Gao v Tin (Staffing Services) Pty Ltd - [2020] FCA 453

FEDERAL COURT OF AUSTRALIA
Gao v Tin (Staffing Services) Pty Ltd [2020] FCA 453

File number: VID 1369 of 2019

Judge: STEWARD J

Date of judgment: 9 April 2020

Catchwords: INDUSTRIAL LAW – general protections court application – s. 370 of the Fair Work Act 2009 (Cth.) – where applicant made a general protections application involving dismissal to the Fair Work Commission – where applicant filed the application outside the statutorily prescribed period – where Commission refused to provide the applicant an extension of time – where Commission did not issue a certificate pursuant to s. 368(3)(a) – where applicant purported to file a general protections court application in the absence of the certificate – whether the Court has jurisdiction to hear and determine the applicant’s application

Legislation:
Fair Work Act 2009 (Cth.) Pt 3-1, ss. 340, 341, 365, 366, 368, 370, 394, 570

Federal Court Rules 2011 (Cth.) rr. 16.21, 34.03, Sch. 1

Cases cited:
Chen v. Birbilis [2016] FCA 661

Knight v. Visionstream Australia Pty Ltd [2017] FCA 1513

Milardovic v. Vemco Services Pty Ltd (No 2) (2016) 242 F.C.R. 492

Ward v. St Catherine’s School [2016] FCA 790

Date of hearing: Determined on the papers

Date of last submissions: 26 March 2020

Registry: Victoria

Division: Fair Work Division

National Practice Area: Employment & Industrial Relations

Category: Catchwords

Number of paragraphs: 25

Counsel for the Applicant: The applicant filed written submissions on his own behalf

Counsel for the Respondent: Mr S. Kaintatsis

Solicitor for the Respondent: GI Law Pty Ltd

ORDERS

VID 1369 of 2019

BETWEEN:
ZHAN GAO

Applicant

AND:
TIN (STAFFING SERVICES) PTY LTD

Respondent

JUDGE:

STEWARD J

DATE OF ORDER:

9 APRIL 2020

THE COURT ORDERS THAT:
1.The name of the respondent be amended to “Tin (Staffing Services) Pty Ltd”.
2.The originating application filed on 17 December 2019 be dismissed.
3.The respondent’s interlocutory application filed on 26 March 2020 be dismissed.
4.There be no order as to costs.

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

REASONS FOR JUDGMENT
STEWARD J:

This is an interlocutory application for the strike out of the entirety of the applicant’s “pleading” pursuant to r. 16.21 of the Federal Court Rules 2011 (Cth.) (the “Rules”). The respondent contends that the applicant’s “pleading” is ambiguous; is likely to cause prejudice, embarrassment or delay in the proceeding; fails to disclose a reasonable cause of action; and is otherwise an abuse of the process of the Court. Briefly stated, the essential allegation that the unrepresented applicant makes in this proceeding is that the respondent, his former employer, dismissed him in contravention of a general protection afforded by the Fair Work Act 2009 (Cth.) (the “FW Act”). .
For the reasons that follow, the respondent’s interlocutory application is misconceived and is therefore dismissed. Nevertheless, the applicant’s proceeding is dismissed for want of jurisdiction.
Applicable Legislative Provisions
It is convenient to commence with the key provisions in the FW Act that are…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCA 453
Decision Date: 9 April 2020

CaseChat Overview and Summary

In the matter of Gao v Tin (Staffing Services) Pty Ltd, the applicant, Gao, sought to challenge a dismissal under the Fair Work Act 2009 (Cth.). The Fair Work Commission (FWC) had previously refused to extend the time for filing a general protections application, and had not issued a certificate under section 368(3)(a) of the Act. Gao filed a general protections court application despite the absence of the required certificate, and Tin (Staffing Services) Pty Ltd, the respondent, sought to have the application dismissed for lack of jurisdiction. The central legal issues were whether the Federal Court had jurisdiction to hear the applicant’s application, and if the Court had discretion to award costs to the respondent.

The Court found that section 370 of the Fair Work Act sets out the conditions for the Court’s jurisdiction over general protections applications, and one of those conditions is that the FWC must issue a certificate that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful. As the FWC had not issued such a certificate, the Court held it had no jurisdiction to hear the application. However, the Court also considered its discretion under section 570(2) of the Fair Work Act to award costs, noting that the Court can exercise this discretion even if the applicant instituted the proceeding without reasonable cause. Given the outcome of the respondent’s interlocutory application and the applicant’s position, the Court decided not to exercise its discretion to award costs to the respondent.

The Court dismissed the applicant’s application for lack of jurisdiction and the respondent’s interlocutory application, and made no order as to costs. The Court’s decision underscores the importance of following the statutory requirements for filing a general protections application, and highlights the Court’s residual discretion to award costs in appropriate circumstances.

Orders

Orders of the court

1. The name of the respondent be amended to “Tin (Staffing Services) Pty Ltd”.

2. The originating application filed on 17 December 2019 be dismissed.

3. The respondent’s interlocutory application filed on 26 March 2020 be dismissed.

4. There be no order as to costs.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

To the extent the respondent seeks costs, I note that s. 570(2) of the FW Act confers a residual discretion on the Court, even if it is satisfied, for example, that the applicant instituted the proceeding without reasonable cause: Milardovic v. Vemco Services Pty Ltd (No 2) (2016) 242 F.C.R. 492 at 502 [47] per Mortimer J. In the circumstances of this case, including the outcome of the respondent’s interlocutory application and the position of the applicant, I consider it appropriate to exercise that residual discretion in favour of the applicant. There will be no order as to costs. Conclusion For the foregoing reasons, I dismiss: (a)the applicant’s application filed on 17 December 2019 on the basis that the Court has no jurisdiction to hear and determine it; and(b)the respondent’s interlocutory application filed on 26 March 2020,with no order as to costs

Ratio Decidendi

Legal Principle Established

Section 368 sets out how the Commission is to deal with a dismissal dispute. It provides:Dealing with a dismissal dispute (other than by arbitration)(1)If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).Note:The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3‑2 (which deals with unfair dismissal) in relation to the dispute.(2)Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).Note: For conferences, see section 592.(3)If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:(a) the FWC must issue a certificate to that effect; and(b)if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.(4)A general protections court application is an application to a court under Division 2 of Part 4‑1 for orders in relation to a contravention of this Part. Section 370 sets out the conditions which enliven the Court’s jurisdiction to consider a dismissal dispute of the kind contemplated in s. 365. It provides:Taking a dismissal dispute to court A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:(a) both of the following apply:(i)the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;(ii)the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or(b)the general protections court application includes an application for an interim injunction.Note 1:Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 369(1)), a general protections court application cannot be made in relation to the dispute (see sections 727 and 728).Note 2:For the purposes of subparagraph (a)(ii), in Brodie‑Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.(Emphasis added.) Rule 34.03 of the Rules sets out the method by which a person can make an application to this Court in relation to dismissal from employment in contravention of a general protection. It provides:Application in relation to dismissal from employment in contravention of a general protection(1)A person who wants to make an application for an order in relation to an allegation that an employee was dismissed in contravention of a general protection mentioned in Part 3-1 of the Fair Work Act must file an originating application, in accordance with Form 79.(2)The application must include any other claim for relief that the applicant wants to make in addition to the claim mentioned in subrule (1).Note:Rule 34.05 provides for an application for an order in relation to a contravention of section 351(1) of the Fair Work Act.(3)The application must be accompanied by a certificate issued by the Fair Work Commission under the Fair Work Act that the Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.Note:Sections 545 and 546 of the Fair Work Act set out the orders the Court may make.(4) Subrule (3) does not apply to an application brought by a Fair Work Inspector.(Emphasis added.)Part 3-2 – Unfair Dismissal

File number:	VID 1369 of 2019
Judge:	STEWARD J
Date of judgment:	9 April 2020
Catchwords:	INDUSTRIAL LAW – general protections court application – s. 370 of the Fair Work Act 2009 (Cth.) – where applicant made a general protections application involving dismissal to the Fair Work Commission – where applicant filed the application outside the statutorily prescribed period – where Commission refused to provide the applicant an extension of time – where Commission did not issue a certificate pursuant to s. 368(3)(a) – where applicant purported to file a general protections court application in the absence of the certificate – whether the Court has jurisdiction to hear and determine the applicant’s application
Legislation:	Fair Work Act 2009 (Cth.) Pt 3-1, ss. 340, 341, 365, 366, 368, 370, 394, 570 Federal Court Rules 2011 (Cth.) rr. 16.21, 34.03, Sch. 1
Cases cited:	Chen v. Birbilis [2016] FCA 661 Knight v. Visionstream Australia Pty Ltd [2017] FCA 1513 Milardovic v. Vemco Services Pty Ltd (No 2) (2016) 242 F.C.R. 492 Ward v. St Catherine’s School [2016] FCA 790
Date of hearing:	Determined on the papers
Date of last submissions:	26 March 2020
Registry:	Victoria
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	25
Counsel for the Applicant:	The applicant filed written submissions on his own behalf
Counsel for the Respondent:	Mr S. Kaintatsis
Solicitor for the Respondent:	GI Law Pty Ltd