Dias v Commonwealth Bank Group

Case [2021] FCCA 601


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…

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AGLC
Dias v Commonwealth Bank Group [2021] FCCA 601
Case
[2021] FCCA 601
Decision Date

CaseChat Overview and Summary

In the Federal Circuit Court, Ms Dias, a litigant in person, brought proceedings against the Commonwealth Bank Group. The dispute concerned various alleged adverse actions taken by the Bank, some of which Ms Dias sought to pursue as claims in the Court. The Bank objected to the Court's jurisdiction to hear several of these claims.

The primary legal issue before the Court was whether it possessed jurisdiction to determine the claims brought by Ms Dias, particularly those identified by the Bank as the fourth, fifth, seventh, eighth, ninth, tenth, twelfth, fourteenth, sixteenth, and seventeenth adverse actions. This question hinged on the interpretation and application of section 725 of the *Fair Work Act 2009* (Cth), which restricts a dismissed employee from making multiple applications or complaints in relation to the same dismissal if another relevant section of the Act already applies.

The Court considered the Bank's contention that several of Ms Dias' claims were made "in relation to" her dismissal and therefore fell within the prohibition of section 725. The Court noted that section 725 is designed to prevent an applicant from "double dipping" by pursuing multiple statutory remedies for the same dismissal. Applying this principle, the Court found that the seventeenth adverse action, which alleged procedural unfairness related to Ms Dias' dismissal, was a matter that the Court had no jurisdiction to hear. The Court concluded that the Bank's objections to jurisdiction were substantiated.

Consequently, the Court dismissed Ms Dias' applications filed on 14 September 2020 and 22 October 2020, as they were not substantiated in light of the jurisdictional limitations identified.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.CONSIDERATIONBank’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].