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
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
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
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].