Gihan Kathriarachchi v
[2023] FWC 3459
•22 DECEMBER 2023
| [2023] FWC 3459 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Gihan Kathriarachchi
v
Commonwealth of Australia as represented by Services Australia (C2023/4081)
| COMMISSIONER MCKINNON | SYDNEY, 22 DECEMBER 2023 |
Alleged dispute about matters arising under the enterprise agreement and the NES – whether jurisdiction to deal with dispute – termination of employment – whether the application has no reasonable prospects of success
Mr Gihan Kathriarachchi was employed by the Commonwealth of Australia as represented by Services Australia (Services Australia) in February 2021. On 13 July 2023, he applied for the Commission to deal with a dispute under s.739 of the Fair Work Act 2009 (Act) about working from home and flexible work arrangements under the Department of Human Services Enterprise Agreement 2017-2020 (the Agreement). On 9 November 2023, Mr Kathriarachchi’s employment was terminated after he was unable to obtain security clearance for work in the Australian Public Service.
Services Australia has applied to the Commission for the application to be dismissed (the dismissal application). Firstly, Services Australia submits that the Commission’s jurisdiction to deal with the dispute under the Agreement was not enlivened under the dispute settlement term in the Agreement. Secondly, Services Australia submits that the application has no reasonable prospects of success because the employment relationship has come to an end.
There is no dispute that Mr Kathriarachchi’s employment was terminated on 9 November 2023. Mr Kathriarachchi maintains his application for the Commission to deal with the dispute because he wants the opportunity to be heard on matters he says have denied him work in the public service for life, damaged his good reputation, impacted his image and mind and his ability to progress his career as a manager. Services Australia submits that the Commission cannot deal with the dispute, both because the dispute settlement process was never completed and because some of the matters in dispute are not “matters arising under” the Agreement. Secondly, Services Australia submits that because the employment relationship has terminated, Mr Kathriarachchi can no longer achieve that which he seeks in his application.
I have decided to deal with the dismissal application on the papers. I find that:
The Commission has jurisdiction to deal with the dispute to the extent that it is about Mr Kathriarachchi’s working arrangements,
The Commission does not have jurisdiction to deal with the dispute to the extent that it is otherwise about bullying, discrimination, victimisation and related individual rights‑based claims, and
The application has no reasonable prospects of success.
My reasons for decision are set out below.
Power to deal with the dispute
Section 739 of the Act applies if, relevantly, an enterprise agreement includes a term that provides for a procedure for dealing with disputes, including a term referred to in sub section 186(6) of the Act. Under subsection 186(6), the Commission must be satisfied, before approving an enterprise agreement, that the agreement provides a procedure requiring or allowing the Commission or another independent person to settle disputes about any matters arising under the agreement and in relation to the National Employment Standards, as well as allowing for representation of employees covered by the agreement. There is no dispute that clause A10 of the Agreement is a dispute settlement procedure of the type contemplated by section 739 of the Act.
The Agreement is a comprehensive enterprise agreement that covers the Secretary of the Department of Human Services (for and on behalf of the Commonwealth of Australia as employer), all of its employees except Senior Executive Service employees and employees classified as Medical Officers 2 to 5, and the CPSU, the Community and Public Sector Union.[1]
Clause A10 of the Agreement provides as follows:
“A10.1 If a dispute relates to:
(a) a matter arising under the Agreement; or
(b) the National Employment Standards;
this clause sets out procedures to settle the dispute.
A10.2An employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this clause.
A10.3In the first instance, the parties to the dispute must genuinely and in good faith attempt to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors and/or management.
A10.4If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to the Fair Work Commission.
A10.5 The Fair Work Commission may deal with the dispute in 2 stages:
(a) the Fair Work Commission will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
(b) if the Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then:
(i)arbitrate the dispute; and
(ii)make a determination that is binding on the parties.
Note: If the Fair Work Commission arbitrates the dispute, it may also use the powers that are available to it under the Fair Work Act 2009. A decision that the Fair Work Commission makes when arbitrating a dispute is a decision for the purpose of Division 3 of Part 5. 1 of the Fair Work Act 2009. Therefore, an appeal may be made against the decision.
A10.6While the parties are trying to resolve the dispute using the procedures in this clause:
(a) an employee must continue to perform his or her work as he or she would normally unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and
(b) an employee must comply with a direction given by the employer to perform other available work at the same workplace, or at another workplace, unless:
(i) the work is not safe; or
(ii)applicable occupational health and safety legislation would not permit the work to be performed; or
(iii)the work is not appropriate for the employee to perform; or
(iv) there are other reasonable grounds for the employee to refuse to comply with the direction.
A10.7The parties to the dispute agree to be bound by a decision made by the Fair Work Commission in accordance with this clause.
Support for dispute resolution
A10.8Under this clause A10, the parties to the dispute will endeavour to resolve the dispute in a timely manner.
A10.9Any disputes arising under the Department of Human Services Agreement 2011-2014 or the National Employment Standards that were formally notified under clause A8 of that Agreement before the commencement of this Agreement and remain unresolved at the date of commencement of this Agreement will be progressed under the dispute resolution procedures in this Agreement.”
Is the dispute about matters arising under the Agreement?
The dispute is described by Mr Kathriarachchi’s application at question 2 of the Form F10 lodged in the Commission. The substantive issues in dispute are:
An ongoing dispute about working from home and flexibility arrangements,
An unresolved allegation of bullying and discrimination under his former team leaders in connection with the dispute in 1. above, including attempted retaliation through use of management tools, and
An argument about working outside the ‘bandwidth hours’ of 7.00am and 7.00pm.
The first and third issues are about Mr Kathriarachchi’s request to work from home and his hours of work. These issues relate to matters arising under Part F of the Agreement, which deals with “Flexible Working Conditions” including eligibility, negotiation of working hours and home‑based work. The second issue, which raises allegations of bullying and discrimination, might fall for consideration as part of resolving the dispute about the first and third issues, including under Part I of the Agreement, which deals with performance management. But on its own, it is not about matters arising under the Agreement, which does not deal with the subject matters of bullying and discrimination. Disputes about matters of those kinds can separately be brought under either Part 3-1 or Part 6-4B of the Act.
I am satisfied that the Commission has jurisdiction to deal with the dispute so far as it relates to matters arising under Part F and Part I of the Agreement.
Has the dispute settlement process been followed?
Clause A10.3 of the Agreement requires the parties to the dispute to try to resolve the dispute in the first instance at the workplace level, by discussions between the employee or employees and relevant supervisors and/or management. If discussions at the workplace level do not resolve the dispute, the matter may be referred to the Commission (clause A10.4).
Services Australia submits that the parties had not completed their discussions at the workplace level in relation to the matters in dispute and the application to the Commission was made prematurely. On this basis, Services Australia submits that the application is not properly before the Commission.
Mr Kathriarachchi’s response indicates that there have been ongoing attempts to resolve his concerns since 2022, including the (limited) involvement of the Merit Protection Commissioner, and discussions between Mr Kathriarachchi and his direct managers, management staff, human resources and legal officers.
I accept the submission of Services Australia that at the time the application was made, Services Australia was seeking further medical evidence from Mr Kathriarachchi in the form of a fitness for duty assessment, for the purpose of seeking to negotiate a home-based work agreement with Mr Kathriarachchi in resolution of the dispute. At the time, Mr Kathriarachchi was resisting these efforts, and a dispute over whether he should be required to attend a fitness for duty assessment was part of what remained ‘unresolved’ between the parties despite having participated in discussions at the workplace level.
The point at which a matter may be referred to the Commission will be different in each case. In this case, I do not accept that the workplace level discussions could only be considered ‘complete’ once Mr Kathriarachchi had attended a fitness for duty assessment as directed, and Services Australia had determined its response. Other than by an end to the employment relationship, it is hard to see how those discussions could have been considered ‘complete’ in circumstances where Mr Kathriarachchi was resisting the request to attend a fitness for duty assessment and Services Australia was insisting upon it. There is no suggestion that the parties did not, prior to coming to the Commission, engage with each other genuinely and in good faith in an effort to resolve the matters in dispute.
I find that the dispute resolution procedure has been followed by the parties in relation to the subject matter of Mr Kathriarachchi's Form 10 application. In this respect, the application under clause A10.4 of the Agreement was properly made.
Does the application have reasonable prospects of success?
Services Australia submits that the application has no reasonable prospects of success, because the outcome that Mr Kathriarachchi seeks is no longer possible in the context of his employment having been terminated. Mr Kathriarachchi accepts that his employment has terminated. However, he presses for the matter to continue to address all of his concerns, to provide him with compensation in the nature of future economic and non-economic loss, and to take action against alleged misconduct and corruption by Services Australia.
This is a dispute under section 739 of the Act. Section 739 applies, relevantly, if a term of the Agreement provides a procedure for dealing with disputes. I noted above that clause A10 of the Agreement meets this description because it is a term of the kind referred to in subsection 186(6) of the Act, which conditions the approval of enterprise agreements.
Section 172 of the Act provides for the making of enterprise agreements, but only about certain matters: matters pertaining to the employment relationship (that is, the relationship between an employer and the employees who will be covered by the agreement); matters pertaining to the relationship between the employer and relevant unions that will be covered by the agreement; authorised deductions from wages; and how the agreement will operate.
The Agreement is primarily about matters pertaining to the relationship between Services Australia and its employees who are covered by the Agreement, although it also deals with matters falling within each of the other categories. Part A of the Agreement deals with scope, including who is covered by the Agreement, its duration and comprehensive nature, decision-making authority, individual flexibility arrangements, consultation and dispute resolution. Part B deals with Remuneration, including salary, superannuation, and temporary higher duties. Part C deals with classification, job streams and progression. Part D deals with allowances and reimbursements. Part E deals with travel and relocation, and Part F deals with flexible working conditions including job sharing, hours of work and home‑based work. Part G deals with different forms of leave and leave entitlements. Part H deals with general employment conditions, including in relation to casual employees, the employee assistance program, care advice service, influenza vaccinations, health insurance discounts, employee identification, public transport, uniforms, lactation breaks, studies assistance, resignation and notice of termination. Part I deals with performance management and Part J deals with retention, redeployment and redundancy. There are then 4 Schedules to the Agreement dealing with definitions, base salaries, transitional arrangements and remote localities.
Although the dispute resolution procedure in clause A10 of the Agreement confers a power of private arbitration on the Commission, it is limited in scope to the resolution of disputes about matters arising under the Agreement and the National Employment Standards, as well as to the subject matter of a dispute referred to the Commission after earlier stages of the procedure have been followed. Matters arising under the Agreement are those relating to the subject matter of the Agreement, summarised in the paragraph above. The Agreement does not deal at large with all matters pertaining to the employment relationship between Services Australia and individual employees.
When Mr Kathriarachchi made his original complaint about these matters to Services Australia on 13 July 2023, the core issue in dispute was its restrictions on his workplace flexibility measures. Mr Kathriarachchi’s application to the Commission again sought to resolve the dispute about his request to continue working from home, preferably on a full time basis, and related matters such as his ability to work overtime and accrue flex-time. His requests in this regard were made to support Mr Kathriarachchi’s effective participation in the workplace in connection with chronic schizophrenia. Mr Kathriarachchi also alleged bullying, discrimination and retaliation in connection with the requests, including through the use of management tools by his former team leaders to refuse his request to work from home.
The outcome sought from this application, as described by Mr Kathriarachchi in the Form F10 application filed on 13 July 2023 is this:
“I am still waiting on the Agency to allow me to return to work and I would like the Fairwork commission to help the Agency understand that there is not adequate reasoning for the Agency to stop me from working from home (not adequate reasons to disagree).”
Plainly, these outcomes depend on the continuing existence of an employment relationship between the parties. And the difficulty now is that due to a change, in circumstances, no such employment relationship exists. On 9 November 2023, Mr Kathriarachchi’s employment was terminated because of his failure to obtain a (baseline or above) security clearance for work in the APS. Refusal of a security clearance meant he lacked an essential qualification for the performance of his duties, which is a reason for termination of ongoing APS employees under section 29(3)(b) of the Public Service Act 1999. As the employment relationship has come to an end, I agree with Services Australia that the outcomes sought by Mr Kathriarachchi in his Form F10 are no longer possible.
On 27 October 2023, Mr Kathriarachchi sought to expand the scope of his dispute to cover a claim for economic and non-economic loss for the “irresponsible and immoral acts by Services Australia”, specifically:
Loss of wages for an unreasonably declined broadbanding promotion opportunity,
Medical costs and rehabilitation expenses (past and future),
Loss of physical and mental capacity,
Humiliation, bullying, harassment and trauma due to broken promises, and
Potential reduced life expectancy.
On 17 November 2023, Mr Kathriarachchi sought to continue with his application for the purpose of addressing issues contributing to his “current and continuing debilitating state of illness at length”. On 24 November 2023, Mr Kathriarachchi expanded on this submission by seeking that the application continue for the purpose of addressing all of his concerns about his experience with Services Australia through lump sum compensation and appropriate action to address misconduct and/or corruption, on the basis of alleged criminal conduct by Services Australia.
In my view, these matters go beyond the scope of the Commission’s jurisdiction conferred by section 739 of the Act to deal with a dispute. Except for the alleged broadbanding dispute, they cannot reasonably be characterised as matters that were within the contemplation of the makers to the Agreement when they agreed to the private arbitration of disputes between Services Australia and its employees about matters arising under the Agreement and the National Employment Standards. The Agreement does not confer any right or entitlement to damages in connection with bullying or harassment, adverse action, discrimination, dismissal or disability/future incapacity. It does not enter into the field of criminal conduct or corruption. These matters cannot fairly be described as “matters arising under” the Agreement and they do not relate to the National Employment Standards.
Further, and although the alleged broadbanding dispute might separately be a matter arising under the Agreement which deals with broadbanding in Part C, it is not mentioned in Mr Kathriarachchi’s Form F10 application and there is no evidence that it was discussed between the parties at the workplace level in accordance with clause A10 of the Agreement before the dispute was referred to the Commission in July 2023. Accordingly, to the extent that the dispute is about matters of this kind, the dispute is not properly before the Commission.
Conclusion
Section 587 of the Act allows for to the dismissal of an application that has no reasonable prospect of success. When considering whether an application “has no reasonable prospects of success”, full weight must be given to the expression as a whole. Further, the discretion to dismiss an application on these grounds is not to be exercised lightly and should only occur after taking an extremely cautious approach. It is not, however, necessary for a case to be found frivolous, untenable, groundless or faulty before it can meet the threshold required for dismissal on the basis that an application has no reasonable prospects of success.[2]
Whether an application has no reasonable prospect of success for the purposes of section 587 can depend on the time that the question is asked. That is, although an application may be one that has some reasonable prospect of success at the time it is made to the Commission, a subsequent change in circumstances might mean it no longer has reasonable prospects of success. [3]
That seems to me to be the case in relation to Mr Kathriarachchi’s application. At the time the application was made, the application had some reasonable prospects of success. The employment relationship was continuing, the Agreement provided for home-based work and flexible working arrangements, and there was a dispute about how those Agreement terms should be applied in the circumstances of Mr Kathriarachchi.
However, circumstances have changed. Mr Kathriarachchi is no longer in an employment relationship with Services Australia. He is not working from home, and he is no longer entitled to negotiate with Services Australia about home-based work or other flexible working arrangements. There is no reasonable prospect of this circumstance changing in the foreseeable future. The remaining aspects of his claim are either not properly before the Commission, or beyond jurisdiction because they are not about matters arising under the Agreement or relating to the National Employment Standards.
I find that the application has no reasonable prospects of success.
Disposition
The application is dismissed under section 587(1)(c) of the Act.
COMMISSIONER
Hearing details:
Determined on the papers.
[1] Department of Human Services Enterprise Agreement 2017-2020, clause A2 [2017] FWCA 5579 at [4] (26 October 2017) per Kovacic J.
[2] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank & Ors[2014] FWC 3408; Spencer v The Commonwealth of Australia (2010) 241 CLR 181.
[3] [2014] FWC 3408.
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