Forbes v Petbarn Pty Ltd

Case [2018] FCA 256

FEDERAL COURT OF AUSTRALIA

Forbes v Petbarn Pty Ltd [2018] FCA 256

Appeal from: Application for extension of time and leave to appeal:  Forbes v Petbarn Pty Ltd & Ors [2016] FCCA 3356
File number: SAD 22 of 2017
Judge: CHARLESWORTH J
Date of judgment: 9 March 2018
Catchwords:

APPEAL AND NEW TRIAL – proceedings in Federal Circuit Court of Australia dismissed as having no prospects of success – lack of prospects explained by want of jurisdiction – whether order dismissing proceedings for want of jurisdiction interlocutory – whether leave to appeal required

INDUSTRIAL LAW — Certificate purportedly issued by Fair Work Commission pursuant to s 776 of the Fair Work Act 2009 (Cth) – Commission having no jurisdiction to deal with unlawful termination dispute – Certificate having no legal effect — whether purported issue of Certificate had effect of enlivening jurisdiction of Federal Circuit Court of Australia in an action alleging unlawful termination

INDUSTRIAL LAW – allegations against non-employer parties asserting involvement of others in unlawful termination – facts asserting accessorial liability under s 550 of the Fair Work Act 2009 (Cth) – availability of cause of action – preconditions to jurisdiction of Federal Circuit Court of Australia to hear such a claim
Legislation:

Fair Work Act 2009 (Cth) ss 12, 14, 338, 339, 351,365, 368, 370, 383, 539, 550, 723, 772, 773, 776, 778

Federal Circuit Court of Australia Act 1999 (Cth) s 17A

Federal Court of Australia Act 1976 (Cth) ss 24(1A), 24(1D), 24(1E), 25(1AA)

Federal Circuit Court Rules 2001 (Cth) r 13.10

Return to Work Act 2014 (SA)
Cases cited:

Australian Building and Construction Commissioner v McDermott (No 2) [2017] FCA 797

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Forbes v Petbarn Pty Ltd & Ors [2016] FCCA 3356

Forbes v Petbarn Pty Ltd [2016] FWC 2688

Griffiths v Boral Resources (Qld) Pty Ltd (2006) 154 FCR 554

Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564

Luck v Chief Executive Officer of Centrelink (2017) 251 FCR 295

SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410

SZLSI v Minister for Immigration & Citizenship [2008] FCA 1052

Date of hearing: Determined on the papers
Date of last submissions: 22 August 2017 (Applicant)
9 August 2017 (First Respondent)
9 August 2017 (Second and Third Respondents)
9 August 2017 (Fourth Respondent)
Registry: South Australia
Division: General Division
National Practice Area: Employment & Industrial Relations
Category: Catchwords
Number of paragraphs: 87
Counsel for the Applicant: The Applicant appeared in person
Counsel for the First Respondent: Thomson Geer Lawyers
Counsel for the Second and Third Respondents: Minter Ellison
Counsel for the Fourth Respondent: Gilchrist Connell

ORDERS

SAD 22 of 2017
BETWEEN:

MARIE FORBES

Applicant
AND:

PETBARN PTY LTD

First Respondent

EMPLOYERS MUTUAL LTD

Second Respondent

RETURN TO WORK SA (and another named in the Schedule)

Third Respondent

JUDGE:

CHARLESWORTH J

DATE OF ORDER:

9 MARCH 2018

THE COURT ORDERS THAT:

1.The application for an extension of time in which…

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AGLC
Forbes v Petbarn Pty Ltd [2018] FCA 256
Case
[2018] FCA 256
Decision Date

CaseChat Overview and Summary

The dispute in Forbes v Petbarn Pty Ltd arose between Ms Forbes and Petbarn Pty Ltd, a company that employed Ms Forbes. The crux of the issue was whether Ms Forbes' dismissal from employment was unlawful and whether the Federal Circuit Court of Australia had jurisdiction to hear her claim. The case involved several other parties, including Return to Work SA, Employers Mutual Limited, and Mediation ERS Pty Ltd, which played various roles in the events leading to Ms Forbes' dismissal and the subsequent proceedings.

The primary legal issues the court had to address were whether the Federal Circuit Court of Australia had jurisdiction to hear Ms Forbes' claim of unlawful termination and if the Fair Work Commission's (FWC) purported issuance of a certificate under section 776 of the Fair Work Act 2009 (Cth) could confer jurisdiction on the Federal Circuit Court. Additionally, the court needed to determine if the FWC had jurisdiction to hear Ms Forbes' initial application regarding her dismissal, and whether Ms Forbes' allegations of accessorial liability against non-employer parties could support a cause of action within the court's jurisdiction.

The Federal Circuit Court of Australia found that the FWC lacked jurisdiction to deal with Ms Forbes' initial application for an unlawful termination dispute, as she was entitled to make a general protections court application instead. Consequently, the certificate issued by the FWC had no legal effect and did not confer jurisdiction on the Federal Circuit Court. The court further determined that Ms Forbes' claims against non-employer parties did not satisfy the jurisdictional requirements for a cause of action under section 550 of the Fair Work Act 2009 (Cth). As a result, the court dismissed Ms Forbes' applications for leave to appeal and the appeal itself.

The final orders of the court included allowing an extension of time for seeking leave to appeal from the primary judge's orders, dismissing the application for leave to appeal from those orders, granting leave to appeal from the order summarily dismissing Ms Forbes' action, and dismissing the appeal. The orders also addressed the procedural aspects, including the timeliness of the applications and the need for leave to appeal certain orders.

Orders

Orders of the court

1. The application for an extension of time in which to seek leave to appeal from the orders of the primary judge made on 1 August 2016 is allowed.

2. The application for leave to appeal from the orders of the primary judge made on 1 August 2016 and 22 December 2016 dismissing the applicant’s applications in a case dated 13 July 2016 and 8 August 2016 respectively is dismissed.

3. To the extent that the applicant requires leave to appeal from the order of the primary judge made on 22 December 2016 summarily dismissing action ADG149/2016, leave is granted.

4. The appeal is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

It follows that even if Ms Forbes could demonstrate appealable error in connection with her applications seeking, among other things, default judgment against the respondents, relief would not be granted on any appeal. Accordingly, her application for leave to appeal against the orders dismissing her interlocutory applications should also be dismissed.BACKGROUND The dispute between Ms Forbes and the respondents has a chaotic procedural history. The chaos is not solely the responsibility of Ms Forbes. Prior to her dismissal, Ms Forbes claimed to have sustained a workplace injury. She received workers compensation payments under the Return to Work Act 2014 (SA). That Act is administered by the third respondent Return to Work SA (an agency of the Crown in right of South Australia) and provides for a scheme of workers compensation insurance administered at all relevant times by Employers Mutual Limited (EML), the second respondent. Ms Forbes alleges that the compensation payments ceased upon, and by reason of, her summary dismissal. It is Petbarn’s case that Ms Forbes was dismissed from her employment because of her serious misconduct during a mediation session concerning (at least) her entitlement to workers compensation payments. The mediation was arranged by EML and conducted by the fourth respondent, Mediation ERS Pty Ltd. Soon after her dismissal, Ms Forbes filed an application in the Fair Work Commission (FWC) pursuant to s 773 of the FW Act for the FWC to deal with an unlawful termination dispute. Petbarn was the only other party named on that application. I will refer to it as the First FWC Application. In substance, Ms Forbes complained that her dismissal was for reasons that included:(1)her temporary absence from work because of illness or injury;(2)her having acted in the capacity of a representative of employees;(3)her having filed a complaint against Petbarn involving violation of laws; and(4)her age. In both form and substance, the First FWC Application alleged that Petbarn had acted in contravention of subss (a), (d), (e) and (f) of s 772(1) of the FW Act. Accordingly, it was to be regarded as an unlawful termination application within the meaning of s 723 of the FW Act. It provides:Unlawful termination applicationsA 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. A “general protections court application” is defined to mean an application to a court under Div 2 of Pt 4-1 for orders in relation to a contravention of Pt 3-1 of the FW Act: see s 12(1) and s 368(4). Petbarn took a jurisdictional objection to the First FWC Application. It submitted that Ms Forbes was entitled to make a general protections court application and that she was, accordingly, not entitled to make an application to the FWC under s 773 of the FW Act to deal with the dispute. The FWC upheld Petbarn’s objection. In doing so, it rejected Ms Forbes’ contention that she was unable to make a general protections claim because she had not completed the minimum period of employment specified in s 383 of the FW Act. The FWC determined, correctly, that Ms Forbes’ submissions were misconceived because the minimum employment provision applied only to applications for relief in respect of unfair dismissal commenced under Pt 3-2 of the FW Act and not to general protection claims alleging a contravention of s 772.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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