Dias v Commonwealth Bank Group
[2021] FCCA 601
•5 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Dias v Commonwealth Bank Group [2021] FCCA 601
File number(s): SYG 3329 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 5 May 2021 Catchwords: INDUSTRIAL LAW – Fair Work – application for summary dismissal – double dipping – applicant previously bringing unfair dismissal proceedings in the Fair Work Commission – whether the general protections and discrimination claims now brought relate to the dismissal considered. Legislation: Fair Work Act 2009 (Cth), ss 12, 340, 341, 351, 365, 368, 370, 372, 386, 387, 725, 726, 727, 728, 729, 730, 731, 732, 733
Workplace Relations (Work Choices) Amendment Act 2005 (Cth)
Workplace Relations Act 1996 (Cth), ss 170HB, 672, 674, 725
Workplace Relations and Other Legislation Amendment Act1996 (Cth)
Federal Circuit Court Rules 2001 (Cth)
Cases cited: Andrade v Goodyear & Dunlop Tyres (Aust) Pty Ltd [2018] FCCA 634
Beggs v Login System Pty Ltd [2013] FCCA 526
Birch v Wesco Electrics (1966) Pty Ltd [2012] FMCA 5
Candice Dias v Commonwealth Bank (U2018/12352)
Candice Dias v Commonwealth Securities Limited (C2019/6209)
Chacko v Compass Group (Australia) Pty Ltd [2010] FWA 7418
Cook v ACI Operations Pty Ltd [2011] FWA 3715
Deva v University of Western Sydney (2009) 229 FLR 380
Faulkner v Tidewater Marine Australia Pty Ltd (No. 2) [2015] FCCA 2218
Gration v Remote King & Anor [2015] FCCA 2617
Hazeldine v Wakerley [2017] FWCFB 500
HP Mercantile Pty Ltd v Commissioner of Taxation (2005) 143 FCR 553
Isles v Northern Territory Police Fire and Emergency Services t/as NTPSES [2010] FWA 9147
Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200
Newman v East Yarra Friendly Society Pty Ltd trading As My Chemist Pharmacy [2011] FCA 1262
O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356
Pitrau v Barrick Mining Services Pty Ltd (2012) 259 FLR 447
Poole v Rod Baker & Co (2011) 207 IR 264
Project Blue Sky Inc & Ors v Australian Broadcasting Authority(1998) 194 CLR 355
Railpro Services Pty Ltd v Flavel [2015] FCA 504
Rentuza v Westside Auto Wholesale [2009] FMCA 1022
Shea v TruEnergy Services Pty Ltd (No 1) [2012] FCA 628
Stannard v McIntyre and Ors (2004) 140 FCR 249
Number of paragraphs: 101 Date of hearing: 25 March 2021 Place: Sydney The Applicant appeared in person Counsel for the Respondent: Ms B Byrnes Solicitors for the Respondent: Ashurst INTERLOCUTORY ORDERS
SYG 3329 of 2019 BETWEEN: CANDICE DIAS
Applicant
AND: COMMONWEALTH BANK GROUP
Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
5 MAY 2021
THE COURT ORDERS THAT:
1.Pursuant to rule 13.10 of the Federal Circuit Court Rules 2001 (Cth), the amended application filed on 29 April 2020 is dismissed as incompetent insofar as it relates to the fourth, fifth, seventh, eighth, ninth, tenth, twelfth, fourteenth, sixteenth and seventeenth adverse actions as set out in that application.
2.The Applications in a Case filed on 14 September 2020 and 22 October 2020 are dismissed.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
By an amended Application in a Case filed on 25 September 2020, the respondent in the principal proceedings (the Bank) seeks orders under rule 13.10 of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) summarily dismissing parts of the applicant’s (Ms Dias) claims in the principal proceedings.
Ms Dias has herself sought interlocutory relief by her Application in a Case (interlocutory application) filed on 14 September 2020, as augmented by her Application in a Case filed on 22 October 2020.
The basis for the Bank’s application is that the Court does not have jurisdiction to determine these claims because:
(a)they “relate to” Ms Dias’ dismissal from her employment with the Bank on 13 November 2018 and therefore breached the rule against double dipping in s 725 of the Fair Work Act 2009 (Cth) (Fair Work Act); and
(b)the claims have been brought outside the 14 day time period for bringing dismissal disputes and in the absence of the correct certificate from the Fair Work Commission under s 368(2)(a) of the Fair Work Act as required by s 370 of the Fair Work Act.
The Bank also opposes the orders sought in Ms Dias’ Application in a Case as “baseless and misconceived”.
The following background statement is derived from the submissions of the parties.
Ms Dias was employed by the Bank in the position of Account Manager.[1]
[1] Affidavit of Ms Mary Azzi made on 25 September 2020 (Azzi Affidavit) at [6].
On 27 July 2018, Mr Ian Manwaring, Executive Manager of the Bank's Chatswood Branch and Mr Craig Young, Team Leader, met with Ms Dias to discuss a potential breach by her of Bank policy and/or procedure as she had disclosed confidential information to an unauthorised person.[2]
[2] Azzi Affidavit at [7] and Annexure “MA-1”.
Ms Dias received a formal written warning about this conduct on 31 July 2018.[3]
[3] Azzi Affidavit at [8] and Annexure “MA-2”.
Following this formal written warning, Ms Dias allegedly engaged in the following further instances of misconduct:[4]
(a)refusing to follow reasonable management directives to attend workplace training on 16 August 2018, 17 August 2018 and 22 August 2018;
(b)refusing to attend a meeting invitation from the General Manager on 24 August 2018;
(c)emailing a document to her personal email address that contained a customer’s confidential information, including names, address and CID on 4 September 2018;
(d)failing to follow reasonable management directive to contact her manager once removed prior to attending the Darling Park office in the CBD on 18 September 2018;
(e)unilaterally going outside the Group’s Workplace Grievance Review (WGR) process by attempting to escalate a grievance outside of the Group’s standard process and in circumstances where Ms Dias had been advised that the matter had been finalised.
[4] Annexure “MA-3” to Azzi Affidavit.
On 28 September 2018, the Executive Assistant to Mr Zac Kuzmanoski, General Manager Corporate NSW/ACT, sent an Outlook invitation to Ms Dias for a meeting on 2 October 2018, which attached a formal allegations letter.[5]
[5] Azzi Affidavit at [9] and Annexure “MA-3”.
On 2 October 2018, Ms Dias attended a meeting with Mr Kuzmanoski and Ms Temira Grandi, Workplace Relations Specialist to respond to the allegations.[6]
[6] Azzi Affidavit at [10].
On 4 October 2018, Ms Dias emailed Mr Kuzmanoski a response to the letter of allegations.[7]
[7] Azzi Affidavit at [11].
On 5 October 2018, the Bank was served with a general protections application not involving the dismissal, filed by Ms Dias.[8]
[8] Azzi Affidavit at [14].
On or about 12 October 2018, the Bank filed a response to Ms Dias’ general protections application.[9]
[9] Azzi Affidavit at [15].
On 12 November 2018, Ms Dias attended a meeting with Mr Kuzmanoski and Ms Sahar Radfar, Workplace Relations Specialist. During this meeting, Ms Dias was advised of the Bank’s decision to terminate her employment.[10]
[10] Azzi Affidavit at [12].
On 13 November 2018, Ms Dias’s employment was terminated on the basis that the majority of allegations had been substantiated and it was determined that the appropriate disciplinary penalty was dismissal.[11]
[11] Azzi Affidavit at [13].
On 30 November 2018, Ms Dias filed an unfair dismissal application in the Fair Work Commission in proceedings numbered U2018/12352.[12]
[12] Azzi Affidavit at [16].
On 29 March 2019, 15 and 16 April 2019 and 17 May 2019 Ms Dias' unfair dismissal application was heard before Deputy President Sams.[13]
[13] Azzi Affidavit at [19].
On 19 September 2019 Deputy President Sams published a decision dismissing Ms Dias' unfair dismissal application.[14]
[14] Azzi Affidavit at [20].
On 9 October 2019 Ms Dias filed an appeal against the decision of Deputy President Sams in the Fair Work Commission in proceedings numbered C2019/6209.[15]
[15] Azzi Affidavit at [21].
On 11 November 2019 Ms Dias' appeal application was listed before a Full Bench of the Fair Work Commission on the question of permission to appeal.[16]
[16] Azzi Affidavit at [22].
On 26 November 2019 the Full Bench of the Fair Work Commission published a decision refusing Ms Dias permission to appeal.[17]
[17] Azzi Affidavit at [23].
Ms Dias then filed an application with this Court and a Form 4 “Claim under the Fair Work Act 2009 alleging a contravention of a general protection – paragraph 45.08(b)”.
Ms Dias maintains that none of the claims in her application are related to her dismissal.
THE CURRENT PROCEEDINGS
As already noted, these proceedings began with an application in the Court’s Fair Work Division filed with a Form 4 on 17 December 2019. The matter was referred for mediation which was ostensibly successful. Regrettably, however, there was a disagreement between the parties flowing from the mediation, in particular about the terms of a deed of release. The Court is not aware of the details of that dispute and it would be inappropriate to delve into what occurred during the mediation.
The interlocutory applications followed the post-mediation dispute.
The Bank’s application is supported by the Azzi Affidavit and the substantial bundle of annexures to that affidavit. There was a technical defect in the annexure sheet for Annexure MA-13 of that affidavit which was corrected shortly before the hearing of the interlocutory applications on 25 March 2021.
Ms Dias raised technical objections in relation to Ms Azzi’s affidavit (and the Bank’s interlocutory application before it was amended) but I did not consider there were any continuing technical objections.
Ms Dias’ interlocutory applications were supported by her affidavits filed on 14 September 2020 and 22 October 2020. The parties also filed written submissions in relation to their interlocutory applications. The Bank’s submissions were filed on 25 February 2021 and those of Ms Dias were filed on 18 March 2021.
Ms Dias is a litigant in person and her documents were a mixture of facts and factual assertions, submissions and procedural complaints. Counsel for the Bank raised several objections to Ms Dias’ documents. I treated some parts as submissions rather than evidence and received other parts as evidence, subject to relevance and submissions.
CONSIDERATION
Bank’s contentions
It is the Court’s first duty to be satisfied that it has jurisdiction to deal with the application and matters in respect of which the Court has no jurisdiction must be dismissed under rule 13.10 of the Federal Circuit Court Rules.[18]
[18] Rentuza v Westside Auto Wholesale [2009] FMCA 1022 at [23] and [24] per Lucev FM.
The Bank submits that what is described as the fourth adverse action, fifth adverse action, seventh adverse action, eighth adverse action, ninth adverse action, tenth adverse action, twelfth adverse action, fourteenth adverse action, sixteenth adverse action and seventeenth adverse action are claims “in relation to” Ms Dias’ dismissal and therefore this Court does not have jurisdiction to determine them because of s 725 of the Fair Work Act.
Section 725 of the Fair Work Act provides that:
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 apply.
Section 728 of the Fair Work Act refers to a general protection court application in relation to the dismissal that has not been withdrawn or failed for want of jurisdiction.
Section 729 of the Fair Work Act refers to an unfair dismissal application made by the person in relation to the dismissal and where the application has not been withdrawn; failed for want of jurisdiction; or failed because the Fair Work Commission was satisfied the dismissal was a case of genuine redundancy.
The requirements of s 725 of the Fair Work Act are:
(a)a former employee of an employer making an application or complaint must have been dismissed;
(b)that dismissed former employee must have made an application or complaint of a kind referred to in ss 726-732 of the Fair Work Act that has not been withdrawn or failed for want of jurisdiction; and
(c)the dismissed person “must not make” another application or complaint of a kind referred to in ss 726-732 of the Fair Work Act “in relation to the dismissal” unless the initial application has been withdrawn or failed for want of jurisdiction.
The same dismissal
There can be no dispute that Ms Dias has been “dismissed” at the initiative of her employer[19] for substantiated allegations of misconduct.
[19] Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at 205; Fair Work Act, s 12 and s 386(1).
The statutory purpose of s 725 of the Fair Work Act is evident from the Explanatory Memorandum to the Fair Work Bill 2008. It is to prevent an applicant from “double dipping” when he or she has multiple potential statutory remedies available relating to a dismissal from employment. So much is clear from the following parts of the Explanatory Memorandum:[20]
This Part deals with cases where there may be more than one remedy available for the same conduct or circumstances. It ensures that people have access to an appropriate remedy but also ensures that they are not entitled to more than one remedy in such cases.
…
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…
[20] See Hazeldine v Wakerley [2017] FWCFB 500, [39].
The effect of s 725 of the Fair Work Act is not that neither application is valid but that the applicant is forced to elect between both applications.[21]
[21] Chacko v Compass Group (Australia) Pty Ltd [2010] FWA 7418 at [20]; Isles v Northern Territory Police Fire and Emergency Services t/as NTPSES [2010] FWA 9147; Railpro Services Pty Ltd v Flavel [2015] FCA 504 at [121].
The predecessor provisions to s 725 were ss 672 and 674 of the Workplace Relations Act 1996 (Cth) (Workplace Relations Act) and, before the Workplace Relations (Work Choices) Amendment Act 2005 (Work Choices Act), s 170HB of the Workplace Relations Act which was inserted by the Workplace Relations and Other Legislation Amendment Act1996 (Cth) (WROLA Act). The case law in relation to these provisions indicate that these provisions have the purpose of preventing employees making more than one application in respect of the same termination of employment.
The Explanatory Memorandum to the WROLA Act stated that the provision “rules out dual applications ... in relation to a single termination of employment, except for entitlements arising from the termination.”[22] The Explanatory Memorandum to the Work Choices Act confirmed that the purpose of the provisions was to “stop ‘double dipping’ in cases where an employee can choose to commence unfair dismissal proceedings” under the Workplace Relations Act and another law. The provisions express a “general intention to limit, but not entirely prevent, multiple proceedings in relation to a disputed termination of employment”.[23]
[22] Paragraph 7.98 of the Explanatory Memorandum to the WROLA Bill; see also Explanatory Memorandum to the WROLA Bill in respect of Amendments moved in the Senate
[23] Stannard v McIntyre and Ors (2004) 140 FCR 249 at 254 [13]; see also Deva v University of Western Sydney (2009) 229 FLR 380 at 383 [12]
In the present proceedings, the Bank asserts that while Ms Dias filed with the Court a Form 4 evincing an intention to bring a general protections application not in relation to her dismissal, when one examines the substance of her application, many paragraphs relate to her dismissal on 13 November 2018.
These aspects of Ms Dias’ claims are said to relate directly to the same termination of employment on 13 November 2018 that was the subject of her unfair dismissal application which she unsuccessfully appealed to the Full Bench of the Fair Work Commission. Therefore, under s 725 of the Fair Work Act she is precluded from making a claim in relation to this same dismissal under the general protections jurisdiction of this Court.
The claims are “in relation to” the dismissal
It is well established that the phrase “in relation to” is of wide import. In Project Blue Sky Inc & Ors v Australian Broadcasting Authority,[24] McHugh, Gummow, Kirby and Hayne JJ stated at [87]:
The words “relate to” are extremely wide. They require the existence of a connection or association between the content of the Standard and the Australian content of programs. What constitutes a sufficient connection or association to form the required relationship is a matter for judgment depending on the facts of the case. No doubt the association or connection must be a relevant one in the sense that it cannot be accidental or so remote that the Standard has no real effect or bearing on the Australian content of programs.
[24] (1998) 194 CLR 355
In O’Grady v Northern Queensland Company Ltd,[25] the High Court acknowledged the width of the phrase “in relation to” while recognising that it may be circumscribed by context. Brennan and McHugh JJ, who were in the minority, concluded that the appeal should be allowed. Brennan J stated at 365:
The phrase “in relation to” is wide in its connotation and cannot be limited by a priori formulae designed to exhaust its meaning.
[25] (1990) 169 CLR 356
McHugh J stated at 376:
The prepositional phrase “in relation to” is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters.
Dawson J stated at 367:
The words “in relation to”, read out of context, are wide enough to cover every conceivable connexion. But those words should not be read out of context…
Toohey and Gaudron JJ stated at 374:
Although “in relation to” is an expression of broad import, in context with “arising” it presupposes a direct connexion between a presently existing action, suit or proceeding and mining or a mining tenement, not merely an incidental connexion.[26]
[26] Cited in Shea v TruEnergy Services Pty Ltd (No 1) [2012] FCA 628 at [71]-[76] per Dodds Streeton J.
The use of the phrase “in relation to” in s 725 of the Fair Work Act does not require exclusivity or predominance, but rather a relationship, other than a tenuous or remote relationship.[27] The relationship must be a “relevant relationship” read in the context of the provision and bearing in mind the statutory purpose of the provision.[28]
[27] Birch v Wesco Electrics (1966)Pty Ltd [2012] FMCA 5; Cook v ACI Operations Pty Ltd [2011] FWA 3715.
[28] O’Grady v Northern Queensland.
Further, the degree of relationship implied by the necessity to find a relationship will depend upon the context in which the words are found, including the subject matter of the enquiry, the legislative history, and the facts of the case.[29]
[29] HP Mercantile Pty Ltd v Commissioner of Taxation (2005) 143 FCR 553 at 563 per Hill J (with whom Stone and Allsop JJ agreed).
One of the matters to be considered is what mischief s 725 of the Fair Work Act was intended to remedy. As outlined above, the statutory purpose of s 725 of the Fair Work Act is to prevent an applicant, having filed an application or complaint of one type in relation to their dismissal, from filing an application or complaint of another type in relation to their dismissal, put simply, it is to limit an applicant to a single remedy.[30]
[30] Birch v Wesco Electrics.
As outlined above, the statutory purpose of s 725 of the Fair Work Act is to force applicants to make a forensic decision about which statutory remedy to pursue where the claims made relate to the same termination of employment arising out of a decision made by an employer in its capacity as an employer in relation to an employee in his or her capacity as an employee.
In this case, the Bank submits that the aspects of Ms Dias’ claims that relate to her dismissal are:
Fourth adverse action
This aspect of Ms Dias’ claims relates to the Bank’s directive to Ms Dias’ to attend workplace training on 16 August 2018, 17 August 2018 and 22 August 2018.
Ms Dias recites her reasons for refusing to attend this training and why she considered the directive to attend training unfair.
The first allegation of misconduct which was found to be substantiated and relied upon by the Bank when dismissing Ms Dias was her refusal to attend training on these dates.
In the Fair Work Commission unfair dismissal proceedings, Deputy President Sams was satisfied that Ms Dias’ failure to attend directed training on 16, 17 and 22 August 2018 was a deliberate refusal to comply with a lawful and reasonable direction of the employer. It constituted a breach of her employment contract and the Bank’s policies and procedures. It amounted to misconduct.[31]
Deputy President Sams found that this was one of the incidents of misconduct that demonstrated a pattern of conduct which, when viewed cumulatively and objectively, disclosed an intention by Ms Dias not to be bound by her contract of employment with the Bank and found that there was a valid reason for Ms Dias’ dismissal.[32]
Fifth adverse action
This aspect of Ms Dias’ claims concerns the second allegation of misconduct which was relied upon to support the Bank’s decision to dismiss Ms Dias. The allegation was “refusing to attend a meeting invitation from the General Manager on 24 August 2018”.
Deputy President Sams made no finding on this allegation but made some critical observations about Ms Dias’ conduct.[33] As it was one of the reasons relied upon by the Bank to dismiss Ms Dias a relevant relationship exists between this claim and Ms Dias’ dismissal.
Seventh adverse action
This aspect of Ms Dias’ claims concerns the third allegation of misconduct which was relied upon to support the Bank decision to dismiss Ms Dias. The allegation was “emailing a document to her personal email address that contained a customer’s confidential information, including names, address and CID on 4 September 2018”.
Ms Dias describes this as a “false allegation” and claims that making this allegation against her was an instance of “pregnancy discrimination”.
Deputy President Sams found that allegation three had been made out. Ms Dias’ deliberate conduct of emailing confidential emails to her personal email address was in breach of her contract of employment and the Bank’s Policies and Procedures. It constituted misconduct.[34]
Deputy President Sams found that this was one of the incidents of misconduct that demonstrated a pattern of conduct which, when viewed cumulatively and objectively, disclosed an intention by Ms Dias to be bound by her contract of employment with the Bank and found that this was one of the incidents that demonstrated a pattern of conduct which was a valid reason for Ms Dias’ dismissal.[35]
Eighth adverse action
This aspect of Ms Dias’ claims concerns the fourth allegation of misconduct which was relied upon to support the Bank’s decision to dismiss Ms Dias. The allegation was “failing to follow reasonable management directive to contact her manager once removed prior to attending the Darling Park office in the CBD on 18 September 2018”.
Ms Dias describes this as a “false allegation” and proceeds to make out her case for why this allegation should not have been substantiated.
Deputy President Sams rejected the applicant’s claim that Mr Manwaring approved her attendance at Darling Park on 18 September 2018. Her conduct was a further example of failing to follow a lawful and reasonable direction. Her conduct was in breach of her contract of employment and the Bank’s policies and procedures. It constituted misconduct and was one of the incidents that demonstrated a pattern of conduct which was a valid reason for Ms Dias’ dismissal.[36]
Ninth adverse action
This aspect of the Ms Dias’ claims concerns the fifth allegation of misconduct which was relied upon to support the Bank’s decision to dismiss her. The allegation was “unilaterally going outside the Group’s WGR process by attempting to escalate a grievance outside of the Group’s standard process and in circumstances where Ms Dias’ had been advised that the matter had been finalised.”
Deputy President Sams found that this allegation has been made out. By seeking to involve the CEO, the applicant was in breach of the WGR process and therefore in breach of the Bank’s policies and procedures, this conduct was most certainly inappropriate and unacceptable. It was one of the incidents of misconduct which demonstrated a pattern of conduct which was a valid reason for the Ms Dias’ dismissal.[37]
Tenth adverse action
This aspect of Ms Dias’ claims concerns the meeting held on 2 October 2018 with her Manager twice removed Mr Kuzmanoski.
This meeting was convened to allow Ms Dias to respond to the allegations of misconduct that had been made against her. It formed part of the process leading up to her dismissal.
Ms Dias complains about a “threatened dismissal” and offer of resignation and that Mr Kuzmanoski decided to terminate her services anyway, which is in effect a claim about her dismissal.
Twelfth adverse action
This aspect of the claim squarely raises Ms Dias’ dismissal. She complains that her services were terminated on 12 November 2018 and about the consequences for her of that decision.
Fourteenth adverse action
This aspect of the claim relates to the process followed by the Bank when dismissing Ms Dias. She claims that she was given 24 hours notice for a meeting which amounted to an unreasonable refusal of a support person.
Deputy President Sams considered this factor when assessing whether Ms Dias’ dismissal was unfair under s 387 of the Fair Work Act. He found that Ms Dias had insisted that the Bank’s policy requiring flexibility with organising meetings was not applied in her case. He considered that at least 24 hours notice was a reasonable period for a disciplinary meeting and that in any event, it was much longer in this case. He stated that “flexibility does not mean the employee can veto when a meeting is convened or insist on unreasonable conditions beforehand”. He was satisfied that this factor told against a finding of unfairness.[38]
When refusing permission to appeal, the Full Bench of the Fair Work Commission found “the proposition that the Deputy President’s conclusion that 24 business hours’ notice of a disciplinary meeting constitutes a reasonable opportunity to bring a support person attracts the public interest is lacking in authenticity, in circumstances where Ms Dias consistently declined to bring a support person to any meeting she had with CSL management no matter how much notice she was given”.[39]
Sixteenth adverse action
This aspect of the claim squarely raises Ms Dias’ dismissal. She complains that her services were terminated two weeks after the conference at the Fair Work Commission on 22 October 2018 and about the consequences for her of that decision.
Seventeenth adverse action
This aspect of the claim relates to the meeting held on 12 November 2018 where Ms Dias was advised that a decision had been made to dismiss her. She complains about procedural aspects of this meeting, such as a lack of forewarning of the decision, the refusal to allow her to record the meeting, the conduct of a team member from Human Resources who was in attendance at the meeting and that she was escorted out of the building by security.
Ms Dias raised these issues before the Fair Work Commission as recorded at [86] of Deputy President Sam’s decision.[40] Deputy President Sams addressed these points when considering “any other matter” that may tell for or against a finding that the dismissal was unfair under s 387 of the Fair Work Act. Deputy President Sams considered the evidence and accepted that Ms Dias had acted improperly in the meeting of 12 November 2018 by initially refusing to hand the Bank’s property over to Mr Kuzmanoski.[41]
[31] Candice Dias v Commonwealth Bank (U2018/12352) [227]-[237]: Annexure “MA-13” to the Azzi Affidavit.
[32] Candice Dias v Commonwealth Bank (U2018/12352) [260]: Annexure “MA-13” to the Azzi Affidavit.
[33] Candice Dias v Commonwealth Bank (U2018/12352) [238] – [239]: Annexure “MA-13” to the Azzi Affidavit.
[34] Candice Dias v Commonwealth Bank (U2018/12352) [240] – [248]: Annexure “MA-13” to the Azzi Affidavit.
[35] Candice Dias v Commonwealth Bank (U2018/12352) [260]: Annexure “MA-13” to the Azzi Affidavit.
[36] Candice Dias v Commonwealth Bank (U2018/12352) at [249]-[251] and [260].
[37] Candice Dias v Commonwealth Bank (U2018/12352) at [252]-[254] and [260].
[38] Candice Dias v Commonwealth Bank (U2018/12352) at [266]-[267].
[39] Candice Dias v Commonwealth Securities Limited (C2019/6209) at [15]: Annexure “MA-15” to the Azzi Affidavit.
[40] Candice Dias v Commonwealth Securities Limited (C2019/6209) at [86].
[41] Candice Dias v Commonwealth Securities Limited (C2019/6209) at [281].
The Bank submits that the “relevant relationship” exists because these claims concern the same matters that the Fair Work Commission considered when determining whether Ms Dias’ dismissal was unfair under s 387 of the Fair Work Act, namely:
(a)the allegations of misconduct made against Ms Dias. Whether there was a “valid reason” for the dismissal is one of the factors the Fair Work Commission must determine when deciding whether the dismissal was unfair under s 387(a) of the Fair Work Act;
(b)the procedural steps taken by the employer leading up to the dismissal. The procedure adopted by an employer are factors the Fair Work Commission must determine when deciding whether a dismissal is unfair under s 387(b), (c) and (d) and (h); and
(c)the decision to dismiss her, the manner of her dismissal and its consequences are all factors that are considered by the Fair Work Commission when assessing whether a dismissal is “harsh” under s 387 of the Fair Work Act.
Ms Dias also submitted before the Fair Work Commission that her dismissal was pregnancy discrimination[42] and this factor was taken into account by Deputy President Sams under s 387(h) of the Fair Work Act. Deputy President Sams considered this submission at [281] by stating: [43]
As a last resort, the applicant claimed she had been discriminated against on the grounds of her pregnancy. To suggest the Bank, with thousands of female employees, would discriminate against her for this reason is ludicrous. Moreover, there was not a jot of evidence to support this claim, not even evidence which the applicant might have concocted. I note that this was the claim in her General Protections application, which I understand she has not sought to pursue in the Courts. In my view, this was a last ditch attempt to deflect the reality of her misconduct for which the Bank’s process had properly and objectively dealt with.
[42] Annexure “MA -12” at page 8, 10, 11,14 and Annexure “MA-11” at pages 7-8 to the Azzi Affidavit.
[43] Candice Dias v Commonwealth Securities Limited (C2019/6209) at [281].
There is said to be a substantial overlap in the factual matrix and evidence to be relied upon in relation to both applications. Furthermore, Ms Dias’ material filed to date is said to bear a striking similarity to her submissions made to the Fair Work Commission.[44] Accordingly, the Bank submits that the relevant relationship exists for the purposes of s 725 of the Fair Work Act and the aspects of Ms Dias’ claims that relate to her dismissal must be summarily dismissed under rule 13.10 of the Federal Circuit Court Rules.
[44] See Annexure “MA-12” to the Azzi Affidavit.
The Bank notes that none of the impugned paragraphs of Ms Dias’ application concern benefits to which Ms Dias was entitled because she was dismissed and therefore do not engage s 733 of the Fair Work Act.
Jurisdictional pre-requisites not met
The Bank further submits that what is described as the fourth adverse action, fifth adverse action, seventh adverse action, eighth adverse action, ninth adverse action, tenth adverse action, twelfth adverse action, fourteenth adverse action, sixteenth adverse action and seventeenth adverse action are, in substance, claims that relate to Ms Dias’ dismissal and therefore may only be commenced in Court by complying with the jurisdictional pre-requisites under s 370 of the Fair Work Act.
Section 370 of the Fair Work Act is titled “Taking a dismissal dispute to Court”. Pursuant to s 370 of the Fair Work Act, a person entitled to apply under s 365 for the Fair Work Commission to deal with a dispute must not make a general protections court application “in relation to” the dispute unless:
(a)the Fair Work Commission has issued a certificate under s 368(3)(a) in relation to the dispute; and
(b)the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on application made during or after those 14 days.
Section 370 of the Fair Work Act is said to establish a mandatory pre-requisite. Hence Ms Dias “must not make” a general protections court application “in relation to the dispute” unless certain requirements are satisfied, including, relevantly, a s 368(3) certificate.[45]
[45] Andrade v Goodyear & Dunlop Tyres (Aust) Pty Ltd [2018] FCCA 634 at [146].
A person is entitled to apply to the Fair Work Commission to deal with the dispute under s 365 of the Fair Work Act if:
(a)the person has been dismissed; and
(b)the person alleges the person was dismissed in contravention of this Part.
“[D]ispute” referred to in s 365 of the Fair Work Act is not defined elsewhere in the Fair Work Act, but is simply assumed to “co-exist” with a person’s dismissal allegedly in contravention of Part 3-1.[46]
[46]Shea at [55] per Dodds Streeton J.
Ms Dias has clearly been dismissed and as set out in the table above, the Bank submits that the impugned allegations amount in substance to her being dismissed in contravention of this part. While she made an application to the Fair Work Commission prior to her dismissal pursuant to s 372 of the Fair Work Act, she did not make an application after she had been dismissed, electing instead to make a claim for unfair dismissal.
Under s 372(b) of the Fair Work Act, if an employee wishes to make an application disputing their dismissal that must be done under s 365 and cannot be disputed under s 372 of the Fair Work Act.
Accordingly, Ms Dias does not have a certificate under s 368(3)(a) of the Fair Work Act which deals only with dismissal disputes because when she made her application to the Fair Work Commission she had not yet been dismissed. As she has no s 368(3)(a) certificate, her court application was not brought within 14 days after the date the certificate was issued either.
The Bank submits that, even if the Court exercised its discretion to waive the 14 day time limit, Ms Dias does not have a certificate under s 368(3)(a) of the Fair Work Act and this cannot be remedied as only the Fair Work Commission can issue the certificate and the certificate is a prerequisite to the exercise of the Court’s jurisdiction.[47]
[47] Newman v East Yarra Friendly Society Pty Ltd trading As My Chemist Pharmacy [2011] FCA 1262 at [5] per North J; Poole v Rod Baker & Co (2011) 207 IR 264 at [24]-[25] per O’Sullivan FM; Shea at [30];Pitrau v Barrick Mining Services Pty Ltd (2012) 259 FLR 447; Beggs v Login System Pty Ltd [2013] FCCA 526; Faulkner v Tidewater Marine Australia Pty Ltd (No. 2) [2015] FCCA 2218 at [32]; Gration v Remote King & Anor [2015] FCCA 2617.
Accordingly, the Bank submits that the Court does not have jurisdiction to determine any aspect of Ms Dias’ claim that “relates to” her dismissal. As set out above, the fourth adverse action, fifth adverse action, seventh adverse action, eighth adverse action, ninth adverse action, tenth adverse action, twelfth adverse action, fourteenth adverse action, sixteenth adverse action and seventeenth adverse action are claims that have a relevant relationship to Ms Dias’ dismissal and therefore these claims must be summarily dismissed under rule 13.10 of the Federal Circuit Court Rules.
Ms Dias’ Application in a Case is “baseless and misconceived”
Ms Dias’ Application in a Case is largely a submission supporting her claims of adverse action rather than urging the Court to make particular orders. To the extent extraneous matters are raised, Ms Dias has not identified any power of the Court under which such orders could be made and for this reason are baseless and misconceived. For the sake of completeness, the Bank responds as follows.
The Bank rejects Ms Dias’ contention that its Application in a Case is misleading. Its Amended Application in a Case clearly contains the lawyers code of Ms Azzi (the instructing solicitor) and states it was prepared by Ms Bronwyn Byrnes (of counsel).
The Bank rejects Ms Dias’ contention that its Application in a Case was filed outside the time specified by the Court’s orders. Ms Dias has put on no evidence to support this contention. The Bank is aware that the documents were served on 29 May 2020.
Ms Dias is seeking to make much of the different entity names used by the Bank. Ms Dias’ employer is said to have been Commonwealth Securities Limited which is said to be the proper respondent to the claim. It is part of the Bank and uses Commonwealth Bank letterhead. There is no entity “Commonwealth Bank Group (Pay Package Commsec)”.
The Bank submits that the Court should not entertain any of Ms Dias’ allegations about the Bank’s conduct at mediation as these discussions were confidential and without prejudice and do not fall within the Court’s jurisdiction to determine.
Contrary to Ms Dias’ contentions, Ms Azzi’s affidavit read for the purposes of this interlocutory hearing, contains her lawyer code. That the witness’ signature was inadvertently missing from “MA-13” does not render the affidavit null and void. The Bank has rectified this prior to the hearing.
For the reasons set out above, Ms Dias’ unfair dismissal application and the Fair Work Commission’s unfair dismissal decision are said to be relevant to the Bank’s application and there has been no undue repetition in the Bank’s materials.
The Bank entirely rejects any claim that Ms Azzi, Ms Mansfield or Ms Byrnes have not been following Court orders and have been deceiving or misleading the Court knowingly or recklessly. This is a very serious allegation and is entirely unsupported by the evidence of Ms Dias.
Ms Byrnes’ representation to the Fair Work Commission that the Bank did not have the CCTV footage requested by Ms Dias was made in good faith on the basis of instructions provided by the Bank.
The Bank submits that any dispute about Mr Manwaring’s job title and the location he worked is more appropriately dealt with in any substantive hearing to the extent it is relevant to Ms Dias’ claim of pregnancy discrimination under s 340 and s 351 of the Fair Work Act.
Ms Azzi’s affidavit is said to be a fair representation of the matters the Bank considered relevant to support the Bank’s application. That it does not refer to a meeting on 3 September 2018 that Ms Dias considers important is not misleading. Ms Dias may lead evidence of this meeting at the substantive hearing to the extent it is relevant to her claim of pregnancy discrimination under s 340 and s 351 of the Fair Work Act.
Ms Dias’ contentions
Ms Dias made extensive oral submissions at the hearing on 25 March 2021. In essence, she contends that none of the alleged instances of adverse action in her principal amended application relate to her dismissal from her employment. She contends that for the greater part (she stated around 90 per cent) the adverse action amounted to pregnancy discrimination. She also alleges breaches of s 340 and s 341 of the Fair Work Act as a result of her making a complaint or enquiry in relation to her employment.
Ms Dias also touched upon earlier complaints made about the conduct of the Bank’s legal representation. Some of these are technical complaints and some are complaints of a more serious nature amounting to allegations of impropriety.
While Ms Dias’ submissions concerning the context of her Fair Work application were properly put, and I have considered them, I reject the attacks made on the conduct of the Bank’s legal representatives. Minor technical flaws in documents have been corrected and I have otherwise discerned in these proceedings nothing that could be the subject of criticism against the Bank’s lawyers.
Resolution
I accept the Bank’s submission that this Court has no jurisdiction to deal with matters encompassed in Ms Dias’ unfair dismissal application to the Fair Work Commission. In my view, s 725 of the Fair Work Act, when read with ss 728 and 729, provides a complete answer to these proceedings insofar as they relate to the unfair dismissal proceeding. It is also correct, as the Bank submits, that, insofar as these proceedings involve a dismissal, the jurisdictional pre-requisites in s 370 have not been met, although that issue is academic given the bar imposed by s 725.
The real question to answer is what, if any, part of Ms Dias’ claim in this Court relates to her dismissal. It is common ground that Ms Dias made a complaint to the Fair Work Commission in the form of a general protections application not involving dismissal on 5 October 2018.[48] At that time Ms Dias complained of pregnancy discrimination and being unfairly treated. However, she sought escalation on the basis that false allegations had been made against her in order to terminate her employment due to her pregnancy and she anticipated being terminated sometime between 8 and 10 October 2018. The remedy Ms Dias sought was an end to the alleged discrimination and to keep her job. She also sought a requirement that the Bank followed fair policies and practices for all employees in relation to alleged misconduct.
[48] Annexure MA8 to the Azzi Affidavit
Ms Dias asserted a link between her pregnancy and what she described as a “baseless warning” on 3 September 2018 as well as false allegations of misconduct on 28 September 2018 and a baseless warning letter on 31 July 2018. She alleged that the baseless warning formed part of her annual performance review for the 2017-2018 financial year. She also complained of being deprived of an equitable bonus.
Ms Dias went on to refer in more detail to performance issues, including by reference to comparators with whom she worked.
The Bank’s response to the application is contained at Annexure MA-9 to the Azzi Affidavit. The Bank denied the alleged discrimination, harassment or threats but noted that a disciplinary process was then underway regarding asserted misconduct. By way of a letter dated 28 September 2018, the Bank warned Ms Dias that it was considering disciplinary action, including termination of her employment. It followed that termination was clearly at that time in prospect.
As noted earlier, Ms Dias’ employment was terminated on 13 November 2018 and on 30 November 2018, Ms Dias lodged an unfair dismissal application with the Fair Work Commission.[49]
[49] the application is at Annexure MA-10 to the Azzi Affidavit
In addition to the dismissal, Ms Dias repeated her allegations concerning the “baseless” warning letter dated 31 July 2018 and the “false allegations letter” dated 28 September 2018. Ms Dias went on to make extensive claims relating to the process leading up to her dismissal. This encompassed, in my view, the entire disciplinary process.
I accept that Ms Dias’ general protections application was the subject of attempted conciliation and that, following the failure of that attempt, Ms Dias was informed of her entitlement to apply to the Court, which she subsequently did. However, to the extent that the same issues were raised in her later unfair dismissal application, and were dealt with by the Fair Work Commission, this Court has no jurisdiction to deal with them for the reasons explained above and consistently with the submissions of the Bank.
The first, second and third adverse action claims made by Ms Dias in the present proceedings relate in one way or another to her annual performance review for the financial year ended 30 June 2018. The Bank does not dispute the Court’s jurisdiction to deal with those aspects of the claim and I find that the Court has jurisdiction.
However, the fourth and fifth adverse action assertions are inextricably linked to the disciplinary action taken against Ms Dias by her employer and were dealt with by Deputy President Sams in his decision on the unfair dismissal claim. I accept the Bank’s submission that this Court has no jurisdiction to deal with those assertions.
The sixth adverse action asserted by Ms Dias concerns a failure to implement the outcome of a meeting on 3 September 2018. The Bank does not dispute the Court’s jurisdiction to deal with that issue and I find that the Court does have jurisdiction to deal with it.
The seventh and eighth asserted adverse actions centre upon the allegations of misconduct against Ms Dias which go to the heart of the disciplinary process and were dealt with by Deputy President Sams. I find that this Court has no jurisdiction to deal with those assertions. Likewise, the ninth adverse action also concerns the misconduct allegations which were dealt with by Deputy President Sams. In addition, the tenth alleged adverse action formed part of the disciplinary process and is not severable from the unfair dismissal claim. The Court has no jurisdiction to deal with these asserted adverse actions.
The eleventh asserted adverse action is an allegation concerning deprivation of maternity leave and it is not in dispute that the Court has jurisdiction to deal with it. I so find.
The twelfth asserted adverse action is an allegation of unfair dismissal which, plainly, this Court cannot deal with.
The Court has jurisdiction to deal with the thirteenth adverse action, which concerns alleged discrimination in the payment of bonuses or other awards.
The fourteenth alleged adverse action is set up as a claim of pregnancy discrimination but the particulars of it relate to the disciplinary process and issues of procedural fairness. Those issues were dealt with by Deputy President Sams. This Court has no jurisdiction to deal with that aspect of the claim.
The fifteenth asserted adverse action is, in effect, a claim of discrimination relating to a lost opportunity. The Court has jurisdiction to deal with that part of the claim.
The sixteenth adverse action asserted is clearly focused on the termination of Ms Dias’ employment. In substance, it seeks to draw a link between Ms Dias’ dismissal and her general protections claim to the Fair Work Commission.
The seventeenth adverse action contains allegations of procedural unfairness relating to Ms Dias’ dismissal. They were addressed in general terms by Deputy President Sams. I find that the Court has no jurisdiction to deal with these aspects of the matter.
CONCLUSION
The Bank’s objections to the Court’s jurisdiction in its Application in a Case filed on 25 September 2020 have been substantiated. Ms Dias’ Applications in a Case filed on 14 September 2020 and 22 October 2020 have not been substantiated and will be dismissed.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 5 May 2021
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