Dr Mahima Krongold v Dr Hilton Leibowitz Mountain Gate Dental Clinic Pty Ltd

[2013] FWC 3738

[2013] FWC 3738

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Dr Mahima Krongold
v
Dr Hilton Leibowitz
Mountain Gate Dental Clinic Pty Ltd
(C2012/6676)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 12 JUNE 2013

Application to deal with contraventions involving dismissal.

[1] On 19 December 2012 Dr Mahima Krongold (the Applicant) lodged an application pursuant to section 365 of the Fair Work Act 2009 (the FW Act) alleging that her employment had been terminated in breach of sections 340, 341, 342, 361 and 372 of the FW Act. The Respondents to the application were Dr Hilton Leibowitz and Mountain Gate Dental Clinic Pty Ltd.

[2] On 22 August 2012 the Applicant had made a complaint to the Australian Human Rights Commission (the AHRC) against Dr Leibowitz alleging breaches of the Sex Discrimination Act 1984 (Cth). On 23 October 2012 Dr Leibowitz terminated the Applicant’s employment/engagement.

[3] On 9 January 2013 Dr Leibowitz’s solicitors wrote to the Fair Work Commission and advised of the AHRC complaint and further advised that on 30 November 2012 an email was received from the AHRC advising Dr Leibowitz that Dr Krongold had sought to amend her compliant to include the allegation of victimisation based on the dismissal. Because the complaint to the AHRC had not been terminated or withdrawn, it was submitted that section 725 of the FW Act applied.

[4] The dispute notified to the Fair Work Commission was conciliated and heads of agreement were signed by the parties. However a dispute between the parties arising from the terms of settlement negotiated at the conciliation remains unresolved.

[5] Directions were issued to have the jurisdictional objection raised by the Respondents heard and determined.

[6] The Respondent submitted that the questions that need to be determined are as follows:

“(a) Whether on 19 December 2012, the Applicant made an application to Fair Work Australia that:

i. Related to her alleged dismissal on 23 October 2012; and

ii. Conduct that did not relate to her alleged dismissal on 23 October 2012

(b) If the answer to (a)(i) and (a)(ii) is “yes”, then whether on 19 December 2012, the Applicant had a complaint before the AHRC that:

i. Alleged a breach of an anti-discrimination law (in relation to the application of section 734) or a law of the Commonwealth (in relation to the application of sections 725 and 732); and

ii. Related to her alleged dismissal on 23 October 2012 (in relation to the application of section 732); or

iii. Related to conduct that did not relate to her alleged dismissal on 23 October 2012 (in relation to the application of section 734)

(c) If the answer to (b)(i), (b)(ii) and (b)(iii) is “yes”, then whether on 19 December 2012, the complaint before the Australian Human Rights Commission:

i. Had been withdrawn; or

ii. Failed for want of jurisdiction.

(d) If the answer to (c)(i) and (c)(ii) is “no”, then the Respondents submit that the Application is incompetent and must fail.”

The AHRC Complaint

[7] On 22 August 2012 the Applicant lodged a complaint against Dr Leibowitz. On 30 November 2012 an email was forwarded by AHRC to the Respondent advising that the Applicant “had indicated that she would like to amend the complaint to include a further allegation regarding the end of her working relationship with Dr Leibowitz and the Dental Clinic.”

[8] Section 46PA of the Human Rights Commission Act 1986 provides for the amendment of complaints as follows:

“(1) Any complainant may at any time amend the complaint, with the leave of the President.

(2) Subsection (1) does not, by implication, limit any other power to amend the complaint.”

Consideration

[9] The general protections dismissal application which is before the Commission names two respondents, Dr Leibowitz and Mountain Gate Dental Clinic. There is no complaint to the AHRC against Mountain Gate Dental Clinic and as such there is no jurisdictional impediment to a certificate being issued naming Mountain Gate Dental Clinic..

[10] Section 725 of the FW Act provides as follows:

“A person who has been dismissed must not make an application or complaint of a kind referred to in any one of section 726 to 732 if any other of those sections applies.”

[11] Section 725 is intended to prevent applicants from lodging multiple applications in relation to the dismissal.

[12] Section 727 of the FW Act provides as follows:

“727 General protections FWC applications

(1) This section applies if:

(a) a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction; or

(iii) resulted in the issue of a certificate under section 369 (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute have been, or are likely to be, unsuccessful).

(2) A general protections FWC application is an application under section 365 for the FWC to deal with a dispute that relates to dismissal.”

[13] It is not in dispute that the Applicant has made a general protections Fair Work Commission application.

[14] The Respondent relies on section 734 of the FW Act. Section 734 provides as follows:

“734 General rule

(1) A person must not make a general protections court application in relation to conduct that does not involve the dismissal of the person if:

(a) an application or complaint under an anti-discrimination law has been made by, or on behalf of, the person in relation to the conduct; and

(b) the application or complaint has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction.

(2) A person must not make an application or complaint under an anti-discrimination law in relation to conduct that does not involve the dismissal of the person if:

(a) a general protections court application has been made by, or on behalf of, the person in relation to the conduct; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction.”

[15] The application before the Commission is not a general protections court application and the application of this provision of the FW Act should be addressed to the court if the Applicant makes a general protections court application.

[16] The Respondent further relies on section 732 of the FW Act which provides as follows:

“732 Applications and complaints under other laws

(1) This section applies if:

(a) an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application or complaint has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction.

(2) An application or complaint under another law is an application or complaint made under:

(a) a law of the Commonwealth (other than this Act); or

(b) a law of a State or Territory.

(3) For the purposes of this Subdivision, if a complaint under the Australian Human Rights Commission Act 1986 relates to a dismissal only as a result of an amendment of the complaint, the complaint is taken to be made when the complaint is amended.”

[17] The complaint to the AHRC is a complaint under a law of the Commonwealth. However, when made, it was not a complaint in relation to the dismissal.

[18] There is no evidence before the Commission that there has in fact been an amendment of the complaint. There is no evidence that the President of the AHRC has given the Applicant leave to amend her complaint.

[19] I am therefore unable to conclude that the Applicant had made a complaint in relation to the dismissal under a law of the Commonwealth prior to her lodging her general protections application. As such, the Respondent’s jurisdictional objection is dismissed.

[20] Because of the conclusions I have reached it is not necessary for me to determine if it is appropriate for the Fair Work Commission to determine jurisdictional objections to general protections claims.

[21] As the dispute was not able to be resolved, a certificate will issue with this decision.

DEPUTY PRESIDENT

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