Dr Daniel Krcho v University of New South Wales T/A UNSW Sydney
[2020] FWC 4435
•21 AUGUST 2020
| [2020] FWC 4435 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.773—Termination of employment
Dr Daniel Krcho
v
University of New South Wales T/A UNSW Sydney
(C2020/1574)
COMMISSIONER JOHNS | SYDNEY, 21 AUGUST 2020 |
Unlawful termination dispute - objection raised as to jurisdiction - operation of s. 723 - operation of s. 351 (2) extinguishing general protection.
[1] This matter involves an application made under s. 773 of the Fair Work Act 2009 (FW Act) for the Fair Work Commission (Commission) to deal with an unlawful termination dispute (Form F9 Application). The Form F9 Application was made by Dr Daniel Krcho (Applicant) against the University of New South Wales (UNSW/Respondent).
[2] This decision is made in respect of a jurisdictional objection taken by UNSW, which is a national system employer 1. For the reasons set out below, the decision is necessarily interim in nature.
[3] UNSW seeks to have the Form F9 Application dismissed because it contends that the Commission has no jurisdiction to entertain it. The basis for the alleged absence of jurisdiction involves the operation of s. 723 of the FW Act. Section 723 of the FW Act is in the following terms:
“723 Unlawful termination applications
A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.”
[4] Put simply, in its Form F9A response to the Form F9 Application, UNSW contends that “the Applicant is entitled to make a general protections court application”, with the consequence that he is statute barred from making a claim under s.773.
History of litigation in the Commission
[5] The present application is best understood in the context of other proceedings in the Commission in which the parties have been involved.
[6] On 11 October 2018 the Applicant made an application for a stop-bullying order. 2 In short, the Applicant “alleges various elements of “mob” bullying conduct by his Faculty Director, immediate Supervisor and School Manager in the context of his employment.”3
[7] The Applicant apprehended that his employment might be terminated.
[8] On 31 October 2018 the then Anti-bullying Jurisdiction Panel Head, Commissioner Hampton, declined to make interim orders preventing UNSW from terminating the Applicant’s employment. 4
[9] On 24 December 2018 his Honour, Deputy President Sams, adjourned the substantive stop bullying proceedings until the Applicant could advise that he had been certified fit to prepare for, and conduct his case.
[10] Thereafter, the Applicant made another application for interim relief. On 26 July 2019 the Deputy President delivered a decision ex tempore dismissing the application for interim relief. He confirmed the same in a written decision on 31 July 2019. 5
[11] The Applicant appealed the decision of the Deputy President dismissing the application for interim relief. However, the appeal was lodged out of time and the Full Bench did not allow a further period for the lodgement of the notice of appeal. 6
[12] On 23 January 2020 the Deputy President dismissed a further (third) application made by the Applicant for interim relief. 7 On 30 January 2020 that decision was also appealed.8
[13] The long history of litigation means that the substantive application for stop-bullying orders has never been heard.
[14] It is possible that it may never be heard because of an intervening act following the lodgement of the second appeal on 30 January 2020. On 20 February 2020 UNSW terminated the Applicant’s employment.
[15] The termination letter stated that the reason for dismissal was misconduct. That misconduct was said to arise out of alleged factual circumstances that caused UNSW not to believe it would receive the Applicant’s co-operation to be able to explore a return to work. UNSW formed the view that the Applicant:
a) “failed to attend a scheduled independent medical appointment (IME) thereby failing to comply with lawful and reasonable directions of [his] employer; and
b) indicated, on multiple occasions, an unwillingness to co-operate in UNSW’s endeavours to achieve a return to work, including refusing to participate in any facilitation process with Career Capital.” 9
[16] The termination of the Applicant’s employment by UNSW is the subject of the present application before me. The Applicant disputes that he failed to comply with lawful and reasonable directions. He disputes that there was a valid reason to terminate his employment. He contends that the termination of his employment was unlawful because it was for grounds prohibited by the FW Act. Specifically, in the Form F9 Application the Applicant identified the following unlawful grounds:
a) Temporary absence from work because of illness or injury;
b) The filing of a complaint against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
c) The participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
d) Discrimination – age;
e) Discrimination – physical or mental disability;
f) Discrimination – political opinion; and
g) Discrimination – national extraction or social origin.
[17] As a result of the how each party characterises the reason for the termination of employment there is a contest between them about whether the reason/s for dismissal is/are:
a) an innocent (lawful) reason as advanced by UNSW, being the Applicant’s misconduct; or
b) a sinister reason as advanced by the Applicant, being unlawful grounds.
[18] It is not my role to make any finding about the substantive and operative reason 10 for the termination of employment. That is a matter for a court.11 The reason/s for the termination are a question of fact which must be answered in the light of all the facts established in the proceeding. It will involve a consideration of the reason/s of the person who made the decision to take the adverse action (in this case the decision to terminate the Applicant’s employment) and surrounding circumstances including those of the employee at the time the action was taken.12
[19] There is some import to this question of fact. Presently, as an ex-employee, the Applicant cannot pursue the substantive application for a stop-bullying order because there is no longer an ongoing risk of bullying in the workplace. 13 He is no longer in the workplace. However, if the Applicant establishes that he was unlawfully terminated and is reinstated in his employment, then the substantive application for a stop-bullying order could be re-enlivened.
History of the present matter
[20] The Form F9 Application was filed on 12 March 2020, and UNSW filed a response on 22 March 2020. The Commission, as presently constituted, issued directions for an anticipated arbitration hearing in respect to the jurisdictional objection taken by UNSW.
[21] The hearing was scheduled for 20 May 2020 unless the parties both consented to the matter being determined on the papers. Somewhat oddly, both parties gave conditional consent. Consequently, I listed the matter for a mention hearing on 13 May 2020. At the mention hearing the Applicant was represented by his wife, Mrs Andrea Krcho. UNSW was represented by its in-house HR Legal Counsel, Ms Helen Carter.
[22] The outcome of the mention hearing was that the parties agreed that the Commission, as presently constituted, could decide the question of jurisdiction having regard to the submissions previously filed on:
a) 3 April 2020 by UNSW;
b) 20 April 2020 by the Applicant; and
c) 1 May 2020 by UNSW.
[23] At the hearing on 13 May 2020 I undertook to revert to UNSW if, in considering all the voluminous material filed (particularly by the Applicant) in the matter, I thought it was necessary to have regard to any other documents.
[24] On 17 August 2020 I advised UNSW that I was inclined to have regard to additional submissions that had been made by the Applicant on 12 May 2020 (Applicant’s Additional Submissions). 14 I noted that,
“Although these additional submissions were received outside the programmed Directions dated 26 March 2020, in circumstances were the Applicant is represented by a legally untrained person, as a matter of procedural fairness, the Commissioner thinks he should have regard to those submissions.”
[25] I invited UNSW to advise whether:
a) it had any objection to me having regard to the Applicant’s Additional Submissions? If so, what was the basis for that objection?
b) it wanted an opportunity to reply to the Applicant’s Additional Submissions.
[26] On 19 August 2020 UNSW advised that it did not object to me having regard to the Applicant’s Additional Submissions. It then made a brief reply. I have had regard to those brief submissions also.
The s.723 Jurisdictional Objection
[27] UNSW contends that the operation of s.723 of the FW Act when properly construed, establishes that the Applicant cannot make and is statutorily barred from making, the s.773 application. UNSW has submitted that the Applicant has an entitlement to make a general protections court application because UNSW is a national system employment and the Applicant was a national system employee.
[28] The submitted position of UNSW can be summarised as follows:
a) UNSW is a national system employer within the meaning of s.14(1)(a) of the FW Act.
b) the Applicant was a national system employee within the meaning of s.13 of the FW Act.
c) the grounds relied upon by the Applicant fall within ss.341, 351 and 352 of the FW Act.
d) the Applicant could have commenced proceedings under s.365 of the FW Act (for conciliation by the Commission) and then under s.378 in a court.
e) the ground of ‘political opinion’ is not available to the Applicant under s.351 of the FW Act because of the operation of s.352.
f) there is no identification or reference to any matter resembling or identifying a political opinion.
g) predominantly the Form F9 Application is about the other grounds.
h) having pursued multiply alleged reasons for the dismissal, when the majority fall within Part 3-1 of the FW Act he was not able to bring an unlawful termination claim under Part 6-4.
i) alternatively,
“if that construction is not accepted, then the Applicant can only pursue the political opinion ground (and not any other grounds) in his unlawful termination application. As such, the present unlawful termination application – as it seeks to pursue grounds falling within Part 3-1 of the FW Act – is invalid.” 15
[29] The submissions made on behalf of the Applicant rejected the jurisdictional objection that had been advanced on behalf of UNSW. In summary, the Applicant submitted that:
a) the “main and underlying reason for [the dismissal is] the Applicant’s political opinion and his national extraction or social origin” (which essentially inform and dictate his political opinion).
b) the termination was not because the Applicant refused to attend Independent Medical Examinations (IMEs), “but his inquiries about the IMEs purposes and process i.e. its legality and reasonableness…”
c) the Applicant “dared to exercise his employment rights to speak or ask about the lawfulness and reasonability of the employer’s [IME] process, and inquire about, and insist on, its lawfulness under [privacy legislation].”
d) “This makes the Applicant’s termination essentially a political one due to the employer’s prohibition on the essential and democratic right to speak or voice legitimate concerns affecting basic employee rights and safety…”
e) the “employer’s processes have been infected with such an undemocratic attitude, and are hence (in all likelihood) not just unreasonable, but also unlawful, and hence in breach of our current and still applicable democratic regime…”
f) the termination of his employment “is essentially [an] expression of a totalitarian attitude … which essentially amounts to a training of current employees in the realms of Totalitarian Mode of Political Governance, which is inconsistent with our still valid Democratic Rules of our current and official Parliamentary Intent.”
g) the “description of transpired events … is well within the definition of a “Political Opinion” which typically encompasses “any opinion on any matter in which the machinery of state, government and policy may be engaged”.
h) since the Applicant has only made one application he has not contravened s.723 which prohibits multiple actions.
i) “Political Opinion” is not covered because of s.351(2)(a) of the FW Act.
j) McIntyre v Special Broadcasting Services Corporation T/A UNSW Corporation (McIntyre ) 16is authority for the Applicant being able to continue with his unlawful termination claim.
[30] In its reply submissions UNSW submitted that,
a) “The purpose and effect of s.723 is to mandate that, if the conduct complained of by a prospective applicant could be pursued under Part 3-1 of the FW Act by making a general protections application, the Applicant must take that course.”
b) “The Applicant now attempts, quite artificially, to argue that this workplace dispute about the lawfulness and reasonableness of an independent medical examination involved the Applicant being dismissed for expressing a political opinion.” It then pointed out problems with the argument that had a basis on “UNSW [being] an extension of the executive branch of [the NSW] State Government.”
c) political opinion is not defined in the FW Act. In any case the conduct complained about by the Applicant are not consistent with the examples given by Mortimer J of the expression of political opinion in Sayed v Construction, Forestry, Mining and Energy Union. 17
d) the matter between the Applicant and UNSW is nothing more than a private employment dispute.
e) the decision in McIntyre can be distinguished.
[31] The Applicant’s Additional Submissions can be summarised as follows:
a) there was no place for the characterisation of the dispute as private when it is between a public sector official and a public institution.
b) “Because the dispute clearly concerns an unlawful conduct (abuse of power) by the governing public sector officials (UNSW HR/ER) concerning its (mis)management of UNSW’s operations and of its subordinated “public sector officials” to such an extent, that it ignores legislation [such as privacy legislation and workplace health and safety legislation] and hence disregards employees’ basic human and employment rights, their health, then the dispute is no longer a private dispute, but indeed a matter of high public interest, concerning mistreatment of a ‘public sector official.”
c) this “makes the Applicant’s termination primarily [a] political one due to the employer’s prohibition on the essential and democratic right to receive necessary information, right to speak or voice legitimate concerns affecting basic employee rights and safety, ….”
d) in “Democratic Public Institutions the employer is not entitled to make any warning forbidding its employees to speak, inquire and complain, since the employees are to be free to criticise their employers when they perceive they are doing something so profoundly wrong, that it infringes [an] employee’s basic Human Rights – such as the right to speak and criticise the governance.”
[32] In consenting to me having regard to the Applicant’s Additional Submissions UNSW drew my attention to particular matters addressed in its Reply Submissions. I have had regard to those brief submissions.
[33] One observation to be made about the respective submissions is that both parties addressed whether the facts in this matter meant that the dismissal could be characterised as being because of the Applicant’s political opinion. That is to say, the submissions addressed the merits of that part of the Applicant’s unlawful termination claim. It might be observed that the Applicant’s construction of the meaning of ‘political opinion’ is novel. It might be considered, at best, a stretch, or, at worst, in the words of UNSW, “artificial”. However, that is not a matter to be considered in deciding whether the Commission has jurisdiction to deal with the matter. In fact I have formed no view about the merits of the political opinion claim. It is not even relevant whether the political opinion case is reasonably arguable. That is not the relevant test at this stage of the proceeding. Jurisdiction can be enlivened even by the most hopeless of cases.
Consideration
[34] UNSW is a national system employer. The Applicant was a national system employee. Consequently, the starting point for any action for unlawful termination arising out of prohibited grounds or discrimination is Part 3-1 of the FW Act (i.e. the general protections provisions). If an employee can make a Part 3-1 claim they must. There is a legislated preference in favour of such claims over Part 6-4 claims.
[35] The Applicant relies upon the decision in McIntyre. In that matter the Commissioner held that,
[33] The operation of s. 723 of the Act should be considered in the context of a provision contained in Part 6-1 - Multiple Actions, which is a part of the Act that provides for rules relating to applications for remedies under the Act and which prevents certain applications being made where other remedies are available and also prevents multiple applications or complaints being made in relation to the same conduct. In my view, the intention of s. 723 of the Act is to avoid a person making both an unlawful termination application and a general protections court application in respect to the same issue.
[34] The rationale which underpins s. 723 of the Act and Part 6-1 generally, is that a person should be unable to take more than one proceeding in respect to a complaint. There may be different remedies available under different sections of the Act which could legitimately be pursued in respect of a particular complaint, but the rationale of Part 6-1 of the Act requires a person to elect only one particular process for pursuit of a particular remedy.
[35] In the present circumstances, the Applicant mistakenly commenced proceedings under s. 365 of the Act and he has subsequently endeavoured to overcome that mistake with his application under s. 773 of the Act. Consequently, there is no attempt by the Applicant to seek multiple actions or remedies in respect to the same conduct, his s. 365 application has failed, and in my view, had his particular circumstances being properly examined at the time, it would have been established that he was not a person who was entitled to make a general protections court application in relation to conduct which, in New South Wales, was caught by the provisions of subsection 351 (2) (a) of the Act.
[36] A consideration of the operation of subsection 351 (2) (a) of the Act is assisted by the following extract from the explanatory memorandum to the Fair Work Bill 2008:
“1429. The exception in paragraph 351(2)(a) ensures that action authorised by or under a State or Territory anti-discrimination law (defined in subclause 351(3)) is not adverse action under the subclause 351 (1).”
[37] Consequently, I believe that the operation of subsection 351 (2) (a) of the Act, in the circumstances of the Applicant, had the effect of extinguishing the general protection established under subsection 351 (1) of the Act. Therefore, for the purposes of s. 723 of the Act, the Applicant was not a person who was entitled to make a general protections court application in relation to the particular conduct that was the subject of his s. 365 application. Therefore, the s. 773 unlawful termination application made by the Applicant is not jurisdictionally barred by the prohibition established under s. 723 of the Act.
[38] Further, I believe that the construction that I have adopted for the operation of s. 723 of the Act, in circumstances where subsection 351 (2) (a) of the Act operates to remove a general protection that would otherwise be established by subsection 351 (1) of the Act, is supported by the following extract from the explanatory memorandum to the Fair Work Bill 2008:
“Clause 723 - Unlawful termination applications:
2702. This clause prevents a person from making an unlawful termination application under Division 2 of Part 6-4 if they are able to make an application under the general protection provisions in Part 3-1 in relation to the same termination of employment. This is because the general protections and unlawful termination provisions cover the same grounds of when a termination is for a prohibited reason. The unlawful termination provisions are only intended to be an extension of these protections to persons who are not covered by the general protections in relation to the termination. …” [Emphasis added].
[36] I respectfully adopt the Commissioner’s reasoning.
[37] In the present matter the termination of the Applicant’s employment can be characterised in a number of different ways. The Applicant has done so in his Form F9 application. He characterises the termination as being for various reasons. Some of those reasons would have entitled the Applicant to commence a general protections claim under Part 3-1. Because he could have made those claims under Part 3-1 he cannot make them under Part 6-4.
[38] The Applicant’s rights in this regard can be summarised as follows:
The Applicant’s characterisation 18 of reason for termination, because of: | POSSIBLE CLAIM UNDER GENERAL PROTECTIONS (PART 3-1) | Possible claim under Additional Provisions Relating to Termination of Employment (Part 6-4) |
Temporary absence from work because of illness or injury (s.772(1)(a)). | Yes, see s.352. | No, because of the operation of s.723 the FW Act that prevents a person making an unlawful termination application if they can make a general protections court application. |
The filing of a complaint against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities (s.772(1)(e)). | Yes, see ss. 340, 341 (meaning of workplace right), 342 (meaning of adverse action includes dismissal). | No, because of the operation of s.723. |
The participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities (s.772(1)(e)). | Yes, see ss. 340, 341 (meaning of workplace right). | No, because of the operation of s.723. |
Discrimination – age (s.772(1)(f)). | Yes, see s.351(1). | No, because of the operation of s.723. |
Discrimination – physical or mental disability (s.772(1)(f)). | Yes, see s.351(1). | No, because of the operation of s.723. |
Discrimination – political opinion (s.772(1)(f)). | No, because s.351(2) renders s.351(1) inoperative if the action is “not unlawful under any anti-discrimination law…” In NSW discrimination on the basis of political opinion is not unlawful. Therefore, a s.365 application to deal with a dismissal because of a political opinion cannot be brought by a person in NSW. | Yes, because s.723 has no application to the Applicant in relation to termination by reason of a dismissal based on political opinion. |
Discrimination – national extraction or social origin (s.772(1)(f)) | Yes, see s.351(1) | No, because of the operation of s.723. |
[39] What this means is that, as it is presently drafted, the Form F9 Application is:
a) incompetent in large measure; but
b) competent in so far as it seeks to prosecute a claim that “political opinion” was the basis for UNSW terminating Dr Krcho’s employment.
[40] In indicating that an aspect of the unlawful termination claim made by Dr Krcho against UNSW is competent I am in no way expressing a view about the merits or strength of that cause of action. It is not my role in a jurisdictional hearing to decide that issue. I am merely dealing with whether the jurisdiction of the Commission is enlivened.
[41] In this instance the Respondent, UNSW, has made a challenge to an application for unlawful termination of employment which was taken under s. 773 of the FW Act. The challenge to the Form F9 Application made by UNSW relies upon the purported operation of s. 723 of the FW Act.
[42] I have concluded that in the particular circumstances of this case, s. 723 of the FW Act does not operate entirely as a jurisdictional bar to the Form F9 Application, as the Applicant is not a person who is entitled to make a general protections court application in relation to the conduct that he complains of, namely “political opinion”. However, the present application is much wider in its intent.
[43] My decision is consistent with the observations made by the Commissioner in mcintyre,
[45] My conclusions have been broadly drawn from a purposive interpretation of the Act cognisant that it is beneficial legislation. In simple terms, I believe that the Act, and s. 723 in particular, should not be interpreted in a manner which would deprive an individual of access to a fair hearing or, as may be euphemistically described, a person’s “day in court”. In the circumstances of this case the Applicant does not seek multiple proceedings or remedies but simply seeks to have his day in court.
[44] I am conscious that the Form F9 Application was prepared by a non-legally trained person and, it may be that, as presently drafted, the Form F9 Application might deprive the Applicant of his day in court.
[45] I further note that the Commission has the power to “allow a correction or amendment of any application, … relating to a matter before the [Commission], on any terms that it considers appropriate.” 19
[46] The Applicant has not made an application to correct or amend the Form F9 Application. If he did so, such that the answer to section 3.2 was confined to “political opinion”, it seems that no jurisdictional complaint could be made about it. Again, I am not expressing a view about the merits of the claim that the Applicant was dismissed because of his political opinion. But because all the other grounds are statute barred (because of the operation of s.723), “political opinion” is all that the Applicant is left with. He might well have been in a stronger position if he had commenced an application under s.365 of the FW Act in respect of all the other grounds except political opinion. But he made an election about which kind of application to make on 12 May 2020 and he is stuck with the decision he made. But, presently, there are difficulties with that application.
[47] It is not my job to tell the Applicant how to run his matter. It is entirely a matter for him. However, in fairness to the Applicant I think I should allow him an opportunity to seek a correction or amendment. If he does make such an application I will then hear from UNSW about the same.
[48] For these reasons the Applicant is directed to file in the Commission and serve on UNSW any application he wants to make to correct or amend the Form F9 Application made by him on 12 March 2019. Any application to correct or amend the Form F9 Application must be made on a Form F1 20 by 4.00 pm on Friday, 28 August 2020.
[49] That is not to say the Applicant must make an application to correct or amend the Form F9 Application. That is entirely a matter for him to decide.
[50] If:
a) such an application is made I will invite UNSW to respond to it. It may be that they form the view that there is no prejudice to them in not opposing the correction or amendment. In which case it will likely be granted and the matter can be listed for conciliation.
b) no such application is made I will issue a final decision in relation the present application made by UNSW to have the Applicant’s unlawful termination dispute application dismissed.
COMMISSIONER
Appearances:
Mrs Krcho for the applicant.
Ms Carter for the respondent.
Hearing details:
2020.
Sydney:
13 May.
Final submissions
Respondent, in answer to questions from the Commissioner, 19 August 2020
Printed by authority of the Commonwealth Government Printer
<PR722039>
1 Section 14 FW Act
2 AB2018/637
3 [2018] FWC 6691, [1]
4 [2018] FWC 6691
5 [2019] FWC 5278
6 [2019] FWCFB 8269
7 [2020] FWC 181
8 C2020/500
9 See letter to the Applicant from Professor Mark Hoffman Dean, UNSW Engineering, dated 19 March 2019
10 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 549 at paras 102, 104, per Gummow and Hayne JJ.
11 Or if the parties agree to consent arbitration, the Commission (s.369 FW Act)
12 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 549
13 On 27 April 2020 the appeal from [2020] FWC 181 was adjourned sine die.
14 In particular pages 7 – 14, paragraphs (7)-(20)
15 Respondent’s Jurisdictional Outline of Submissions, para 8(e)
16 [2015] FWC 6768
17 [20156] FCA 27
18 See para 3.2 in Form F9 application
19 Section 586 FW Act
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