commission would engage in any sort of determinative process in dealing with a s.365 application.

...

[35] A third contextual consideration is also relevant. Except in relation to an extension of time application, there is nothing in the Subdivision which contemplates the receipt of evidence by the Commission or the making of a determination requiring findings of fact. The decision of the Full Bench in Hetherington-Gregory v Harrington Village Motel (Hetherington-Gregory), is relevant in this regard. In that matter the Commission considered whether an order for the production of documents in connection with a conference under s.776 of the Act should be made. Section 776 is part of the legislative scheme concerning unlawful termination of employment, in Part 6-4 Division 2 of the Act. That scheme, in ss.773-778, contains a procedure for the Commission to conduct a dispute resolution process in respect of any alleged unlawful termination of employment which is in all relevant respects identical to that for general protections matters in ss. 365-370. In refusing to make an order for the production of documents the Full Bench said:

‘[8]The function of a Member of Fair Work Australia in conducting a s.776 conference is to facilitate a resolution of the claim reflected in the application through an agreement of the parties. A Fair Work Australia Member, in conducting a s.776 conference, is not empowered to determine the application or otherwise impose an outcome on the parties.

[9]The statutory requirements upon a Member in relation to a s.776 conference are:

● If satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, the Fair Work Australia Member must issue a certificate to that effect (s.777); and

● If the Member considers, taking into account all the materials before it, that an unlawful termination court application in relation to the dispute would not have a reasonable prospect of success, it must advise the parties accordingly (s.778).

[10]A s.776 conference does not involve the hearing of evidence or the undertaking of a hearing involving an assessment of the full evidentiary case which would arise in a hearing in the Federal Magistrates Court or the Federal Court of Australia. It is a conciliation process based on the (often limited) factual material raised by the parties.’

[36] The above characterisation of the Commission’s functions would apply with equal force to a s.368 conference and is inconsistent with the proposition that the Act imposes jurisdictional preconditions on the making of a s.365 application of such a nature as might require the Commission to engage in a process of determination involving the making of findings of fact based on the receipt of contested evidence.

[37]Given the similarity between the scheme in ss.773-778 and those in ss.365-370, the analysis in Hetherington-Gregory strongly suggests that s.365(1) is not to be interpreted as imposing jurisdictional prerequisites such that the Commission might be required to hold a separate hearing, receive contested evidence and make a determination going to the merits of the application and potentially affecting the applicant’s right to have his or her rights under Part 3-1 determined by a relevant court.

[38]As we have noted, s.366 provides an exception to the general proposition that the Subdivision does not confer any determinative power upon the Commission. But the express power in s.366(2), to extend the time within which an application must be made, serves to reinforce the point that where the legislature intended to confer a determinative power it did so expressly. Absent an express provision there is no legislative intent to confer a determinative power. This point is supported by an analysis of the provisions of the Act which deal with unfair dismissal applications. We deal with those provisions shortly.

[39] The second point to note about s.366 is that it does not involve any determination of the merits of a s.365 application. The section simply prescribes the time within which the entitlement to make a s.365 application must be exercised - it does not deal with the entitlement to make the application per se.

[40] For the reasons given, the content and structure of Subdivision A of Division 8 of Part 3-1 of the Act support the proposition that it is sufficient to give the Commission jurisdiction to conduct a conference under s.368 that a s.365 application to state on its face that the applicant has been dismissed and it is alleged that the dismissal was in contravention of Part 3-1. We now turn to consider the broader statutory context. In doing so it is important to bear in mind that the purpose or policy of the Act is to gleaned from a consideration of all of the relevant provisions of the Act. 9

[41] The general approach reflected in the Act is to use express language to confer a function or authorise the exercise of a power. The legislative scheme in ss.365-371 may be contrasted with the unfair dismissal provisions in Part 3-2 of the Act. Section 390 provides that the Commission may order a remedy for an ‘unfair dismissal’. Section 386 defines when a person has been ‘dismissed’ and a s.385 deals with the circumstances in which a person will have been ‘unfairly dismissed’. Section 382 deals with when a person is ‘protected from unfair dismissal’. Sections 396 and 397 are particularly relevant in the context of the current matter:

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

397 Matters involving contested facts

The FWC must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute.

[42]Section 396 directs the Commission’s attention to the jurisdictional facts which must be established before the Commission can consider the merits of an unfair dismissal application. The absence of a similar provision in relation to the conduct of a s.368 conference is telling.

...

[49]Given the anomalous results which would flow from the adoption of the interpretation advanced by the respondent, an alternative interpretation of the relevant statutory provisions which avoids the Commission effectively determining legal rights under Part 3-1 as a consequence of its statutory functions under ss.368 and 369 is to be preferred, if reasonably available. In our view, such an alternative interpretation is available.

[50]For the reasons given we do not accept that the Commission needs to be satisfied that the applicant has been ‘dismissed’ from their employment before holding a s.368 conference. It is sufficient that the Commission has before it an application that on its face alleges a dismissal in contravention of Part 3-1.” 1

[9] The Full Bench in Hewitt v Topero Nominees P/L T/a Michaels Camera Video Digital did not consider the nature of a jurisdictional challenge to the Commission dealing with a s.365 application on the basis of the operation of Subdivision B of Division 3 of Part 6-1 of the Act. However the Full Bench decision gives very clear guidance as to whether the Commission should conduct a hearing in relation to a jurisdictional challenge based on the operation of Subdivision B of Division 3 of Part 6-1 of the Act.

[10] The Full Bench identified that s.366 was an exception to the general rule that the Commission is not to conduct hearings to resolve jurisdictional objections raised against s.365 applications. The basis for s.366 being an exception was that it was an express power to extend the time within which an application must be made and that it does not involve any determination of the merits of a s.365 application.

[11] The logic of the Full Bench decision in Hewitt v Topero Nominees P/L T/a Michaels Camera Video Digital leads to the conclusion that where the Respondent to an application made under s.365 of the Act raises a jurisdictional objection based upon the operation of Subdivision B of Division 3 of Part 6-1 of the Act that such jurisdictional objection must be dealt with by the Commission.

[12] In the present matter JB Hi Fi Group P/L specifically rely upon the operation of s.725, s.727 and s.732 of Subdivision B of Division 3 of Part 6-1.

“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.

727 General protections FWC applications

(1) This section applies if:

(a) a general protections FWC application has been made by, or on behalf of, 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) resulted in the issue of a certificate under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful).

(1A) This section also applies if:

(a) a general protections FWC application has been made by, or on behalf of, 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; and

(c) a certificate in relation to the dispute has been issued by the FWC under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful); and

(d) a notification of the parties’ agreement to the FWC arbitrating the dispute has been made as referred to in paragraphs 369(1)(b) and (c).

(2) A general protections FWC application is an application under section 365 for the FWC to deal with a dispute that relates to 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.”

[13] The Explanatory Memorandum to the Fair Work Act explains Subdivision B of Division 2 of Part 6-1 of the Act as follows:

“2707. This Subdivision is intended to prevent a person ‘double-dipping’ when they have multiple potential remedies relating to a dismissal from employment by seeking to limit a person to a single remedy.

2708. Clauses 726 to 732 set out all of the potential remedies that may apply. Clause 725 is the key operative provision. It provides that if a person has made an application that falls within any of clauses 726 to 732 then they may not bring an application that falls within any of the other clauses.

2709. Each of clauses 726 to 732 deals with different potential remedies. They each set out particular circumstances in which a person may not be prevented from making an application under one of the clauses even where they have initiated an application under another clause.

2710. In all cases the anti-double dipping provisions will not apply where the initial application has:

been withdrawn; or

failed for want of jurisdiction.

2711. This is intended to ensure that a person does not miss out on a remedy because they were unable to make a competent application for another remedy or where they have realised another remedy may be more appropriate than the remedy they initially sought.”

[14] In this matter where Mr Jobson had first made an application to VEOHRC and then subsequently made a general protections application relating to dismissal (s.365) to the Fair Work Commission, s.725 of the Act would operate to prevent Mr Jobson from making his general protections application to the Fair Work Commission if his application to the VEOHRC was an application of the type referred to in s.732 of the Act.

[15] If Mr Jobson’s application to VEOHRC is an application referred to in s.732 of the Act then Mr Jobson cannot make the application under s.365 in this matter and the Commission cannot deal with that application under s.368.

[16] The operation of the provisions of Subdivision B of Division 3 of Part 6-1 of the Act requires that the Commission determine whether an application under s.365 is prevented from being made by the applicant because of the operation of Subdivision B of Division 3 of Part 6-1 of the Act.

[17] Such a determinative hearing is focussed on a narrow issue as to whether the applicant is ‘double dipping’ through conducting multiple actions. The determination of this issue does not require or permit the Commission to consider any of the merits of any of the actions which comprise the multiple actions. A jurisdictional challenge to a s.365 application based upon the operation of Subdivision B of Division 2 of Part 6-1 of the Act can be resolved through a determinative hearing which identifies whether the other action is an action specifically dealt with in one of s.726, 728, 729, 730, 731 or 732.

[18] If the s.365 application and the other action are multiple actions of the type referred to in Subdivision B of Division 2 of Part 6-1 of the Act then the Commission cannot and must not deal with the s.365 application as the applicant is prevented from making the s.365 application to the Commission.

[19] I note that the proper application of Subdivision B of Division 2 of Part 6-1 of the Act requires that a jurisdictional challenge made under this subdivision must be dealt with before the Commission can consider and decide the challenge under s.366. Even if the Commission had formed the view that an extension of time would not be granted under s.366 the Commission could not merely dismiss the application on that basis without having first determined that it had jurisdiction to accept and deal with the application on the basis of the jurisdictional challenge under Subdivision B of Division 2 of Part 6-1 of the Act.

“In relation to the dismissal”

[20] Having determined that the Commission must deal with the jurisdictional objection raised by JB Hi Fi Group P/L the next issue to be determined is whether the application made by Mr Jobson to VEOHRC is, for the purpose of s.732, an application or complaint under another law made by Mr Jobson “in relation to the dismissal”.

[21] The application or complaint made by Mr Jobson to the VEOHRC under the Equal Opportunity Act 2010 (Vic) was filed on 16 September 2013. The termination of the employment relationship between Mr Jobson and JB Hi Fi Group P/L occurred on 18 September 2013. Even though the application made to VEOHRC was made 2 days before the actual dismissal of Mr Jobson it may or may not be an application “in relation to the dismissal”. The phrase ‘in relation to’ appears in many Acts and has been considered by the Courts on several occasions.

[22] In ACCC v MUA [2001] Hill J said:

“69. .....The words "in relation to" are wide words which do no more, at least without reference to context, than signify the need for there to be some relationship or connection between two subject matters: see Smith v Federal Commissioner of Taxation at 533 per Toohey J and PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service at 328 per Toohey and Gummow JJ. But the phrase is both "vague and indefinite":see per Taylor J in Tooheys Ltd v Commissioner of Stamp Duties (NSW) at 620. Like the phrase "in respect of", the phrase "in relation to" will not, at least normally, apply to any connection or relationship no matter how remote: see Technical Products Pty Ltd v State Government Insurance Office (Qld) at 51 per Dawson J. The extent of the relationship required will depend upon the context in which the words are used.

71 As Beaumont and Lehane JJ said in Joye v Beach Petroleum NL at 285 in discussing a number of the cases dealing with "relates to":

"... it will depend upon context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connection will suffice." (references omitted)  2

[23] In ASIC v Narain, Jacobson and Gordon JJ said:

"in relation to a financial product"

66 Mr Myers QC, who appeared for Mr Narain, emphasised that the words "in relation to a financial product" are an adjectival phrase which qualify the conduct that is proscribed by s 1041H. He submitted that the phrase narrows or qualifies the breadth of the proscribed conduct and it directs attention to the characteristics of the conduct itself, not its consequences.

67 So much may be accepted. However, to narrow the scope of the conduct to that which appears "on its face", as the learned primary judge did, is in our view contrary to the meaning of s 1041H(i) considered as a whole. Indeed, it would be contrary to the well-known principles of statutory construction stated in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]- [71].

68 There is a wealth of authority for the proposition that the expression "in relation to" is extremely wide and that its meaning will be determined by the context. The leading authorities were collected and stated by Beaumont and Lehane JJ in Joye v Beach Petroleum NL (1996) 67 FCR 275 at 285; see also Australian Competition and Consumer Commissionv Maritime Union of Australia [2001] FCA 1549; (2001) 114 FCR 472 at [68] per Hill J.

69 As those cases point out, the words "in relation to" signify the need for there to be some relationship or correlation between the two subject matters that are specified.

70 But as Hill J observed in ACCC v Maritime Union of Australia at [68] there will always be a question of degree involved where the issue is the relationship between those matters.

71 What must be borne in mind is that, as Beaumont and Lehane JJ said in Joye, the context will determine whether the relationship must be direct or substantial or whether an indirect or less than substantial connection will be sufficient: Joye at 285 (citing a number of decisions of the High Court).” 3

[24] In Young, In the matter of Macryannis [2011] FCA 1272, Stone J said:

“24. While the phrase, “in relation to” is a phrase of wide import the authorities recognise that the closeness of the relationship required by the expression “must be ascertained by reference to the nature and purpose of the provision in question and the context in which it appears”; PMT Partners Pty Limited (in Liquidation) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313 per Brennan CJ, Gaudron and McHugh JJ. The issue before the High Court was the construction of s 48(1) of the Commercial Arbitration Act 1985 (NT) which gave power to extend the time fixed by an arbitration agreement for doing an act “in or in relation to an arbitration”.

1. Justices Toohey and Gummow commented, at 330, that s 48(1) was a remedial provision whose apparent object was “to mitigate the severity of harsh time limits” in an arbitration agreement. For that reason there was “no apparent call to read down the words used, or to give them any constricted operation”. Their Honours added that although interpretation of the phrase in other statutory contexts was of limited assistance, the authorities show “that the words are prima facie broad and designed to catch things which have sufficient nexus to the subject”. Having considered some examples of the interpretation of the phrase in different statutory contexts, Toohey and Gummow JJ commented, at 331:

The connection which is required by the phrase “in relation to” is a question of degree. There must be some “association” which is “relevant” or “appropriate”. The question of the relevance or appropriateness of the connection is a question which cannot be divorced from the particular statutory context.”

[25] As is clear from the authorities legislative context is everything.

[26] The purpose of the provisions of Subdivision B of Division 2 of Part 6-1 of the Act is identified in the Explanatory Memorandum as:

“2707. This Subdivision is intended to prevent a person ‘double-dipping’ when they have multiple potential remedies relating to a dismissal from employment by seeking to limit a person to a single remedy.”

[27] By its very nature Subdivision B of Division 2 of Part 6-1 of the Act is a restrictive provision designed to limit what would otherwise be permitted conduct. In this context the phrase “in relation to the dismissal” should be read as requiring a direct or substantial relationship between the action and the dismissal. A relationship which is indirect or less than substantial would not be sufficient.

[28] In the present matter Mr Diserio for JB Hi Fi Group P/L relied upon the decision of a Full Bench in Dr Bing Du v University of Ballarat 4 and contended that:

PN127. MR DISERIO: Yes, but in Dr Du's matter, as you quite rightly point out, the complaint specifically refers to the resignation; the fact that he was forced to resign. That matter only subsequently rears its head as an issue when Mr Jobson resigned his employment on the 18th. Yes, it's not specifically referred to in his application - - -

PN128. THE COMMISSIONER: If it's not specifically referred to in his application to the Victorian Equal Opportunity and Human Rights Commission, then does that complaint under another law made by Mr Jobson - is it a complaint in relation to the dismissal?

PN129. MR DISERIO: In terms of when the complaint was lodged, the answer is no.

PN130. THE COMMISSIONER: But then isn't that the critical date?

PN131. MR DISERIO: Well, Commissioner, you may well find that to be - - -

PN132. THE COMMISSIONER: No. I'm asking the question. Is that the critical date?

PN133. MR DISERIO: My view is what is the substance of the matter that is being dealt with by the complaint?

PN134. THE COMMISSIONER: No.

PN135. MR DISERIO: I'll put it a different way. If Mr Jobson is to proceed to VCAT with a complaint, it is not going to be the complaint that he has lodged on 16 September. It will be "and a result of the matters that were set out in that, I was forced to resign my employment."

PN136. THE COMMISSIONER: Yes, but he hasn't made that complaint, because you just said "if" he proceeds.

PN137. MR DISERIO: In terms of he has lodged a complaint which adumbrates all the matters that he - well, adumbrates in his claim to this commission. I understand the difference, but we say the substance of the complaint is the same.

PN138. THE COMMISSIONER: Yes, but is the test that the substance of the complaint be the same as the complaint that he makes now in relation to the dismissal - - -

PN139. MR DISERIO: Well, that's - - -

PN140. THE COMMISSIONER: No, is that the question or is the question is it a complaint made in relation to the dismissal and does "in relation to the dismissal" have to have some connotation where it directly relates - or there's a direct connection with the dismissal; as in the Dr Du matter where he says, "I'm forced to resign."

PN141. MR DISERIO: It is very clear in that case because of the words used by the applicant. It is less clear in this case because of the factual difference that you have drawn my attention to, but the answer to the issue is that phrase that you have referred to and that is "in relation to".

PN142. THE COMMISSIONER: Yes.

PN143. MR DISERIO: So the words "in relation to" are clearly used in legislative drafting and within the scheme of the Act to be a lot broader than just "the dismissal". It is "in relation to". Here, what we say, is the complaint that was made relates to "in relation to".

PN144. THE COMMISSIONER: Okay.

PN145. MR DISERIO: In fact, Commissioner, without that one wonders what the complaint is, apart from the fact that the applicant doesn't use the words because at the point he hadn't resigned, but subsequent to that he had.

and

PN171. THE COMMISSIONER: But in relation to section 732, this has to be a complaint under another law in relation to the dismissal. The last substantive paragraph of the complaint has the sentence which you took me to:

PN172. I really can't see this being resolved and me staying at JB Hi-Fi.

PN173. MR DISERIO: Yes.

PN174. THE COMMISSIONER: You say that contemplates separation.

PN175. MR DISERIO: Yes. I can't take you any further than the words of the document.

PN176. THE COMMISSIONER: Yes, but the paragraph I've taken you to says:

PN177. I will now follow up with them on Wednesday, 18 September, with my fiance, when we go in to find out as to why I'm not rostered when I am still employed.

PN178. That tends to suggest it's a complaint that does not relate to dismissal.

PN179. MR DISERIO: It's quite clear that Mr Jobson made the application while he was still employed.

PN180. THE COMMISSIONER: Yes.

PN181. MR DISERIO: But all I can indicate is the intent of the document, which is wide-ranging - at the conclusion of it, seems to make it very clear. Yes, I agree with you that the intention of the paragraph you've taken me to - at that point seems to clearly indicate that Mr Jobson had this intention to remain, but if I can say by the end of that document it seems to me to be quite clear that it's the contrary. The document is wavering, but the last point is the point that I said, "This being resolved in me staying."

PN182. In terms of the 20th - I don't know that it's in formal evidence, but Mr Jobson's medical certificate covered him to the 20th. All I can say is as far as we were concerned, he is absent from work from the beginning of that certificate period to the 20th. As to why Mr Jobson has seen fit to resign on the 18th, is a matter known to Mr Jobson and not a matter that you're at liberty to inquire into. I don't think, Commissioner, I can take the matter any further, but I understand - - -

PN183. THE COMMISSIONER: I wanted to give you the opportunity of commenting on that in light of the way the Du decision - - -

PN184. MR DISERIO: Yes.

PN185. THE COMMISSIONER: - - - had relied specifically upon the contents of the complaint to Victorian Equal Opportunity and Human Rights Commission to make the finding that that complaint was a complaint relating to dismissal and therefore covered by section 732.

PN186. MR DISERIO: I'm not conceding this, Commissioner - this is not a concession - but I understand that it is open to you to make a distinction between the Du case and this case. I'm suggesting to you that that wouldn't be correct on the basis of the words "in relation to" in the matter. I say the subject matter of the complaint, together with the situation that the applicant was in when the complaint was dealt with by the Victorian Equal Opportunity and Human Rights Commission, is quite clear.

PN187. I can't take it any further than that though, because the facts are the facts and the material is the material, but I think we would say it would be - in my view - an unrealistic distinction to say that in the facts of this case that should be the determining factor between the application of Du to this case or not; but I understand the distinction and I understand the opportunity you've given me to respond to it.

[29] Whilst the substance of the matter which gives rise to the action under the Equal Opportunity Act (Vic) and to the action under the Fair Work Act 2009 is essentially the same as Mr Diserio contends there is a critical distinction between the two actions. The action under the Fair Work Act was commenced after the termination of the employment relationship and directly related to the termination of the employment relationship. The action under the Equal Opportunity Act (Vic) was commenced before the termination of the employment relationship and in circumstances where dismissal was not threatened or pending and where the probability of dismissal was indeterminate.

[30] It is relevant to note that the termination of the employment relationship occurred as a result of the resignation of Mr Jobson. The determination of the issue: Does the resignation by Mr Jobson constitute a dismissal within the meaning of the Fair Work Act? is not a matter that I can determine. The decision of the Full Bench in Hewitt v Topero Nominees P/L T/a Michaels Camera Video Digital makes this very clear and Mr Diserio concedes this point. 5 To embark upon that enquiry would take the Commission well beyond what is needed to resolve the jurisdictional challenge based on Subdivision B of Division 2 of Part 6-1 of the Act.

[31] Given that JB Hi Fi Group P/L disputes that Mr Jobson was dismissed within the meaning of the Act then this very strongly suggests that the Commission could not be satisfied that the action initiated by Mr Jobson under the Equal Opportunity Act (Vic) was an action “in relation to the dismissal”.

[32] The plain language of Subdivision B of Division 2 of Part 6-1 of the Act makes it clear that a jurisdictional prerequisite for invoking that subdivision is that there must be a “dismissal” within the meaning of the Act.

[33] In Du v University of Ballarat the Full Bench never considered or determined whether Dr Du had been dismissed within the meaning of the Act. The Full Bench came to the conclusion at pn [17] that Dr Du’s action under the Equal Opportunity Act (Vic) was an action in relation to the dismissal on the basis that Dr Du alleged “he had had to resign from his employment by the University due to race discrimination by representatives of the University”.

[34] It appears to me that there is an inherent unsoundness in the decision of the Full Bench in Du v University of Ballarat in relation to Subdivision B of Division 2 of Part 6-1 of the Act. The anti double dipping provisions are clearly predicated upon the existence of a dismissal and on the pursuit of a remedy in relation to that dismissal. If Subdivision B of Division 2 of Part 6-1 of the Act had referred to actions in relation to the termination of the employment relationship rather than dismissal then it would not matter whether the termination of the employment relationship was caused by the employer or the employee. However the use of the word ‘dismissal’ clearly means that the termination of the employment relationship must be within the meaning given to ‘dismissed’ by s.386 of the Act. It would strain the ordinary rules of statutory interpretation to give “dismissal” in Subdivision B of Division 2 of Part 6-1 of the Act a different meaning to that in s.386 of the Act.

[35] In most instances where Subdivision B of Division 2 of Part 6-1 of the Act is relied on there will be no issue as to the existence of the jurisdictional fact that a “dismissal” within the meaning of s.386 has occurred and in such circumstances the Commission can concentrate on determining whether the requisite relationship exists between the dismissal and the action initiated by the dismissed employee.

[36] Where as in the present matter the very existence of the jurisdictional fact of “dismissal” is in issue the Commission cannot, given the Full Bench decision in Hewitt v Topero Nominees P/L T/a Michaels Camera Video Digital, conclude that an action under another law made by the applicant is “in relation to the dismissal”.

[37] In all of the circumstances of the present matter and having had regard to the relevant authorities cited above I conclude that the action initiated by Mr Jobson under the Equal Opportunity Act (Vic) is not for the purpose of s.732 an application or complaint under another law that has been made by Mr Jobson in relation to the dismissal.

Extension of Time

[38] The employment relationship between Mr Jobson and JB Hi Fi Group P/L ended on 18 September 2013. The application to the Commission under s.365 of the Act was made on 18 November 2013. The application was out of time. An application should have been made by 9 October 2013 in order to have been within the time limit set by s.366(1)(a) of the Act.

[39] Mr Jobson seeks that the Commission pursuant to s.366 allow a further time for him to make the application in this matter. JB Hi Fi Group P/L opposes the grant of an extension of time under s.366.

[40] Mr Jobson by way of a written submission in support of an application for an extension of time contended as follows:

“I waited at least 2 weeks for a response to my complaint from JbHifi through the VEOHRC, at which time they still had not agreed to conciliation nor given reason for taking my leave or wether (sic) they would be returning it to me. I was informed they wanted to arrange that I come to head office for a meeting and not with the VEOHRC. I thought at that time it best to seek out a lawyer to properly look at my case and help me, even if I couldn't afford it because I was still without an income and hadn't received all of my entitlements.

After many calls to to (sic) places like Jobwatch (which a machine says they are busy and hangs up on you every time) and a few other law firms I was having no luck, I also called the SDA and spoke to them, they called me back and informed me they couldn't refer my case to their lawyers because I had joined them after the initial incident, but they wished me well and were sorry they couldn't help, I rang their lawyers Maurice & Blackburn anyways. I was told someone would return my call to schedule a meeting, I was called back a few days later and told they had too many cases going in the employment sector but I should try Kelly Workplace Lawyers so I gave them a call and booked an appointment, I finally got someone who would look at my case.

I went to Kelly's Workplace Lawyers for a consultation with Mr Joseph Kelly on the 8/10/2013 which cost me $385 cash, money I had to borrow. I was then told that I should have lodged my complaint with Fair Work Australia and that it was now too late because I had to do it within 21 days. I realise now that on the day I saw him it was still within the timeframe but I trusted his legal advice on the matter at the time and went with what he told me. After a weeks of talks between lawyers, a failed conciliation at VEOHRC, and mounting legal fees, I decided I would take the matter to the fair work commission since I was now aware upon myself reviewing things that I had been given the wrong advice. I no longer use Kelly workplace lawyers services.”

[41] Mr Jobson also supplied a copy of the receipt for the $385 paid to Kelly Workplace Lawyers on 8 October 2013.

[42] JB Hi Fi Group P/L in a written submission opposing the grant of an extension of time contended as follows:

“6. On 7 November 2013, JB Hi-Fi and Mr Baric attended a conciliation conference at the VEOHRC conducted by Mr Adam Boyce. Mr Jobson was represented by Mr Joseph Kelly from Kelly Workplace Lawyers. The Respondents were represented by Mr Mark Diserio from Lander & Rogers.

7. Following the conciliation conference at the VEOHRC and up until about 4.00pm on Friday, 22 November 2013, Lander & Rogers was engaged in communications with Kelly Workplace Lawyers with a view to resolving Mr Jobson's complaint to the VEOHRC. This, among other things, included sending Kelly Workplace Lawyers a proposed Settlement and Release Agreement and several telephone and/or email exchanges between the respective lawyers about the proposed terms of settlement. Subsequently, Lander & Rogers were informed that Kelly Workplace Lawyers no longer acted for Mr Jobson.

And

18. There is no basis for Mr Jobson's contention that he is the victim of representative error in that, given the basis of his allegations against the Respondents, his claim could be lawfully made to a number of entities with jurisdiction to deal with his complaint, including but not limited to the VEOHRC. Each of these entities have co-extant jurisdiction (along with the FWC) to deal with the substance of Mr Jobson's complaint.

19. In considering whether to extend time, the FWC should particularly note that Mr Jobson was also the architect of the time his employment with JB Hi-Fi ended and he was not terminated at the initiative of the employer.

20. The FWC should exercise its discretion to reject Mr Jobson's application for an extension of time.”

[43] At the hearing of this matter on 28 January 2014 both Mr Jobson and JB Hi Fi Group P/L relied on their written submissions and neither sought to make any further oral submissions on this issue.

[44] Section 366(2) of the Act provides as follows:

“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[45] In Nulty v. Blue Star Group Pty Ltd a Full Bench considered the term ‘exceptional circumstances’ as it is used in s.366:

“[10]It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

‘[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the Act.’

[11]Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12]The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[46] In any consideration of the existence or otherwise of the presence of “exceptional circumstances” the Commission must take into account each of the criteria specified in s.366(2).

The reason for the delay

Any action taken by the person to dispute the dismissal

[47] I will deal with these two criteria simultaneously.

[48] Mr Jobson clearly and unequivocally blames his then legal representative for giving him incorrect advice which led him not to make an application within time.

[49] Mr Jobson contends that he did take action to dispute the dismissal by seeking legal advice from Kelly Workplace Lawyers and had Mr Kelly not mislead Mr Jobson then an application could and would have been made in time.

[50] The time limit set by s.366(1)(a) meant that Mr Jobson had until 9 October 2013 to make his application under s.365. Mr Jobson attended Kelly Workplace Lawyers on 8 October 2013 and was told that he was out of time to make an application under s.365. This advice was clearly not correct.

[51] I accept that Mr Jobson did take action to dispute the dismissal within the time limit set by s.366(1)(a) and had Mr Kelly of Kelly Workplace Lawyers not given Mr Jobson inaccurate advice then it is likely that Mr Jobson would have made an application in time.

[52] Representative error may constitute an exceptional circumstance.

[53] These two criteria support Mr Jobson’s application for an extension of time.

Prejudice to the employer (including prejudice caused by the delay

[54] JB Hi Fi Group P/L does not contend that they will suffer any prejudice if an extension of time is granted. The absence of prejudice does not of itself justify an extension of time. 6In the present matter this criteria is neutral.

The merits of the application

[55] This is not a merits hearing and it is not appropriate to use this criteria to embark on a merits hearing. I note the following three Full Bench decisions.

[56] In Kyvelos v Champion Socks Pty Limited, a Full Bench of the Commission said:

“[14] In considering whether to accept an application which has been lodged outside the time prescribed ... the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits... It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case... In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.”  7 (Underlining added)

[57] In Mappas v TAAU Australia Pty Ltd, a Full Bench of the Commission said:

“[44] The appellant claims that his termination was for a prohibited reason. In particular he claims that he had complained to the Department of Employment and Workplace Relations about the wages being paid by the respondent, that he had brought to the attention of the respondent advice from the Department that the respondent was obliged to pay wages that were no less than the Federal Minimum Wage and that he was terminated within hours of a discussion with the owner of the respondent in which he insisted that the respondent comply with the Department’s advice. The respondent contends that the termination of the appellant’s employment had nothing to do with any complaint by the appellant to the Department but was due to a downturn in the business of the respondent caused by a number of factors including damage arising from a cyclone. It is not possible to determine the merits of the substantive application without a full hearing. Certainly, it is not open to this Full Bench to conclude, in the absence of such a hearing, that the merits of the appellant’s substantive application are sufficiently poor that this should weigh materially against exercising the discretion to extend time in favour of the appellant.” 8 (Underlining added)

[58] In Nottage v National Australia Bank Ltd, a Full Bench said:

“[23] There is a contest on the merits. In light of the evidentiary material on appeal it is clear the appellant will challenge most of the evidence on which the respondent has indicated it will rely. Findings of fact will be necessary and the seriousness of conduct as found weighed in the balance. We cannot conclude that the application has no merit and it is not necessary that we go any further than that.” 9 (Underlining added)

[59] In the present matter this criteria is neutral.

Fairness as between the person and other persons in a like position.

[60] There are clearly no other persons in a like position to Mr Jobson and this criteria is neutral.

Conclusion as to Extension of Time

[61] Having taken into account each of the criteria in s.366(2) I am satisfied that there are exceptional circumstances and that I should allow Mr Jobson until close of business on 18 November 2013 to make an application under s.365 of the Act.

Further Proceedings

[62] The application in this matter was filed within the further period allowed by the Commission under s.366 of the Act and the application will be listed for conference convened pursuant to s.368 of the Act. A notice of listing will be sent to the parties in due course.

COMMISSIONER

Appearances:

D. Jobson and B. Hailes for the Applicant

M. Diserio for the Respondents

Hearing details:

2014.

Melbourne:

January 28

 1   Hewitt v Topero Nominees P/L T/a Michaels Camera Video Digital, [2013] FWFCB 6321.

 2   ACCC v MUA, [2001] FCA 1549.

 3   ASIC v Narain, [2008] FCAFC 120.

 4   Dr BingDu v University of Ballarat, [2011] FWAFB 5225.

 5   Transcript at PN182.

 6   Brodie-Hanns v MTV Publishing Ltd, (1995) 67 1R 298 at 300, 31 October 1995, Marshall J.

 7   Kyvelos v Champion Socks Pty Limited , Print T2421.

 8   Mappas v TAAU Australia Pty Ltd, [2007] AIRCFB 260.

 9   Nottage v National Australia Bank Ltd, [2007] AIRCFB 716.

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