Giuseppe Vellotti v Socomec Pty Ltd T/A Socomec UPS

[2014] FWC 9392

[2014] FWC 9392

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.372—General protections

Giuseppe Vellotti
v
Socomec Pty Ltd T/A Socomec UPS
(C2014/6753)

COMMISSIONER WILSON MELBOURNE, 22 DECEMBER 2014

Application to amend s372 “non-dismissal dispute” application to become a s.365 “application for the FWC to deal with a dismissal dispute”.

[1] On 12 October 2014, Giuseppe Vellotti made application to the Fair Work Commission (the Commission) pursuant to s.372 of the Fair Work Act 2009 (the Act) alleging contraventions of the general protections provisions of the Act. The form F8 – General Protections Application made by Mr Vellotti and filled in by him, answered “no” in response to the question “have you been dismissed?”

[2] Mr Vellotti’s application was the subject of a conciliation conference before me on 10 November 2014. The conference was unsuccessful in resolving the dispute between the parties.

[3] In the course of the conference, it became apparent that Mr Vellotti’s employment with Socomec Pty Ltd had ended and that his application might more appropriately be made under s.365 of the Act. Broadly speaking, s.365 allows an application alleging general protections contraventions to be made by a person who has been dismissed, whereas s.372 is available to an applicant alleging a general protections contravention but who is not entitled to apply pursuant to s.365. Both sections are within the Act’s Chapter 3, Part 3-1, Division 8, and s.336, also within Part 3-1, sets out the Objects of the Part as follows;

“336 Objects of this Part

(1) The objects of this Part are as follows:

(a) to protect workplace rights;

(b) to protect freedom of association by ensuring that persons are:

(i) free to become, or not become, members of industrial associations; and

(ii) free to be represented, or not represented, by industrial associations; and

(iii) free to participate, or not participate, in lawful industrial activities;

(c) to provide protection from workplace discrimination;

(d) to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part.

(2) The protections referred to in subsection (1) are provided to a person (whether an employee, an employer or otherwise).”

[4] There is a dispute between the parties about whether Mr Vellotti actually received Socomec’s letter of termination of employment.

[5] Socomec submit in this regard that it provided a letter of termination to Mr Vellotti on 10 October 2014 by leaving one copy of the letter on the doorstep of his home and a further copy in his letterbox. This circumstance came about following one or more telephone conversations or other exchanges between Mr Vellotti and Mr Fraser, Socomec’s Managing Director, and the later attendance at Mr Vellotti’s home by Mr Fraser and another Socomec employee, which did not elicit an opportunity to meet with Mr Vellotti. Apparently the letter of termination had been pre-prepared by Mr Fraser, who wanted to provide it to Mr Vellotti in person but was not able to do so.

[6] In any event, by the time of the conference held on 10 November 2014, it was apparent that Mr Vellotti’s employment had ceased some time earlier. In all probability, and because of the circumstances disclosed in the material on the file of this matter, Mr Vellotti knew his employment had ended by the time he made his application to the Commission.

[7] I am satisfied therefore that this is a dispute involving allegations of dismissal, without making any finding that a dismissal has occurred.

[8] Mr Vellotti has not made any submissions about why he commenced his application under s.372 of the Act instead of s.365.

[9] Socomec opposed the application to amend the basis of Mr Vellotti’s application. A perusal of the company’s grounds for objection show firstly that Socomec objects to an amendment because it regards Mr Vellotti’s allegations as false and unmeritorious; secondly that they maintain there has been a dismissal; and thirdly that Mr Vellotti is alleged by them to be engaging in harassing behaviour against the company including by continuing to make contact with company officers even after the conference before me referred to above.

[10] Section 586 of the Act allows the Commission to correct or amend an application or otherwise waive an irregularity in the form or manner in which an application is made to the Commission, with the section providing as follows;

“586 Correcting and amending applications and documents etc.

The FWC may:

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to the FWC.”

[11] There is precedent for the Commission permitting an amendment to the section of the Act under which a general protections application is made.

[12] In the matter of Dr Tareq Abu-Izneid v Charles Darwin University, 1 the Full Bench considered, amongst other matters, whether an application made under s.372, could be amended and allowed to proceed under s.365 of the Act.

[13] The Full Bench noted the decision in the earlier matter of Hewitt v Topero Nominees 2 in which the Full Bench had concluded that “the Commission does not need to be satisfied that the applicant has been dismissed from their employment before holding a s.368 conference and that it is sufficient that the Commission has before it an application that on its face alleges a dismissal in contravention of Part 3-1.”3 Having considered this point, the Full Bench directed that the relevant file “be amended to record that it is made under s.365 of the Act because it was apparent at the time of the application that Mr Abu-Izneid had been dismissed”.4

[14] The circumstance in Dr Tareq Abu-Izneid v Charles Darwin University is distinguishable from the later decision of the Full Bench in the matter of Peter Ioannou v Northern Belting Services Pty Ltd, 5 in which consideration was given to whether it is permissible under s.586 to amend an application made under s.394 of the Act, which relates to the making of an application for an unfair dismissal remedy, so that the application became an s.365 general protections application. The Full Bench refused the application making the following pertinent findings;

“[17] In our view, the power in s.586 of the Act cannot be used to allow an amendment to an application that fundamentally changes the kind of application that was originally made. The amendment sought by the applicant requires a fundamental change to the kind of application originally made, by transforming an unfair dismissal application into an application under s.365, and might allow this to be done without the applicant meeting the procedural and other requirements set out in the Act for making of a general protections application.

[18] An unfair dismissal application under s.394 is fundamentally different to a general protections application under s.365, even though both may arise from the same set of circumstances involving the dismissal of an employee.

[19] The legislative scheme for an unfair dismissal application is quite distinct from that pertaining to a general protections application. The matters for consideration by the Commission in determining whether there has been an unfair dismissal are specified in the Act as well as the remedies and relief available and the matters relevant to the determination of such remedies. The general protections provisions of the Act, in Chapter 3, Part 3-1 include a range of different protections (including in relation to workplace rights, industrial activities and discrimination) which are defined in the Act and which do not involve a broader assessment of “unfairness” or “harshness” against statutory criteria.

[20] The general protections are civil remedy provisions the contravention of which can lead to the imposition of financial penalties and a reverse onus of proof applies in relation to the reasons for taking adverse action. The determination of general protections applications by a court involves the exercise of judicial power whereas the Commission exercises arbitral power in respect of s.394 applications. The remedies available are also different. A compensation order made by a court is not capped and is not contingent on reinstatement being inappropriate. Injunctive relief is also available. Further the discretion to allow a further period within which to make a s.365 application is exercisable subject to similar but not the same considerations.

[21] Unlike in the courts, there is no general ability to apply to the Commission for relief. Applications can only be made to the Commission under specific provisions of the Act and there are jurisdictional, procedural and other requirements under the Act, the Regulations and the Rules which apply to different applications. Section 585 of the Act requires that an application to the Commission must be in accordance with the procedural rules relating to applications of that kind.

[22] Having regard to these considerations, we have serious reservations whether the power in s.586 of the Act can be relied upon to convert an unfair dismissal application into a general protections application. Section 586 does not provide a source of power to revoke or set aside an application. Neither does it, in our view, enable the Commission to “correct” or “amend” an application made under one type of statutory provision so that it becomes an application under a fundamentally different provision.” 6 (references omitted)

[15] In the particular case before me, Mr Vellotti’s application is not to make an amendment so as substitute access to one form of rights and corresponding outcomes to a completely different form of rights, with substantially different outcomes, which was the scenario in Ioannou v Northern Belting Services. In that case, the Applicant sought to amend an application made under Part 3-2 of the Act so that it became one made under Part 3-1. Instead, in Mr Vellotti’s matter, the application is to make an amendment to be able to access the same broad form of rights found within the same Part of the Act, Part 3-1.

[16] Accordingly, and having taken into account Socomec objections, I grant the application made by Mr Vellotti. I am persuaded that an amendment of the nature he seeks is permitted by s.586, and not prevented elsewhere, and that it is right and proper to do so and that it was apparent to him, as it was to Socomec, at time the application was made, on 12 October 2014 that his employment had ended.

[17] An order giving effect to my decision is issued at the same time as this decision.

[18] There are several other matters which warrant comment.

Further conciliation conference

[19] In the course of the conference held on 10 November 2014, Mr Vellotti stated that he had not received the employer response to his general protections application. Socomec advised at the time that they had served the Form F8A on Mr Vellotti at his last known email address, however the company believed that Mr Vellotti was blocking emails coming from Mr Fraser’s email service.

[20] Notwithstanding that a copy of the employer response was provided to Mr Vellotti in the course of the conference and that its elements were discussed with him, he subsequently wrote to the Commission saying that he was not afforded an opportunity to provide a detailed response to the employer response in the course of the conference and “that there were parts that were incorrect and false. This put the applicant in a position where there was no opportunity to rebut or respond in a prescribed manner”.

[21] As a result of this circumstance, the Commission indicated that it would convene a further conference of the parties for the purposes of conciliation, if Socomec consented to the conduct of such conference. Subsequently Socomec advised they were not prepared to be involved in a further conference.

[22] Having amended the application made by Mr Vellotti so that it is now an application pursuant to s.365, I am obliged to consider the provisions of s.368 of the Act, which broadly speaking require the Commission to deal with a dismissal dispute, and to do so other than by arbitration. I am satisfied, in all the circumstances, that the conference held by me on 10 November 2014 satisfies that obligation.

[23] Notwithstanding such view, I will again approach the parties to see whether they wish to attend a further conference for the purposes of attempting to resolve the dispute between them. In this regard, Socomec may care to review and consider a recent decision of the Federal Circuit Court of Australia in the matter of Sagona v R & C Piccoli Investments Pty Ltd & Ors (No.2), 7 in which consideration was given to the conduct of a Respondent that had been offered, but not participated in mediation endeavours, including before Fair Work Australia (as the tribunal then was). In that decision, Judge Whelan noted that “it is not just the unreasonable conduct of the Respondents but the opportunities thrown away to settle the matter by the processes of conciliation and/or mediation which, in my view, would justify an award of costs on an indemnity basis.”8

Socomec property

[24] Several comments have been made to the Commission in the course of the conference and later correspondence, including as recently as today, that certain pieces of property of the company are yet to be returned to Socomec. I also understand that Socomec provided a letter of demand to Mr Vellotti in this regard. I am in no position to determine whether any Socomec property is held by Mr Vellotti. However, the issue obviously continues to be part of the dispute between the parties.

[25] If any such property is yet to be returned to Socomec, I recommend Mr Vellotti return it as soon as possible.

Communications

[26] Difficulties are evidently present in Socomec communicating with Mr Vellotti either through his last known email address or otherwise, with Socomec alleging that Mr Vellotti has blocked emails from company officers, including in relation to this application before the Fair Work Commission. I advise that if emails or correspondence are being blocked, it is not helpful to Mr Vellotti’s situation and that it may work against him because important documentation that may assist in resolving his dispute may not be able to be communicated to him by Socomec. In this regard, I would recommend that if Mr Vellotti is uncomfortable with Socomec directly communicating with him, that he advise the Commission of this fact and propose a means by which communications can be provided in a safe but satisfactory and timely manner.

Unfair dismissal application

[27] On 22 December 2014, shortly before issuing this decision, Mr Vellotti advised the following to my Chambers;

“Dear Associate to Commissioner Wilson,

I have filed a Form F2—Unfair Dismissal Application,

It is my intention to withdraw the application for General Protection case number C2014/6753 - Vellotti v Socomec Pty Ltd to pursuant to the acceptance of the unfair dismissal application.

Reference #: [omitted]

Regards,
Giuseppe Vellotti.”

[28] Mr Vellotti also telephoned my Associate about this matter. In response to the email and telephone call, my Chambers emailed Mr Vellotti an uncompleted Notice of Discontinuance and ascertained from the Commission Registry that an unfair dismissal application form was lodged by Mr Vellotti on 22 December 2014.

[29] The unfair dismissal application is plainly outside of the time limits for the making of such an application set by s.394(2) of the Act, and I draw Mr Vellotti’s attention to comments made by the Full Bench in Ioannou v Northern Belting Services, which have some application here insofar as the need to seek an extension of time may apply (noting that the references to the section numbers will apply in reverse);

“[31] The appropriate course for the applicant in the present matter to take if he seeks to pursue an application under s.365 of the Act in relation to his dismissal in lieu of the unfair dismissal application, is to withdraw the s.394 application and to file a s.365 application. In such circumstances, the appropriate procedural and other requirements under the Act for the making of the s.365 application will need to be met and an extension of time sought in accordance with s.366 of the Act.” 9

[30] Notwithstanding these comments, the unfair dismissal application made by Mr Vellotti will be dealt with in accordance with the usual processes.

[31] It is a matter for Mr Vellotti whether he wishes to discontinue these general protections proceedings, and whether he wishes to make and continue an application for unfair dismissal remedy.

COMMISSIONER

 1   [2014] FWCFB 1553

 2   [2013] FWCFB 6321

 3   [2014] FWCFB 1553, at [11]

 4   ibid, at [17]

 5   [2014] FWCFB 6660

 6   Ibid, at [17] - [22]

 7 [2014] FCCA 2925

 8   Ibid, at [81]

 9   [2014] FWCFB 6660, at [31]

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