Harvey v SOUTH 32 Trading as Cannington Pty Ltd

[2017] FCCA 1471

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARVEY v SOUTH 32 TRADING AS CANNINGTON PTY LTD [2017] FCCA 1471

Catchwords:
INDUSTRIAL LAW – Summary dismissal application – whether the court has jurisdiction to hear this matter – application dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.340, 341, 343, 344, 351, 352, 370

Anti-Discrimination Act 1991 (Qld)

Applicant: JOHN WILLIAM HARVEY

Respondent: SOUTH 32 TRADING AS CANNINGTON PTY LTD

File Number: BRG 201 of 2017

Judgment of: Judge Vasta

Hearing date: 19 June 2017

Date of Last Submission: 19 June 2017

Delivered at: Brisbane

Delivered on: 19 June 2017

REPRESENTATION

Counsel for the Applicant: Mr R. Cameron

Counsel for the Respondent: Mr Pollock

Solicitors for the Respondent: Herbert Smith Freehills

ORDERS

1. That the Application in a Case filed 30 March 2017 be allowed.

2. That the Application filed 6 March 2017 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 201 of 2017

JOHN WILLIAM HARVEY

Applicant

And

SOUTH 32 TRADING AS CANNINGTON PTY LTD

Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. This is an application for summary dismissal. 

2. On 6 March 2017, the Applicant filed in this Court, an application seeking redress from dismissal from employment in contravention of a general protection.  The application in form 2 was filled out by the Applicant.  Part G of form 2 states the following:

   “24. What are the grounds for the claim that the employee was dismissed in contravention of a general protection (set out in numbered paragraphs the facts relied on and the provisions of the Fair Work Act relevant to the claim). If relying on section 340, specify the “workplace right” claim? If relying on section 351, specify the attribute in section 351(1).”

3. The Applicant, relevantly, set out in section G the following paragraphs. 

   “7.  Clearly the respondent, in changing the applicant’s role by increasing his duties and responsibilities as well as imposing a brutal regime of hours, placed the Applicant at severe disadvantage, given his age (62) and his medical condition.

   8.  It is further submitted that the Respondent well knew the Applicant’s age and medical condition, but completely disregarded both factors.

   9. By its actions in requiring the Applicant to bear such onerous workload, the Respondent breached sections 340 and 341 of the Fair Work Act 2009.

   10. The respondent dismissed the Applicant in circumstances which amount to gross unfairness, having disregarded his age and physical disability in overloading his responsibilities and requiring him to work long hours, knowing the Applicant would experience hardship and difficulties in coping.” 

4. By this application, what the Applicant was doing was setting out that the grounds for his claim of dismissal and contravention of a general protection revolved around s.340 and s.341 of the Fair Work Act 2009 (Cth) (“the FW Act”).

5. Before one can launch such an application that has been launched by the Applicant, s.370 of the FW Act states this:

   “370 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.”

6. In the Applicant’s application he annexes the certificate created by Deputy President Lawrence on 21 February 2017.  However, one then has to look at the actual claim that was before the Fair Work Commission.  In that claim, which is annexed to the affidavit of Jessica Leigh Brivik, the alleged contravention is described this way:

   “3.  Alleged contravention:

   3.1.  Describe the actions of the respondent that have lead you to make this application:

   I believe that I was dismissed from my employment because of my age and my health status.  I have been a long term, loyal and hardworking employee and I have been overloaded with responsibilities for over two years. 

   Furthermore, my former employer was well aware of my health status, given that I suffered a cardiac event whilst onsite and subsequently management knew full-well that I was required to take prescription medication twice daily for my heart condition and anxiety levels. 

   Section 351(3)(c) of the Fair Work Act 2009 incorporates the Anti-Discrimination Act 1991 (QLD) and I say that sections 7(f) and (h) of the Anti-Discrimination Act 1991 apply to this general protections application.

   3.2. Which sections of the Fair Work Act to you allege the respondent contravened when they took or threatened or organised the above action against you?”

   There are then a number of alternatives for Division 3, which is workplace rights, which contains s.340, s.343 and s.344. Then there is Division 4, Division 5 (which is other protections) which has s.351 or s.352. The only box that is ticked is s.351 in Division 5.

   At Part 3.3 it states:

   “3.3Explain how the action you have described had contravened the sections that you have identified.

   I believe that my former employer used this disciplinary matter as a means to be rid of me, when in fact the real reason the company wanted to get rid of me was my age and health.  The company wanted to avoid the cost of making me redundant. 

   As I stated previously, the Anti-Discrimination Act 1991 (QLD) has been adopted by the Fair Work Act 2009 and I believe the discrimination applies to my age (I am 62) and my health (I suffer from anxiety and have a heart condition).”

7. This dispute that was before the Fair Work Commission clearly raises the Applicant’s claim.  That claim was that he was dismissed because he was discriminated against in that a disciplinary matter was used as subterfuge to dismiss him when, in fact, the company wanted to get rid of him because he was too old and too ill for them to keep on the books and they wanted to avoid the cost of his being redundant. 

8. That dispute was the subject of the certificate given by the Fair Work Commissioner.  When one then contrasts this, again, with the originating application, the claim has changed. 

9. It is not a claim under s.351 anymore. It is a claim under s. 340 because paragraph 9 says:

   “9. By its actions in requiring the Applicant to bear such onerous workload, the Respondent breached sections 340 and 341 of the Fair Work Act 2009.

   10. The respondent dismissed the Applicant in circumstances which amount to gross unfairness, having disregarded his age and physical disability in overloading his responsibilities and requiring him to work long hours, knowing the Applicant would experience hardship and difficulties in coping.” 

10. Notwithstanding the valiant efforts of Mr Cameron to convince me otherwise, there really is only one way that can be read.  Not that the Applicant was discriminated against because he was old and not in the peak condition of health, but that the Respondent ignored his age and ignored his physical disability in making him work. 

11. So in many ways, it is almost the exact opposite of what was before the Fair Work Commission. In those circumstances, it seems very difficult to see how it is that the Court has jurisdiction given that s.370 says that the Court can only look at a matter where there has been a certificate issued in relation to the dispute.

12. Very helpfully, Mr Cameron did try and limit the question that I had to look at to this:  “Is the gravamen of the dispute the circumstances relied upon by the employer to dismiss the applicant?”

13. Mr Cameron submits that the gravamen of the dispute is still the same.  With the greatest of respect to Mr Cameron, I disagree with that.  The circumstances relied upon before the FWC are totally different to what is being relied upon in the application before this Court.  But this observation should not come as any surprise to the Applicant. 

14. The Applicant filed his application on 6 March 2017 and the response was filed on 28 March 2017 which, specifically, pleaded that the Applicant had not invoked the jurisdiction of the Court.  Two days later, the Respondent filed an interlocutory application or application in a case for summary dismissal.  The matter was mentioned before me on 10 April 2017 where the Applicant was put on notice exactly what it was that the Respondent was asking.  I made orders as to the provision of written submissions.

15. My order was that the Respondent file and serve written submissions by 4 May 2017; that the Applicant file and serve written submissions by 22 May 2017 and that the Respondent reply to those by 5 June 2017.  The Respondent did file his submissions on 3 May 2017.  The Applicant filed on 25 May 2017 and then filed a statement of the Applicant on 26 May. 

16. In the submission, it was said, with regard to workplace right, that:

    “While it is conceded the contraventions alleged by this application are far from clear-cut, it is respectfully submitted that the incidences of clear-cut contraventions of workplace rights are few and far between in Australian workplaces.”

17. There was no mention in those submissions of discrimination pursuant to s.351 having been undertaken by the Respondent in their dealing with the Applicant. Instead, it kept talking about a workplace right, a right to access sick leave and that the Applicant was denied a right to a safe and healthy workplace.

18. The statement of the Applicant himself does not bring the matter any clearer.  He simply says in his statement, under the heading Contraventions:

    “For a considerable period of time the respondents significantly increased my workload.  The company, through its management, did not consult with me in relation to my workload, nor did they discuss my health and wellbeing.  On the day on which I was stood down, I informed management I was ill but, notwithstanding that, I was placed in a room for three hours and my complaint was completely ignored.  I was informed at noon on 27 October that I was stood down and I was due to fly back to Townsville later that afternoon, and when I was back in Townsville I was pressured into participating in the respondent’s disciplinary process even though I was unwell and had provided management with my medical certificate.”

19. Again, there was no mention of discrimination and to assume and infer that those statements, made either in the submissions or in the statement of the Applicant, referred to discrimination is drawing an extremely long bow and it is far too long a bow for me to draw. 

20. The counsel for the Applicant, Mr Cameron, submitted that I could now allow for an amendment to be made to the application, but, it seems to me, that ship has well and truly sailed.  If such an application were to have been made, it more properly should have been made between the filing of the application in a case and the mention before me on 10 April, or even in between the time on 10 April between then and the time when submissions were due.

21. But it has not occurred and it seems almost as if Mr Cameron has been brought in on a last-ditch mercy mission to try and save the day.

22. Whilst he has acted extremely valiantly and in the best traditions of the Bar in putting his submissions, unfortunately for him and for the Applicant, I do not find that there is merit in their arguments. 

23. The fact is, this dispute that has been put before this Court was not put before the Fair Work Commission and therefore there is no certificate from the Fair Work Commission that would allow, pursuant to s.370 of the FW Act, for this matter to be brought before the Court.

24. I allow the application in a case that was filed on 30 March and dismiss the application filed on 6 March.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  28 June 2017