Halls v McCardle and Ors
[2014] FCCA 316
•25 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HALLS v KR & MA MCARDLE & SONS PTY LTD & ORS | [2014] FCCA 316 |
| Catchwords: INDUSTRIAL LAW – Fair Work Act general protections court application – no certificate under s.369 of the Act because no application made by applicant under s.365 of the Act in the first instance – meaning of “must not” make an application. |
| Legislation: Fair Work Act 2009 |
| Rentuza v West Side Auto Wholesale [2009] FMCA 1022 Lawrence v Coal & Allied Mining Services Pty Ltd [2010] FWAFB 10089 Birch v Wesco Electrics (1966) Pty Ltd [2012] FMCA 5 |
| Applicant: | JEREMY CHRISTOPHER HALLS |
| First Respondent: | KR & MA MCARDLE & SONS PTY LD |
| Second Respondent: | CAMERON NOMINEES PTY LTD |
| Third Respondent: | WOOLWORTHS LIMITED |
| File Number: | ADG 336 of 2013 |
| Judgment of: | Judge Lindsay |
| Hearing date: | 9 December 2013 |
| Date of Last Submission: | 9 December 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 25 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Solicitors for the Applicant: | Not Applicable |
| Counsel for the First Respondent: | Ms Kaukas |
| Solicitors for the First Respondent: | Donaldson Walsh Lawyers |
| Counsel for the Second Respondent: | Mr Mills |
| Solicitors for the Second Respondent: | Hunt and Hunt |
| Counsel for the Third Respondent: | Ms Kerr |
| Solicitors for the Third Respondent: | Woolworths Limited (Legal Department) |
ORDERS
The application be summarily dismissed under Rule 13.10(c) of the Rules of Court.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 336 of 2013
| JEREMY CHRISTOPHER HALLS |
Applicant
And
| KA & MA MCARDLE & SONS PTY LTD |
First Respondent
| CAMERON NOMINEES PTY LTD |
Second Respondent
| WOOLWORTHS LIMITED |
Third Respondent
REASONS FOR JUDGMENT
This application seeks orders against the applicant’s employer, and a company to whom his employer provided services and a company to whom that second respondent in turn provided services.
The applicant is a truck driver. He drives semi-trailers. His employers provided the trucks and at the times relevant to this application he worked at two sites where his employer had a contract with the second respondent who in turn had a contract with the third respondent (and also Big W) to provide trucks and drivers for the delivery of goods to the third respondent (in Big W) at various sites in Adelaide. The applicant was employed by the first respondent on 2 October 2013. He acknowledges the employment was probationary but says that the length of the probationary period was a matter that was only agreed verbally between him and his employer.
On the day prior to his employment he had undergone a site-induction experience at Woolworths at Gepps Cross.
The events giving rise to the action, appear to have occurred on 19 October 2013.
There is some confusion relating to dates in affidavit filed by the application in support of his application.
I have already noted his claim ([3] of his Affidavit) that his employment commenced on 2 October 2013.
In dealing with his key complaint (in [6] of his Affidavit) he says that it occurred on “Saturday 19/09/13”. [5] of the Affidavit refers to an incident on 18/09/13. There is a reference in [9] to him being told that he would be advised of the outcome of an investigation on “Monday 21/09/13”.
[11] then refers to events of “Sunday 20/09/13”. [12] refers to events of “21/09/12”. [13] then refers to events of “21/09/13 at the beginning of the paragraph but then to “tomorrow morning on Tuesday 22/10/13”. The balance of the affidavit picks up the reference to the events having occurred in October 2013 rather than September 2013 and this makes sense as his employment did not commence until the beginning of October. The reference to 2012 must also be taken to be a (different) typographical error.
Proceeding on that basis, then, it is asserted that there was a warning given by the officer of the second respondent on 18 October 2013 to him because he reported a safety breach in a Big W trailer. He was told not to make such a report again without notifying this officer first and was told that to do otherwise was against “Woolworth’s policy”. That is all the information that is given about that particular matter.
It is the incident that occurred on the following day, the 19 October 2013 (as I have taken the date to be) which gives rise to the action. There is a great deal of detail provided in relation to the incident that day. In summary it involved the applicant coupling a trailer on a docking station when a red light was shown. The circumstances in which this occurred are explained in detail in his application.
I do not propose to canvass those details in these Reasons.
The officer of the second respondent, which was managing the dispatch of the trailers at the site, suspended him from work on that day pending an investigation. The applicant informed his employer. Subsequently on that day his employer informed him that they would “let him go”.
A meeting had been arranged for 21 October 2013. A representative of the second respondent and of his employer was present with the applicant at that meeting. At the end of the meeting the employer’s representative confirmed that he would be dismissed. That was reconfirmed on 22 October 2013 and he received a letter of termination on 23 October 2013 dated 22 October 2013 telling him that the employer no longer wished to continue with his employment (and confirming that he had been in his probationary period).
Subsequently on 30 October 2013 the applicant received an email from the Chief Executive Officer of the second respondent, indicating that he had advised the first respondent, the applicant’s employer; that the outcome of the investigation was that whilst the applicant had been found guilty of a breach of the coupling policy at the site, he was “now permitted back on site”. The applicant raised this with his employer but to no avail.
I have given a very brief summary of the factual matters set forth in the applicant’s documents. They are not pleadings and do not purport to be. His application filed contemporaneously with it sets out the orders he is seeking and the grounds for them. It is not a Points of Claim document but it does purport to set out the statutory basis of the applications, the factual basis of such applications and the remedies sought.
The first and second respondent in their Responses raise, inter alia, a threshold point.
The first duty of the court is to be satisfied that it has a jurisdiction to deal with the subject matter of the proceedings. Authorities for that proposition, if they be considered necessary, are to be found in the footnote [23] of the judgment of Federal Magistrate Lucev (as he then was but whom I will hereinafter refer to as Judge Lucev) in Rentuza v West Side Auto Wholesale [2009] FMCA 1022, a decision I will discuss further hereunder.
The application filed on 11 November 2013 indicates that it is an application under the Fair Work Division, that it is not a small claim but nothing further. It indicates that the orders sought by the application are set out in the claim filed with the application. It also sets out that the grounds of the application are set out in the claim filed with the application. It seeks no interlocutory, interim or procedural orders.
The claim (Form 4) is headed
Claim under the Fair Work Act 2009 alleging contravention of a general protection.
The grounds are set out in Part G of the document. Part G is headed “contravention (s) alleged”. All the applicant marks under the heading is “see attached sheet(s)”. The attached sheet is headed “Part G – Contravention(s) alleged:
19. Grounds:
The applicant then sets out grounds in a series of 8 numbered paragraphs.
In (1) the applicant alleges that he was refused a workplace right under s.341(1) Workplace Rights (b). This section is a section that defines a workplace right.
In [2] he alleges that he was denied the ability to make a complaint or enquiry under s.341(1)(b) and (c). This section is a section that defines a workplace right.
In [3] he alleges breach of s.341(2). This section is a section that defines a workplace right.
In [4] he alleges coercion in terms of s.355(c)(d).
In [5] he alleges undue influence or pressure under s.344.
In [6] he alleges that the second respondent misled the first respondent to lead to adverse action against him under s.345.
In [7] he alleges discrimination under s.351(3)(e).
In [8] he alleges a breach of Part 9 ss.(1)(2)(a) and (b), (3) and (4) of the Whistleblower Protection Act 1993.
The next page of the document is headed “Part 1 – Remedy sought ‑‑ compensation – loss of income”. It particularises his calculation of compensation requested from 19 October 2013 to 31 December 2013 in the amount $16,500.00 and seeks reinstatement by the first respondent in the alternative that a pecuniary amount be paid by the second respondent for “salary make-up” to the first respondent. Finally it seeks that if the court does not order reinstatement that there be an award of compensation to “cover damages” for the period of unemployment, the loss of income and for the “work place right violations” and loss of career.
The combined effect of the two documents filed by the applicant is that he seeks reinstatement or compensation for loss of earnings for breach of certain workplace rights identified and in addition seeks orders under the Whistle Blowers Protection Act 1993. This must be a reference to the South Australian Act of that name.
The first and second respondents rely upon s.365 of the Act. That section provides:
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
That section is simply facilitative. It entitles a person who has been dismissed, and dismissed in contravention of Part 3-1 of the Act, to apply to the FWC. Manifestly, and in accordance with his documents filed and his oral submissions before me, the applicant was dismissed.
Section 386 in dealing with unfair dismissal claims, defines dismissal. It provides:
Meaning of dismissed
(1) A person has been dismissed if:
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
The applicant has not brought an unfair dismissal application under s.379.
When the applicant filed his application on 11 November 2012 s.371 of the Act provided:
371(1) A person who is entitled to apply under section 365 of the FWC for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a)the FWC has issued a certificate under section 369 in relation to the dispute; or
(b)the general protections court application includes an application for an interim injunction.
The Act was amended in 2013. Certain amendments made at that time did not come into operation until 1 January 2014. Amendments to Division 8 of Part 3.1 of the Act were among those. Section 370 of the Act now 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.
Essentially the old s.371(2) was “rolled in” to the old s.371(1) of the Act, both now appearing in s.370 of the Act. Other sections of the Division were replaced.
The effect of the sections is the same. Section 369 of the Act is now repealed but finds itself now expressed in s.368(3)(a). Section 369 provided at the time the applicant filed his proceeding:
369If the FWC is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, the FWC must issue a certificate to that effect.
The first question that arises is whether the applicant has brought a general protections court application. That was defined by s.370(2):
370(2)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.
(That provision now appears in s.368(4)).
It is such an application.
The Explanatory Memorandum to the Fair Work Bill 2009 provided, at [1490], that:
Section 371(1) sets out the two circumstances in which a dismissed employee can make a general protections court application in relation to the dismissal. They are:
(a) the FWC has issued a certificate under section 369 in relation to the dispute; or
(b)the general protections court application includes an application for an interim injunction.
The applicant has made an application to the Court that the section provided he “must not make”. It would surely be an abuse of the process of the Court to allow such application to be heard by the Court. This Court has the power under Rule 13.10(C) to summarily dismiss such a claim if it is an abuse of the process of the court. That is the appropriate response of the Court. It is not a matter of the application falling outside of the jurisdiction of the Court created by the Act; it is a finding that the applicant has done a thing which the Act prohibited him from doing.
The applicant submitted that the decision of the Full Bench of the Fair Work Commission in Lawrence v Coal & Allied Mining Services Pty Ltd [2010] FWAFB 10089, supported his bringing this application to the Court in these circumstances. I have read that decision. I do not see how that decision even addresses these circumstances, however.
He also submitted that his application, being one brought under Rule 45.08 or 45.09 of the Rules of Court, did not require him to file a s.369 certificate.
The first and second respondents submit that the applicant was prohibited from making the application he did because, having not sought an interim injunction, he did not have a certificate under s.369. He did not have a certificate because he never asked FWC, under s.365 of the Act, to deal with the dispute.
What did s.371(1) mean (what does s.370 now mean) when it provides that a person “must not” bring such an application?
Judge Lucev considered a similar provision in Birch v Wesco Electrics (1966) Pty Ltd [2012] FMCA 5. The provision under consideration there was s.725 of the Act which provided:
725A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.
His Honour found:
Section 725 of the FW Act imposes a personal prohibition on a person making a second application or complaint of a kind to which one of ss.726-732 of the FW Act apply when there has already been made an application or complaint of a kind to which one other of ss.726 and 732 of the FW Act apply. That meaning:
is plain on the face of the statute;
was intended by the Commonwealth Parliament, as confirmed by the extracts from the FW Bill Explanatory Memorandum set out above; and
is confirmed by relevant case law.
He expressed the same view about the effect of s.779 of the Act in Rentuza v Westside Auto Wholesale [2009] FMCA 1022 (see [18] thereof).
The meaning of the expression “must not” in s.371 is the same as in the two sections of the Act which His Honour was dealing with in those two cases.
I do not accept that this application was not brought under Rule 45.06, as the application contended. That sub Rule provides:
45.06 An application for an order in relation to an allegation that an employee was dismissed in contravention of a general protection mentioned in Part3-1 of the Fair Work Act must:
(a) be in accordance with the approved form; and
(b) be accompanied by:
(i) a claim in accordance with the approved form;
and
(ii) unless the application includes an application for an interim injunction, a certificate issued by the Fair Work Commission under section 369 of the Fair Work Act that provides that the Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.
The point the applicant desired to make before me was that he is not alleging that he was “dismissed” in contravention of a general protection. He says that he is not obliged, then, to file a certificate, and that his claims fall under Rule 45.08 or 45.09.
This application arises out of his dismissal. All of the remedies he seeks relates to his loss of employment. He wishes to be re-instated or compensated for his loss of employment. He was dismissed by the first respondent who responded to his being banned from a site by the second respondent; the second respondent is prepared to have him back on site; the first respondent will not have him back. They stood by their dismissal of him.
He has brought an application under Division 2 of Part 4-1 for orders in relation to contravention of Part 3-1. It is a general protections court application. His application (s.355(c) and (d)) falls in to that category, so does his application for undue influence (s.344). His application under s.345 in relation to misrepresentation also falls in to that category; the same applies to his application under s.351 for discrimination.
The applicant was dismissed. Whether he says he was not dismissed “in contravention” of a general protection described in Part 3-1 of the Act, as the Rule requiring him to provide a certificate provides, his being a person “who has been dismissed” means s.365 of the Act is applicable to his circumstances. That being the case, s.371(1) is also applicable.
Whether the Rules of Court are drawn in concinnity with the relevant provisions of the Act, for these purposes, does not matter.
He has made an application which the Act says he must not make.
The claim under the State Act raises different concerns. There is no articulation of an accrued jurisdiction entitlement to bring the Application. The Federal claim has failed. Truly, the Federal jurisdiction was never itself engaged. I recognise that an accrued jurisdiction claim can survive the dismissal of a federal claim which formed part of the one justiciable controversy but the federal claim ought not to have been brought at all. It was a claim the applicant “must not” make.
The claim in so far as it is a general protections court application (that is, all of it except the Whistleblowers Act claim) will be summarily dismissed under Rule 13.10(c). The balance of the claim will be dismissed under the same sub-Rule, though it might also have been dismissed under sub-Rule (a). I so order.
The applicant can bring his application under s.365 of the Act and seek an extension of time under s.366 is so advised.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Lindsay.
Associate:
Date: 25 February 2014
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