Inna Grabovsky v United Protestant Association NSW Ltd T/A UPA
[2019] FWC 2915
•30 APRIL 2019
| [2019] FWC 2915 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Inna Grabovsky
v
United Protestant Association NSW Ltd T/A UPA
(C2018/685)
COMMISSIONER JOHNS | SYDNEY, 30 APRIL 2019 |
Application to deal with contraventions involving dismissal – decision to issue s.368(3) certificate
[1] This decision is about why I have decided to issue a certificate pursuant to s.368(3) of the Fair Work Act 2009 (Cth) (FW Act) in respect of an application lodged with the Fair Work Commission (Commission) by Mrs Inna Grabovsky against the United Protestant Association NSW Ltd (UPA).
[2] However, before doing so it is necessary to set out the history of the matter to understand why 445 days have passed since Mrs Grabovsky lodged her application alleging that the termination of her employment by the UPA was in breach of the general protections provisions of the FW Act (an allegation denied by the UPA).
[3] The history of the matter is as follows:
a) On 9 February 2018 Mrs Grabovsky lodged a Form F8 – General protections application involving dismissal (GP Application). At all times in this matter (as in her many other applications) Mrs Grabovsky was represented by her husband Mr Grabovsky. Noting that the termination of Mrs Grabovsky’s employment occurred on 20 December 2018 the GP Application was not filed within the 21 days of the dismissal provided for by the FW Act.
b) On 9 March 2018 the UPA lodge a Form F8A – Response to general protections application. It denied liability. It also objected to the GP Application being “commenced outside the time limit under s.366 of the Fair Work Act.”
c) On 14 March 2018 her Honour Deputy President Gooley presided over a hearing into whether to grant Mrs Grabovsky an extension of time to file her GP Application.
d) On 15 March 2018 her Honour decided to grant an extension of time 1 and issued an Order2 to that effect.
e) In her decision the Deputy President had to determine the effective date of dismissal. Her Honour decided that date was 20 December 2017 for the following reasons:
What was the date of Mrs Grabovsky’s dismissal?
[22] In her application, Mrs Grabovsky said that she received a letter of termination, dated 14 December 2017, on 20 December 2017 advising that her employment had been terminated. It was submitted that this letter could not effectively terminate Mrs Grabovsky’s employment.
[23] In Commonwealth of Australia (Australian Taxation Office) v Wilson, a Full Bench of the Australian Industrial Relations Commission considered when a notice of dismissal was effective and held as follows:
“[11] Counsel for the Commonwealth referred us to a number of authorities but conceded that there are few on point. One decision which appears to us to bear directly on the issue is Transport Workers' Union of Australia v National Dairies Limited (1994) 57 IR 183. In National Dairies Keely J, sitting in the Industrial Relations Court of Australia, was required to decide whether the employment in question terminated before or after the date on which legislation providing statutory remedies for unfair dismissal commenced to operate. In the course of his judgment His Honour said:
"It was accepted by the respondent's counsel, for the purpose of the present hearing, that the employer's letter of purported termination was not received by the applicant until 30 March 1994. In my opinion the mere posting of the letter of termination does not in itself amount to a termination of the employment of the employee concerned until its contents are communicated to the employee. I am unable to uphold the respondent's submission that the intention of the legislature was to make it a contravention of the Act for an employer to perform actions "pursuant to which the employer seeks to terminate an employee even if that wish is never communicated to the employee ie even if a letter of termination posted by an employer is never received by the employee."
With respect we agree with His Honour's conclusion. Whilst it is clear that a contract can be terminated unilaterally, it is beyond contemplation, unless there is special provision in the contract to the contrary, that a contract could be terminated without communication of the termination to the other party. We think that at common law, where termination occurs by letter, generally the termination is not effective until the letter is received. There may be a qualification to that general position. It may be that, in some circumstances, a termination is effective when its communication could ordinarily be expected to have been received. If an employer has attempted in good faith to communicate the termination and the Commission forms the view that the employee has deliberately avoided receipt of such communication, it may be arguable that in such circumstances termination occurred despite the fact that it has not physically been communicated to the employee. Those circumstances did not, however, exist in this matter and we therefore refrain from further discussion of the point.” [Emphasis added]
[24] The Full Bench in Metropolitan Fire and Emergency Services Board v Duggan3 considered whether an employee could be dismissed if the employer had had not complied with s.117 of the Act. It held that:
“[32] In summary, it is clear in our view that if an employer terminates the employment of an employee without giving notice, or payment in lieu thereof, in accordance with an obligation owed by the employer under a contract, award, enterprise agreement or s.117 of the Act, the result is that the employer has acted unlawfully and/or wrongfully and the employee will have one or more causes of action available to him or her under the contract, award, enterprise agreement and/or the Act to remedy the deficiency in notice. However, an unlawful or wrongful dismissal does not invalidate or render void the termination of the employment relationship. Whether the employment relationship has been terminated is a question of fact.
[33] Accordingly, a notice of termination which does not comply with s.117 of the Act may be effective to bring about the termination of the employment relationship and may constitute “notice of the dismissal” within the meaning of s.383(a)(i) of the Act. Construing the Act in this way is consistent with the purpose of the relevant provisions, as set out above.4”
[25] It was also submitted that UPA could not dismiss Mrs Grabovsky when it did because she had outstanding leave entitlements and unpaid entitlements. I am not satisfied that this is correct. Upon termination, Mrs Grabovsky became entitled to be paid for any accrued annual leave and long service leave. If there are any outstanding entitlements those will need to be pursued elsewhere but that does not alter the date of termination.
[26] Accordingly I am satisfied that the dismissal took effect on 20 December 2017 and as this application was lodged on 9 February 2018 it was therefore not lodged within 21 days of the dismissal.
f) Despite being granted an extension of time Mrs Grabovsky appealed the Deputy President’s decision.
g) On 26 March 2018 the GP matter was allocated to me.
h) On 27 March 2018 my Chambers wrote to the parties in the following terms,
“This matter has been allocated to Commissioner Johns. Noting that the Commission’s sole role in a s.365 matter is to conduct conciliation, the Commissioner sees no reason why not to list it for conference at 10 am on 23 April 2018. Could the parties please provide their position in relation to the above proposed course of action….”
i) On 29 March 2018 Mr Grabovsky submitted that I should deal with the then various matters before the Commission in the following order:
i. The dispute matter being C2017/7037,
ii. The agreement matter being AG2017/5218, and then
iii. The GP Application being C2018/685.
j) On 3 April 2018 the UPA and parties in the agreement matter were asked to respond to Mr Grabovsky’s suggested ordering of proceedings.
k) On 4 April 2018 the ANMF NSW Branch indicated that it agreed “with Mr Grabovsky’s proposal for the order in which the matters should be heard.”
l) On 5 April 2018 the HSU indicate that it was “content to proceed as the Commission prefers”.
m) On 5 April 2018 the UPA responded as follows:
“C2018/685 - Dismissal matter
The respondent objects to the Fair Work Commission arbitrating this matter. Therefore the Commission’s remaining role is to determine whether there is any likelihood of resolution of the dispute in a conciliation.
The respondent acknowledges that the applicant’s representative has filed an Appeal of DP Gooley’s decision – matter no: C2018/1708. Despite this development, the respondent does not see any point in a conciliating being convened by the Commission.
The proceedings relate to an allegation of adverse action in circumstances where the respondent has proceeded to terminate the employment of an employee who has been absent from the workplace for over four years and where the employee does not actually dispute the fact that she cannot return to work with the respondent.
The allegations made by the applicant in support of this application are in part connected to facts and matters that are in dispute in other current (as well as previous) proceedings. The applicant alleges that the respondent was motivated to terminate the applicant’s employment to avoid her being able to be involved in the Enterprise bargaining that was due to commence.
By way of background, the [GP Application is] the 11th set of proceedings commenced by the applicant against the respondent in the Fair Work Commission (the appeal of the decision of DP Gooley is the 12th). The applicant’s allegations relating to the content of the respondent’s Enterprise Agreement have been heard and determined or otherwise relate to matters to which the Commission has no jurisdiction. These allegations and the jurisdictional points have been the subject of lengthy Commission proceedings and Full Bench appeals, all of which have been determined against the applicant. There is no new evidence or facts contained in the new applications. In any event the applicant’s allegations will be vigorously defended by the respondent.
The positions of the parties are intractable. In the respondent’s submission, the [GP Application] will not benefit from a conciliation convened in the Commission.
As a result, the respondent considers that the preconditions of s368(3) of the Fair Work Act can be made out: in the circumstances all reasonable attempts to resolve the dispute, including conciliation, are likely to be unsuccessful.
It is for these reasons that our solicitors have requested the issue of the certificate under s368(3).” (emphasis added)
n) Noting that the UPA invited the Commission to issue a certificate under s.368(3) of the FW Act, on 6 April 2018 Mr Grabovsky was invited to make a submission about the same.
o) On 11 April 2018 Mr Grabovsky submitted that no certificate could be issued because Mrs Grabovsky had not been properly terminated by the UPA and “continues to be de jure employee.” If Mr Grabovsky was correct in that submission it also means Mrs Grabovsky was not entitled to commence the GP Application which, as a condition precedent, requires that there be a dismissal. In any case this matter was dealt with by the Deputy President in her decision. Mr Grabovsky then alleged contraventions of the relevant enterprise agreement and referred to other proceedings before the Commission including appeals which should preclude me from issuing a certificate pursuant to s.368(3) of the FW Act.
p) Later that day (11 April 2018) I advised the parties that I had decided “not to further consider the matter of issuing a certificate until after the conclusion of the Dispute Matter (C2017/7037) and [the] Agreement Matter (AG2017/5218).”
q) On 21 May 2018 a Full Bench refused Mrs Grabovsky permission to appeal the decision of the Deputy President. 5
r) On 24 September 2018 Mr Grabovsky made an application to the Full Bench to “correct obvious errors” in their May 2018 decision. The application was made pursuant to s.602 of the FW Act.
s) On 30 November 2018 the Full Bench dismissed the s.602 application. 6
t) On 5 December 2018 I disposed of the Dispute Matter (C2017/7037) by dismissing the application pursuant to s.587 of the FW Act. Mr Grabovsky appealed that decision.
u) On 26 March 2019 a Full Bench refused permission to appeal my 5 December 2018 decision. Consequently, the Dispute Matter (C2017/7037) was now at an end. That left the conclusion of the Agreement Matter (AG2017/5218) as the only impediment to me returning to deal with the GP Application.
v) Today, the UPA discontinued the Agreement Matter (AG2017/5218). Consequently, like the Norwegian Blue parrot in the well know 1969 Monty Python Flying Circus skit the Agreement Matter “is no more", it "has ceased to be", it “is an ex-parrot" – correction ex-proceeding.
[4] By reason of the:
a) Dispute Matter having been resolved by the Full Bench refusing permission to appeal; and
b) Agreement Matter having been concluded by it being discontinued,
the two conditions precedent I set to me dealing with the GP Application have now been satisfied. I now do so.
[5] Noting that the UPA has already indicated that it will not consent to the Commission arbitrating the GP Application under s.369 of the FW Act, the only relevant power of the Commission is to be found in section 368 of the FW Act. It provides as follows:
“368 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).
(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).
(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.”
[6] In the present matter I am satisfied that an application has been made under s.365 of the FW Act. Consequently, pursuant to s.368(1) I “must deal with the dispute (other than by arbitration).”
[7] The note to s.368 provides that,
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.
[8] The use of the word “may” means that I am not required to deal with the dispute by any particular means.
[9] In his submission on 29 March 2018 Mr Grabovsky noted that the GP Application had been allocated to me in addition to me already having carriage of the Dispute Matter and the Agreement Matter. He wrote,
“Allocation of all matters concerning the same parties to one Member of the Commission is a prudent decision because all matters are interconnected and [the] Member of the Commission will have full and comprehensive information from both sides of the conflict to make an informed decision, which in the case of multiple Members could not be achieved to the same degree.”
[10] I agree. There have been considerable benefits to the parties and efficiencies in the conduct of various proceedings derived from a single member dealing with all of the various applications at first instance. For my manifold sins that was me. Consequently, I am well informed about the attitude of the parties to resolving their various differences through mediation or conciliation. I have seen no evidence that mediation or conciliation would be productive.
[11] In any case, in the present matter, I note that the UPA have already submitted that
“The positions of the parties are intractable. In the respondent’s submission, the [GP Application] will not benefit from a conciliation convened in the Commission.”
[12] That submission is consistent with how the Respondent has conducted itself in each and every matter before me. The UPA has no interest in resolving, through voluntary means, the $90,000 claim being made by Mr Grabovsky on behalf of his wife.
[13] For these reasons I am satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful.
[14] A Certificate pursuant to s.368(3) will be issued concurrently with this decision.
COMMISSIONER
<PR707690>
1 [2018] FWC 1549.
2 PR601195.
3 [2017] FWCFB 4878
4 Ibid
5 [2018] FWCFB 2474
6 [2018]FWCFB 6928
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