DILENA v DOWELL'S TRAFFIC MANAGEMENT PTY LTD
[2012] FMCA 60
•3 February, 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DILENA v DOWELL'S TRAFFIC MANAGEMENT PTY LTD | [2012] FMCA 60 |
| INDUSTRIAL LAW – Application to summarily dismiss claim – application to Fair Work Australia not made within 60 days of effect of dismissal – whether s.369 certificate invalid – certificate invalid – Court’s jurisdiction not engaged because s.369 certificate invalid. |
| Fair Work Act 2009, ss.340, 346 , 351(1), 352, 365, 366, 366(2), 367, 368, 369, 371, 576, 595, 595(1), 725 Federal Court of Australia Act 1976, s.31A Federal Magistrates Act 1999, s.17A Federal Magistrates Court Rules 2001, r.13.10(a) |
| CEPU v Active Tree Services Pty Ltd [2011] FMCA 535 George v Fletcher (Trustee) [2010] FCAFC 53 Minister of Immigration and Ethnic Affairs v Sabri Polat (1995) 37 ALD 394 Rutherford v Hausner [2011] FMCA 1033 Spencer v Commonwealth of Australia (2010) 241 CLR 118 |
| Applicant: | SHANE DILENA |
| Respondent: | DOWELL'S TRAFFIC MANAGEMENT PTY LTD |
| File Number: | BRG 887 of 2011 |
| Judgment of: | Jarrett FM |
| Hearing date: | 27 January, 2012 |
| Date of Last Submission: | 27 January, 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 3 February, 2012 |
REPRESENTATION
| Advocate for the Applicant: | Mr Crank |
| Advocates for the Applicant: | Construction Forestry Mining and Energy Union |
| Solicitor for the Respondent: | Ms Donaghy |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
The application filed on 7 October, 2011 and amended on 12 December, 2011 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 887 of 2011
| SHANE DILENA |
Applicant
And
| DOWELL’S TRAFFIC MANAGEMENT PTY LTD |
Respondent
REASONS FOR JUDGMENT
By an application in a case filed on 9 January, 2012 the respondent seeks orders that the amended claim filed by the applicant on 12 December, 2011 be summarily dismissed pursuant to rule 13.10(a) of the Federal Magistrates Court Rules 2001 on the grounds that the applicant has no reasonable prospect of successfully prosecuting the claim. Alternatively, the respondent seeks an order that certain paragraphs or parts of paragraphs of the applicant’s amended claim be struck out.
The application raises the issues that concern the efficacy to be given to a certificate issued by Fair Work Australia pursuant to s.369 of the Fair Work Act 2009, namely whether the certificate issued in this case has any effect given:
a)The application in respect of which it was issued was commenced outside of the time limit specified for the commencement of such applications; or
b)The application in respect of which it was issued was commenced in contravention of s.725 of the Act because at the time that application was made, Mr Dilena had a pending application for unfair dismissal before Fair Work Australia.
This application was heard before me on 27 January, 2012. At the hearing, I dealt with another ground upon which Dowell’s argued that the amended application should be summarily dismissed. I determined that the proceedings should not be summarily dismissed on the ground that Mr Dilena had no reasonable prospect of successfully prosecuting his claim because he could not prove that he had been dismissed by Dowell’s. I took the view that the evidence potentially permitted of a finding that the applicant had been dismissed by Dowell’s. Therefore, I declined to dismiss the proceedings on that basis.
However, I reserved my decision in respect of the balance of the application. These are my reasons and decision on the balance of the application.
These proceedings
Mr Dilena’s application is best described as a claim under the Act alleging dismissal in contravention of a general protection. He alleges that he became unwell at work, left his work site with his employer’s knowledge and, when he was well enough to return his employer dismissed him, either expressly or constructively by not giving him any more work when work was available.
Mr Dilena claims that he was the subject of impermissible adverse action (dismissal) because his dismissal was for reasons of:
a)A mental disability from which he was suffering (and thereby Dowell’s contravened s.351(1) of the Fair Work Act2009);
b)A temporary absence from work by reason of that disability (and thereby Dowell’s contravened s.352 of the Fair Work Act2009);
c)Mr Dilena exercising a workplace right to make a claim for compensation in respect of an injury (and thereby Dowell’s contravened s.340 of the Fair Work Act2009);
d)Complaints that he made in relation to his employment (and thereby Dowell’s contravened s.340 of the Fair Work Act2009);
e)A benefit or responsibility he had under a workplace law as a safety representative (and thereby Dowell’s contravened s.340 of the Fair Work Act2009);
f)His involvement in industrial activity related to his position as a safety representative (and thereby Dowell’s contravened s.346(b) of the Fair Work Act2009);
As the parties recognise, such claims are first pursued by application to Fair Work Australia. Applicants are forced down that path by making the issue of a certificate by Fair Work Australia pursuant to s.369 of the Act a pre-condition to a Court application. As Riethmuller FM observed in Rutherford v Hausner [2011] FMCA 1033 at [8]:
“It is clear that the broad statutory scheme is to require that employment disputes of this nature are first pursued at Fair Work Australia through the conciliation conference process prior to court proceedings issuing.”
Mr Dilena commenced an unfair dismissal claim in Fair Work Australia on 11 May 2011. In that application he alleged that he was dismissed on 14 December, 2010. On 5 September 2011 he commenced a general protections application in Fair Work Australia in which he alleged that he was dismissed by Dowell’s. In that application he alleged that he was dismissed “no later than 5 September, 2010”. Four days later on 9 September 2011 he discontinued his unfair dismissal application.
The general protections Fair Work Application application was the subject of a conference that failed to resolve the dispute. Dowell’s participated in the conference process. Thereafter, Fair Work Australia purported to issue a certificate pursuant to s.369 of the Act to Mr Dilena.
Dowell’s submits that Mr Dilena’s proceedings ought to be dismissed in their entirety because:
a)Mr Dilena does not demonstrate, on his material, that he was dismissed by Dowell’s. Dowell’s case is that Mr Dilena abandoned his employment. I have already mentioned that I declined to dismiss the proceedings on this ground.
b)This Court should not entertain the claim as the s.369 certificate issued by Fair Work Australia (which is a pre-condition to this Court’s jurisdiction in the claim) should never have been issued because:
i)Mr Dilena impermissibly had two applications pending before Fair Work Australia and therefore the second application which was submitted in time, and anything done in respect of that application (including the issue of the certificate), was a nullity or invalid; or
ii)The second application was commenced outside of the time limit specified for the commencement of such applications and thus, that application and anything done in respect of that application (including the issue of the certificate), was a nullity or invalid.
Summary dismissal
Relevantly, Rule 13.10(a) of the FMCR states:
Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim.
I observe that the above rule follows s.17A of the Federal Magistrates Act1999 which is in the same terms as s.31A of the Federal Court of Australia Act1976. That rule and those sections provide for the Court to give summary judgment in an appropriate case. Relevantly, s.17A of the Federal Magistrates Act 1999 is set out in the following terms:
Summary judgment
…
(2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
The approach taken in cases dealing with s.31A of the Federal Court Act 1976 are generally seen as apposite in cases dealing with s.17A of the Federal Magistrates Act1999: George v Fletcher (Trustee) [2010] FCAFC 53 at [75] and [105].
The words of s.31A mean what they say and there is little point in attempting to formulate other phrases to encapsulate their meaning: Spencer v Commonwealth of Australia (2010) 241 CLR 118, per Hayne, Crennan, Kiefel and Bell JJ at [58] – [59]. The Court must embark upon a “practical judgment…as to whether the applicant has more than a ‘fanciful’ prospect of success”: per French CJ and Gummow J at [25]. What is required by the section is set out by Hayne, Crennan, Kiefel and Bell JJ as follows at [60]:
… The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.
Consideration
The functions of Fair Work Australia are set out in s.576 of the Act. Relevantly, that section provides:
576 Functions of FWA
(1) FWA has the functions conferred by this Act in relation to the following subject matters:
…
(h) general protections (Part 3-1);
…
(2) FWA also has the following functions:
(a) dealing with disputes as referred to in section 595;
…
Section 595 of the Act is in the following terms:
595 FWA’s power to deal with disputes
(1) FWA may deal with a dispute only if FWA is expressly authorised to do so under or in accordance with another provision of this Act.
(2) FWA may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:
(a) by mediation or conciliation;
(b) by making a recommendation or expressing an opinion.
(3) FWA may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if FWA is expressly authorised to do so under or in accordance with another provision of this Act.
Example: Parties may consent to FWA arbitrating a bargaining dispute (see subsection 240(4)).
(4) In dealing with a dispute, FWA may exercise any powers it has under this Subdivision.
Example: FWA could direct a person to attend a conference under section 592.
(5) To avoid doubt, FWA must not exercise any of the powers referred to in subsection (2) or (3) in relation to a matter before FWA except as authorised by this section.
It is clear from s.595(1) of the Act that Fair Work Australia may only deal with a dispute with which it is authorised to deal with under the Act. Fair Work Australia is authorised to deal with Mr Dilena’s dispute if he applies to Fair Work Australia for it to do so under s.365 of the Act. If he applies under s.365 of the Act, Fair Work Australia must conduct a conference to deal with the dispute. If Fair Work Australia is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be unsuccessful, Fair Work Australia must issue a certificate to that effect: s.369 of the Act.
The “dispute” referred to in s.369 is the same dispute as that referred to in ss.365, 368, and 371 of the Act: CEPU v Active Tree Services Pty Ltd [2011] FMCA 535 at [34]. The “dispute” is the amalgam of the applicant’s dismissal and the allegation that the applicant was dismissed in contravention of Part 3-1 of the Act: s.365 of the Act.
Fair Work Australia is only authorised to conduct a conference to deal with a dispute if there has been an application to Fair Work Australia under s.365 of the Act. Such an application must be lodged within the time period provided for in s.366 of the Act. Thus, such an application must be made to Fair Work Australia within 60 days after the relevant dismissal took effect or within such further period as Fair Work Australia allows.
The application made by Mr Dilena to Fair Work Australia to deal with his dispute with Dowell’s was not an application under s.365 of the Act because it was not made within 60 days after the dismissal took effect. Even on the most benevolent view of the evidence, Mr Dilena’s dismissal took effect from some time in May, 2011. That is when Mr Dilena claims that he realised he had been dismissed: see paragraph 19 of his affidavit filed on 24 January, 2012.
Apart from the fact that Fair Work Australia accepted his application there is nothing to suggest that Fair Work Australia allowed any extension to the period within which Mr Dilena could make his application. Such a determination by Fair Work Australia would have required a consideration of the matters set out in s.366(2) of the Act after giving both Mr Dilena and Dowell’s an opportunity to make representations about those matters. Neither party contended that Fair Work Australia followed that course.
I accept the submission that in the circumstances Fair Work Australia had no statutory mandate to deal with Mr Dilena’s dispute. The fact that Dowell’s participated in the conference convened by Fair Work Australia pursuant to s.367 is of no moment because even if that is seen as a tacit acceptance of Fair Work Australia’s authority to deal with the dispute, the parties cannot confer upon Fair Work Australia, by agreement, a function that Fair Work Australia does not have a statutory mandate to perform: Minister of Immigration and Ethnic Affairs v Sabri Polat (1995) 37 ALD 394.
I accept that the certificate, therefore, has no effect and although purports to be a certificate issued pursuant to s.369 of the Act, it is not. The existence of a certificate issued pursuant to s.369 of the Act is a necessary condition to the jurisdiction of this Court in this application: s.371(1)(a) of the Act. Its absence is fatal to the application because the jurisdiction of this Court is not engaged.
Accordingly, I am satisfied that Mr Dilena has no reasonable prospect of prosecuting his claim. The proceedings must be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Date: 3 February 2012
CORRECTIONS:
·First page of cover sheet and orders, add “725” to the sections of the Fair Work Act 2009.
·Second and third pages of reasons for judgment, paragraphs 6(a) – (f), add the year “2009” after the words “Fair Work Act” and italicise “Fair Work Act 2009.”
·Third page of reasons for judgment, paragraph 8, second line add “11 May 2011” after the word “on.”
·Third page of reasons for judgment, paragraph 8, third line add “5 September 2011” after the word “on.”
·Third page of reasons for judgment, paragraph 8, sixth line, change “nine” to “four” and add “on 9 September 2011” after the word “later.”
·Third page of reasons for judgment, paragraph 9, first line, remove “FWA” and add the words “Fair Work Australia.”
·Fifth page of reasons for judgment, paragraph 13 add the years “1976” after “Federal Court Act” and “1999” after “Federal Magistrates Act” and italicise “Federal Court Act 1976” and Federal Magistrates Act 1999.”
·Fifth page of reasons for judgment, paragraph 14, seventh line, remove the word “the” after the word “by.”
·Seventh page of reasons for judgment, paragraph 17, second line, add the word “with” after the word “deal.”
·Eighth page of reasons for judgment, paragraph 21, sixth line, add the words “an opportunity” after the word “Dowell’s.”
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