Jones v Groovy Freighters Pty Ltd - [2010] FMCA 673

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JONES v GROOVY FREIGHTERS PTY LTD

[2010] FMCA 673

INDUSTRIAL LAW – Termination of employment – general protection provisions – first small claim proceeding under the new legislation to proceed to full hearing – applicant represented by an industrial advocate.

Fair Work Act 2009 (Cth)
Fair Work (Registered Organisations) Act (2009)
Federal Magistrates Act (1999)

Browne v Dunn (1894) 6 R 67 (HL)
Carr v Blade Repairs Australia (No.2) [2010] FCA 688
Jones v Dunkel (1959) 101 CLR 298
Maher v Mulgowie Fresh Proprietary Limited (2010) FCA 439

Applicant:

TERENCE JONES

Respondent:

GROOVY FREIGHTERS PTY LTD

File Number:

BRG 1011 of 2009

Judgment of:

Burnett FM

Hearing date:

20 July 2010

Date of Last Submission:

20 July 2010

Delivered at:

Brisbane

Delivered on:

3 August 2010

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant:

Advocacy & Industrial Advisory Services

Counsel for the Respondent:

Solicitors for the Respondent:

Quinn & Scattini

ORDERS

That the application filed 30 December 2009 be dismissed.
That any costs Application is to be made before 1 September 2010.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 1011 of 2009

TERENCE JONES

Applicant

And

GROOVY FREIGHTERS PTY LTD

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction

The applicant seeks relief for dismissal and contravention of a general protection on account of his temporary absence from work because of a back injury. The sum claimed in the application was $12,000.00, although as will be discussed later a higher figure was sought. At the outset I identified the matter as one which more properly was a small claim under the Fair Work Act (FW Act) because of its quantum; neither party demurred from that view and the application proceeded on that basis.

Legal Representation

This application appears to be the first small claim proceeding under the new legislation to proceed to full hearing. A number of issues arose along the way, particularly because the applicant was represented by an industrial advocate. Accordingly, it is appropriate that I set out in greater detail than might otherwise be expected some of the regulatory matters relevant to the application.
At the outset the respondents took issue with the appearance of a Mr Steinitz, an industrial advocate for the applicant. The respondent itself was a corporation represented by a solicitor, to which there was also objection.
Dealing first with that issue, Federal Magistrates Court rule 9.04 provides that:
“Except by or under an Act or regulations made under an Act with the leave of the court, a corporation may not start or carry on a proceeding otherwise than by a lawyer.”
In this instance there was no commencement of the proceeding, but there was clearly a carrying on of a proceeding from the perspective of the respondent. It follows that prima facie it must appear by a lawyer. Ordinarily that would not cause any difficulty. However, in the context of an application of this kind an issue arises because the application falls within the small claims provisions of the FW Act.
Section 548 of the FW Act deals with the small claims procedure. It provides proceedings are to be dealt with as a small claim proceeding under the section if a person applies for an order from a Federal Magistrates Court; the order relates to amount referred to in subsection 1A which is subsequently defined; and the person indicates in a manner prescribed by the regulations or by the rules of court that he or she wants the small claims procedure to apply in the proceedings.
Subsection 1A deals with the amounts to which the order relates and provides the amounts are as follows; an amount that the employer is required to pay to on behalf of an employee under the Act or a Fair Work instrument. Subsection 2 then provides the limit as being not more than $20,000.00. Subsection 5 provides that a party to a small claims proceeding may be represented in proceedings by a lawyer only with leave of the court. Subsection 6 then proceeds to provide if the court grants leave for a party to the proceedings to be represented by a lawyer, the court may consider it appropriate to do so subject to conditions designed to ensure that no party is unfairly disadvantaged. Subsection 7 says that for the purposes of this section a person is taken not to be represented by a lawyer if the lawyer is an employee or officer of the person.
Here the respondent’s solicitor strictly requires leave and I granted leave. In summary, I granted leave because:
(a) The respondent was a corporation.
(b)The respondent itself was the alter-ego of one Joanne Kennedy who from my observation was representative of a small business and in that regard not particularly capable in matters of this kind. That is law and advocacy.
(c)The field of industrial law is complex and the respondent can only usefully assist the court in this kind of dispute with legal assistance.
(d)The applicant was represented by an industrial advocate whom, at the time, I expected would at least have some knowledge of the basic principles and statutory framework applicable to industrial disputes.
As I have noted the applicant was represented in this instance by Mr Steinitz, who is an industrial advocate who claims over 40 years experience in the field of industrial relations and many years as an industrial advocate. His organisation is not registered under the Fair Work (Registered Organisations) Act, such that he would have the right of appearance by operation of section 353A of that Act. However, to assist the court I granted him leave to appear upon the basis that he would assist the court as a McKenzie’s friend.

Small Claim Proceeding

Generally, in relation to small claims I make the observations that consideration ought be given for these proceedings to be conducted on a delegated basis by a registrar because, as has been demonstrated by this claim, the conduct of these proceedings is extremely resource intense. Even with the best will in the world, these matters cannot be disposed of expeditiously when one has regard to the need to conduct proceedings in accordance with judicial standards which would include not only the conduct of a trial, albeit abbreviated as best can be by the non-application of the rules of evidence, but also with a need to deliver reasoned judgment dealing with the issues raised in the application.
That is obviously not what was necessarily intended by the small claims procedure. Commonly, small claims applications are conducted in the States by their tribunals rather than courts. They are called upon to determine these disputes in a manner which can be described as somewhat “quick and dirty” to provide the flexibility to dispose of such proceedings both informally and cost effectively. Notwithstanding that, any matter which was determined by a registrar would always be subject to a de novo hearing by way of review pursuant to s.104 Federal Magistrates Act in the event that parties were unhappy with such an expeditious and abbreviated process.
Dealing then with the application. As earlier noted, given it is a small claim, the court is not bound by the rules of evidence and procedure and may act in an informal manner and without regard to legal form and technicality. The evidence of each of the witnesses was largely confined to affidavits, significant parts of which were strictly inadmissible. However, because I am not bound by the rules of evidence they have been received in full.
For reasons that I identified to the parties during the course of the hearing, I have not acted and will not act upon unsubstantiated hearsay in respect of matters of significance in the dispute. Likewise, the conduct of the case on behalf of each of the applicant and the respondent gave rise to issues that would ordinarily allow for the drawing of various inferences in accordance with the rules in Browne v Dunn (1894) 6 R 67 (HL) and Jones v Dunkel (1959) 101 CLR 298. However by reason of the failings of both parties in that regard I have sought to adopt what could be described as a fair but pragmatic approach to the resolution of issues which were material when such issues arose from those omissions.

The Applicant’s Claim

Dealing then with the applicant’s case. On 1 August 2009 the applicant was employed by the respondent at its premises situated at Yatala. The applicant says he was employed as a store manager. While there was some dispute between the witnesses about the label attached to his job description, nothing turns upon that matter. The background to the actual engagement of the applicant is relevant to a number of issues that were in dispute between the parties. I will outline that background.
The respondent’s eponymous title suggests it conducts a freight depot from its premises. Until about August 2009 a company identified as RLA Polymers Proprietary Limited (RLA) conducted a similar operation from adjoining premises. RLA was a Melbourne based company and conducted its local distribution in South East Queensland from those adjoining Yatala premises. The applicant described himself as the local manager. The CEO of the respondent says from his inquiries that he believed the applicant was merely a storeman. Again, nothing turns on this.
The applicant, it would appear, had been employed in this capacity for about two years prior to these events. Importantly, RLA wished to close down the Yatala operation, but wanted someone to take on the function of its Yatala distribution business. This led to the initial contact between RLA and the respondent, and ultimately the respondent agreeing to take over RLAs Yatala operation. In doing so it did not take the applicant as part of the takeover. RLA retrenched the applicant.
However, the applicant was known to the respondent and its staff, and it appears that prior to these events, the subject of this dispute, he enjoyed a good relationship with its management and employees. Accordingly, it seemed logical that he be offered employment with the respondent following its absorption of the RLA business. The applicant swore that when his future employment was discussed and negotiated he says that the principal terms agreed were:
(a)     That he would be in charge of the warehouse;
(b)    He would work 37 and a half hours a week;
(c)     That his pay would be $750.00 gross per week; and
(d)    He would be subject to a one month probation period.
In addition he says that he discussed being permitted to take three days paid annual leave for 25, 28 and 29 September to attend a pre-arranged family memorial service in New Zealand.
There was some dispute about the terms of employment. In particular, there was dispute about whether or not there was a one month probation period, as contended by the applicant, or three months, as contended by the respondents. Further, there was dispute about whether he was employed casually at a rate of $20.00 per hour for 37 and a half hours a week, giving the $750.00 gross per week or whether he was employed on a permanent basis.
Evidence of the terms concerning the one month’s probation was given by the respondent’s managing director and sole director, Joanne Kennedy. It was, to be brutally frank, unsatisfactory on this point. Her evidence was expressed in wishful terms. She did not expressly state the term was three months, but rather she said, “Everyone was expected to sign a form of employment contract in those terms.” In the result nothing was signed. She maintained she asked the applicant on many occasions to bring the form of contract which he had been provided with and which presumably incorporated those terms, but none was ever brought in.
I am not satisfied as to the reliability of her evidence on this point. She could not possibly state the terms of the offer on this point and her view was premised upon a standard practice. When her evidence was eventually directed to the point, it was, in my view, unconvincing on that point. The applicant’s evidence was that one month’s probation was agreed upon. He said that the respondents knew him because of his employment with the takeover target, RLA. One would reasonably expect that they broadly knew him and had had an opportunity to work with him by reason of the pre-existing arrangement.
Accordingly the need for a lengthy probation period was not as pressing as might ordinarily have been the case. On that basis I am satisfied that a one month probation period was agreed upon. Likewise, the arrangement between the parties concerning whether the work was casual or permanent was unclear. The respondent, by Ms Kennedy, said that it, that is the respondent, intended casual employment, but nothing appears to have been formalised.
Clearly, procedures within the respondent’s organisation were sloppy and lacked form. For instance, it was not clear with whom the applicant formally contracted on behalf of the respondent. The applicant, however, had acknowledged that he had been employed on a casual basis by RLA, although clearly his employment had a quality of permanency, given that he had remained there for two and a half years before commencing his employment with the respondent following the takeover.
Significantly, however, at the time the applicant negotiated for employment with the respondent, he says he asked for a contract. He said in his evidence, Martin McDonald, that is another director of the respondent, told him he didn’t need a contract. The applicant appears to have acquiesced with that position. That situation infected all aspects of the relationship between the parties.
In my view, it did so because it reflected the status of the arrangements between the parties. That is, that the applicant was employed as a casual. On that basis, he did not require the full panoply of rights that accompanied permanent employment. The offer was predicated upon the status that the applicant had enjoyed as an employee of RLA and, consistent with its casual basis, the respondent would have foreseen little difficulty with a one-month probation period because it otherwise enjoyed significant flexibility with the applicant as a casual employee. I find that the offer was for employment as a casual employee.
The applicant’s employment ceased on 30 September 2009. That was outside the probation period, but inside the minimum period prima facie provided for under section 383. But notwithstanding the claim by the applicant, the claim was under the general protections provisions of the WR Act. The applicant says that he was in fact terminated because of his temporary absence from work because of illness or injury prescribed in the regulations. See regulation 6.04(2) which provides that the illness or injury is a prescribed injury if the employee provides a medical certificate.
While there was no evidence strictly proving the matter, it was sworn to by the applicant and not seriously challenged by the respondent that generally the applicant had a back condition. The applicant later required surgery for that condition. He says that he had been certified medically unfit from 7 to 25 September and the respondent was informed of this. I should note that the later surgery was well after relations between the applicant and the respondent had come to an end.
The applicant’s evidence on this point does, however, tend to gloss over the specific details. The respondent says that on 7 September it was notified that the applicant had injured his back in a boating accident over the weekend just past. Although that matter was denied, its causation is not entirely material to this case. It is clear that the applicant suffered a back injury and first reported it to the respondent on 7 September. The applicant says it related to the use of a forklift, the basis of which was never fully explained. Frankly, I particularly find it difficult to accept that the use of a piece of equipment such as a forklift might give rise to an injury, particularly in the absence of any medical evidence or other evidence to demonstrate causation in respect of that matter. It is perhaps more likely that if the applicant had a back disability it was exacerbated, but not caused, by the operation of a forklift; but it is a matter which was not properly canvassed by the parties or the evidence in the proceeding.
A medical certificate was faxed by the applicant’s wife through to the respondent on or after 7 September. It certified the applicant’s unfitness for work until 13 September. The applicant was expected to return to work on 14 September but did not present on that occasion. The evidence is that the applicant’s wife phoned again on 15 September stating that his back pain continued and that he wouldn’t be returning to work. No further certificate was received until the applicant returned to work on 30 September.
As I have noted, it is plain that the applicant had back difficulties. He said they had existed since his earlier employment with RLA. He said that RLA and the respondent both knew of these difficulties. He claimed the basis of this transfer of knowledge was said to be observations he thought members of those entities had made of difficulties that he had in operating some equipment, in particular, a forklift.
Ms Kennedy denied any knowledge of difficulties that the applicant says that he suffered with his back. Indeed, she says that she never would have employed him if she had been aware of any such difficulties, in particular because of the nature of the tasks that he would have been required to undertake, such as heavy lifting. For his part, the applicant says that he had suffered from back difficulties for some time dating back to his earlier employment with RLA.
As I have noted, the evidence on this issue is generally most unsatisfactory. No actual medical evidence was produced. The applicant made complaints that his difficulty pre-dated his employment with the respondent to that extent any causal relationship between his employment and symptoms was never clearly established and remained a vague assertion. A relationship was said to exist between the height of a new forklift purchased by the respondents and the applicant’s symptoms. Again, no evidence was adduced to demonstrate any causal link, nor temporal complaint.
While I make no finding on this point, I note forklifts are a commonly used piece of industrial equipment. They have been much refined over many years, and whilst nothing is impossible, it strikes me as difficult to conclude that the applicant suffered any work-related injury by operation of a forklift. It is more likely that any symptoms he experienced were a product of an organic or constitutional basis peculiar to the applicant, which may have lay manifest and been exacerbated when he sought to operate such equipment. In any event, suffice to say no evidence was adduced to demonstrate any causal link between the applicant and the operation of the forklift, and I am not satisfied that there was any occasion for the respondent to be aware of any such predisposition that the applicant had.
As I have noted, the respondent, in any event, through Ms Kennedy says that she was not aware of the applicant having a back injury. She was adamant that she would never had employed him for the sort of work that he was required to do had she known of it. There was no imperative upon the respondent to employ the applicant.
It follows that I reject the applicant on this point and prefer the evidence of Ms Kennedy. In my view, it accords with common sense. The applicant had a greater motivation to overstate his case. His advisor appears to have a less than satisfactory appreciation of his prospects, and in particular, the likely quantum. Perhaps in this case, by reason of these matters, the applicant here may have been influenced by some misinformation on those subjects.

Accordingly, I find that, prior to the applicant’s production of a medical certificate in mid-September, the respondent had no basis to know of, or be concerned that, the applicant had a back condition. What followed from the applicant’s time from work and back complaints only partly informs the decision made to terminate. First, the applicant only sent one certificate. That is, the certificate forwarded on or about 7 September. It was a certificate for a few days from work. It lacked specificity. However, the applicant did not return to work. Ostensibly, he required more time because of his back condition. However, in the meantime he was to travel to New Zealand for a pre-arranged family function. So much was known to the respondent. A later certificate was produced on 30 September. That is, after the applicant had returned or purported to return to work. The respondent, however, appears to have determined by that time to terminate his employment, and shortly after the applicant’s return to work his employment was terminated. That is, within hours of his return on 30 September. However, the respondent maintains that his termination was for other reasons.

The Respondent’s Response

The reasons advanced by the respondent for termination were as follows: first, the applicant’s no show after his absence with a back injury, and a belief on its part that he would not be returning to work; and second, unsatisfactory work performance, which was manifested by allegations of sexual harassment by the applicant of another employee; thirdly, by failure by the applicant to comply with office procedures; fourthly, non-performance of duties; and fifthly, poor attitude.
Dealing first with the back injury. I have already discussed the back injury in part. I do not find that the applicant was terminated as a result of the respondent not expecting his return to work because of his back injury. The respondent had been informed that he was injured. Though the injury was not work-related, the respondent was on notice of an injury. It also knew the applicant was going to New Zealand in late September. Given those two facts, I do not accept that the respondent simply formed the view that the applicant had decided to abandon his employment. If it did form that view, which I don’t accept, it was not a reasonable view to form.
One can appreciate the respondent found it little more than serendipitous that the applicant was fit enough to travel to New Zealand whilst ostensibly suffering a bad back. That view or conclusion may have been understandable, although not justifiable. However I do not accept that the respondent was justified in terminating the respondent’s employment on the basis of abandonment because of illness. However, for reasons that follow, I am not satisfied on the evidence that the applicant’s back injury was, indeed, the basis for termination.
The other grounds advanced by the respondent for wishing to terminate the applicant do, I think, provide the true insight to the respondent’s decision. For reasons which follow, I am satisfied that the applicant quickly proceeded to be a disappointment as an employee to the respondent.
First, difficulties arose between the applicant and another employee, Joan Johnson. She complained that the applicant made unwelcome sexual advances toward her. This included the applicant touching Ms Johnson on the backside. These advances were not welcomed, and she told the applicant so. She also complained to the respondent’s management.
The applicant denies that these events occurred. There is no room for ambiguity in this instance; someone is not telling the truth. In summary, I accept the evidence of Ms Johnson in preference to that of the applicant. Ms Johnson impressed me as a robust individual. She readily acknowledged she worked in a “blokey” environment, and that meant, to her, at least, she had to be more tolerant of matters that other women may find offensive.
Her personality and demeanour appears to have been coloured by her longstanding employment in that environment. She did not impress me as prissy or oversensitive. However, there is a line, and she says the applicant overstepped it. Her evidence was forthright and consistent with an appreciation of the work environment, no matter how unacceptable those matters might be seen by most other women. Further, she had nothing to gain by misstating her evidence in respect of these matters.
The applicant, on the other hand, has big expectations from this litigation. Based upon submissions made by his advocate, he expects a large payout, if successful. In addition, these matters have now come to the attention of his wife, a witness called in the case on his behalf. I doubt he would be able to explain the complaints made against him to his wife, and against that background, denial would be his best course. I was not impressed with his evidence on this point, and I reject it.
Another matter of complaint against him relates to a complaint he made against Joan Johnson. He complained that she swore inappropriately, and he was offended by that behaviour, and he didn’t want to work with her. It appears that following this complaint, a meeting was convened between the applicant and Martin McDonald to discuss this difficulty between Ms Johnson and the applicant. The meeting did not end well. It appears that Ms Johnson sought to interrupt the meeting between the applicant and Mr McDonald for a legitimate purpose, but in response to the interruption, the applicant made offensive remarks.
I accept this occurred. Following that interruption, Mr McDonald terminated the meeting, indicating that, in a sense, he had difficulty taking the applicant’s complaint seriously, having regard to his coarse and inappropriate remarks made in response to Ms Johnson’s interruption.
Mr Steinitz for the applicant, asked that I draw a Jones v Dunkel inference from the respondent’s failure to call Mr McDonald. However, as it earlier noted, this case is resplendent with omissions on both sides of the record in applying both the principle in Browne v Dunn and Jones v Dunkel. In any event, I am satisfied, generally, of the reliability of the evidence of Ms Johnson, and on that basis, I am content to rely upon it without it being reinforced by another witness and I will not draw any adverse influence because of the failure to call a witness.
A further instance of the applicant’s poor attitude was evident following an incident between the applicant and Nathan McDonald. Nathan McDonald is Mr McDonald’s son. A complaint was made by him, that is, Mr Nathan McDonald, that the applicant said to him words to the effect he – that is, the applicant – “was going to punch McDonald’s head in” and “he had no balls and was weak as piss.” This followed an alleged failure by the applicant to follow group processes, as discussed below.
The applicant’s position was this statement was never made. He denied the allegations. I prefer the evidence of Nathan McDonald on this matter. He was simply, in my view, more believable. The applicant says that he was never aware of any complaint of itself that could have given rise to the situation. On this point, I consider the applicant is simply in denial. It follows that his response to that circumstance arising is a continuum of that denial.
This earlier circumstance arose from an alleged noncompliance with office procedure. The respondent had an office in Melbourne. The respondent says that as a matter of procedure, if it had any complaints, they were to be addressed by the local office; that is, in this case, Brisbane.
The applicant denied these allegations, saying he did not recall any complaints about him speaking with the respondent’s Melbourne office. However, he admitted in cross-examination that he had had a few complaints with the Melbourne office. Until the takeover, he had worked for a Melbourne-based company.
I think he probably did contact the respondent’s Melbourne office, but more out of habit than as an instance of defiance. However, that was in breach of the respondent’s internal policy, and in my view, his response to being checked in relation to those matters ultimately resulted in his inappropriate attitude and expressions towards Nathan McDonald.
Finally, there were complaints about his refusal to use a forklift.
Generally these events occurred over a very short time after the applicant had commenced with the respondent, and particularly, the difficulty between Ms Johnson and the applicant. Ms Johnson was a longstanding employee whom I expect the respondent wishes to retain. Plainly, in the circumstances, the respondent wanted to terminate the applicant, who had demonstrated himself to be a poor fit for its organisation.
I do not accept that his unrelated back condition was material to the decision to terminate. It simply happened that by reason of that matter, the respondent was delayed in doing that which was clearly becoming inevitable because of the applicant’s poor fit; that is, its intention to terminate the applicant.

The Legal Basis for Claim

At the outset, the applicant claimed under the FW Act alleging a dismissal in contravention of a general protection. The applicant has a section 369 certificate. However, there is some little history.
The applicant’s initial application was made pursuant to section 773, alleging he was dismissed in contravention of section 772(1)(a). The application was amended at the conference before Fair Work Australia and was accepted as a complaint pursuant to section 365. Accordingly, a section 369 certificate issued. So much appears evident from correspondence which is attached to form 2 in the application. I note from the correspondence that there were a number of matters said to have been agreed following that conference. However, notwithstanding those matters, I note that the correspondence itself is correspondence addressed by an associate to the senior deputy Registrar. It is not of itself a certificate.
The material document enlivening the Court’s jurisdiction is the certificate under section 369. It follows that in statutory terms the applicant has advanced a claim under section 351 and/or 352. Section 351 provides an employer must not take adverse action against a person who is an employee because of the person’s physical disability; section 352 provides an employer must not dismiss and employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
Pursuant to section 365 a complaint was made to Fair Work Australia. As I have earlier noted, it was originally pursuant to section 773 and 772(1)(a), but it was subsequently amended. It was subject to conciliation by Fair Work Australia, but the conciliation was unsuccessful and, consequently, the section 369 certificate was issued. Section 371 permits a person subject to a general protections claim to make a court application under section 369 once the certificate is issued. It is only that complaint which the Court has jurisdiction to determine. Fair Work Australia has certified only for a general protection claim, not an unlawful termination complaint. It follows that the Court can only consider the complaint in respect of which its jurisdiction is enlivened. The approach to be adopted is explained in Maher v Mulgowie Fresh Proprietary Limited (2010) FCA 439, commencing at 11, where Collier J noted:
“It is common ground in this matter that at all relevant times Mulgowie was a national systems employer within the meaning of s 13 of the Act and that Mr Maher was a national systems employee within the meaning of s 14 of the Act. Accordingly Mr Maher was entitled to make an application to Fair Work Australia under the general protection provisions of Pt 3-1 of the Act, and in particular pursuant to s 365 which 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 FWA for FWA to deal with the dispute.
12.    Because of his status as a national systems employee, the legislative provision relevant to Mr Maher’s complaint was actually s 351 which provides:
An employer must not take adverse action against a person who is an employee, a prospective employee, of the employer because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction, or social origin. (emphasis added)
13.    For the purposes of s 351, “adverse action” includes dismissal of an employee: s 342.
14.    In my view there is no doubt that Mr Maher should have relied on Pt 3-1 of the Act in respect of his claim against Mulgowie. Part 3-1 of the Act sets out a range of workplace protections in respect of national systems employers and employees contemplated by the Act, and is a key part of the Act in respect of the prevention of discrimination and other unfair treatment of such employees (cf para 1333 and para 1334 of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth)). In contrast, it is clear from s 769 that the provisions of Pt 6-4 of the Act, which include s 772 and s 773, give effect, or further effect, to certain international agreements relating to discrimination and termination of employment. The distinction between the application of Pt 3-1 and Pt 6-4 is explained by para 1342 of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) as follows:
Part 3-1 does not rely on the external affairs power in the Constitution in the same way as the existing unlawful termination protections (which apply to all employees in Australia). To maintain existing protections, Division 2 of Part 6-4 provides for unlawful termination protections for employees who do not have a remedy under this Part. This ensures that every employee in Australia has a remedy for unlawful termination.
15.    Accordingly, an individual employee must look to s 723 of the Act to identify the relevant Part of the Act which provides that employee with protection. National systems employees, such as Mr Maher, are required to commence proceedings under Pt 3-1.”
Here, Fair Work Australia put the applicant on the correct path early. Equally, his rights are limited to that part of the FW Act the subject of the certificate. The respondent contends a certificate issued by Fair Work Australia pursuant to section 369, and therefore the application pursuant to section 772(1)(a), is not valid. The basis for that contention appears in response to the applicant’s reliance upon the undated facsimile from Fair Work Australia directed to the applicant under the hand of the associate to Richards DP. In that regard it is contrary to the certificate, which is clear in its expression. The certificate provides:
“An application pursuant to s.773 of the Fair Work Act 2009 (the FW Act) was made by Mr Terance Jones alleging was dismissed by Groovy Freighters Pty Ltd in contravention of s. 772(1)(a) of the FW Act.
A conciliation conference was held on 16 November 2009. At the conciliation conference, the Application was amended and accepted as a complaint pursuant to s. 365 of the FW Act.
Pursuant to s. 369 of the Act, Fair Work Australia certifies that it is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.”
The material which was before Fair Work Australia is not before the Court. It seems the original application did not seek the correct relief. However, it was amended, and section 365 permits the application to be brought pursuant to the FW Act before the Court. Although the original application may have sought the wrong relief, Fair Work Australia acceded to an application to amend it to thereby enliven its jurisdiction. The section 368 conference was unsuccessful and the section 369 certificate issued. Prima facie the applicant had a right to commence proceedings pursuant to section 371.
In the circumstances, the framing of the application in this instance as a general protections application is significant and warrants some explanation. Need for explanation is, I feel, required because of the manner in which the applicant initially sough to proceed. Initially he seized upon the alleged unlawful dismissal provisions applicable to individual employees as provided for in Part 6-4 of the Act. These are the ILO Convention provisions. As a national systems employee and employer, this approach was clearly inapposite. Nor did he seek to pursue remedies under Part 3-2, that is, the unfair dismissal provisions. More accurately, he impliedly accepted that those provisions did not apply, because he acquiesced to Fair Work Australia’s characterisation of his claim.
The applicant had not been with the respondent for greater than six months, and accordingly he could not have brought an unfair dismissal claim, despite being a national system employee. That left the general protections claim identified for him by Fair Work Australia. In my finding, as earlier discussed, he was not dismissed because of any physical disability. There was, in my finding, no contravention of section 351.
He was, however, temporarily absent from work because of an illness of the kind prescribed by regulations shortly before his termination. Although the evidence of Ms Kennedy was that she believed he had abandoned his employment, as I have earlier determined, I do not accept that assessment. While I am satisfied that the respondent wanted to terminate the applicant because of the matters I have earlier found, that is, inter-staff difficulties, poor attitude and performance, it is apparent to me that the applicant’s temporary absence was seized upon by the respondent as an opportunity to terminate.
No doubt the respondent was further encouraged to terminate at this time because the applicant was to its knowledge travelling to New Zealand at a time when he complained to be suffering the symptoms of a back injury warranting time from work. No doubt a matter that clearly aroused the respondent’s suspicion as to whether or not he had indeed an injury or illness.

Respondent’s Reversal of Onus

However, despite the presence of those factors, I’m not satisfied that as a matter of fact the applicant was dismissed because of a temporary absence from work because of illness or injury. It may have been the fact that the applicant did not indeed suffer from a back disability but I do not consider that matter was a factor in the respondent’s decision to terminate the applicant’s employment. The significance of this finding is in section 361. Relevantly, it provides:
“If in an application in relation to a contravention of this part, it is alleged that a person took or is taking action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this part, it is presumed in proceedings raised from the application that the action was or is being taken for that reason or that intent unless the person proves otherwise.”
In my view the respondent has satisfied the onus cast upon it to demonstrate that the intention behind its termination of the applicant was not a matter prescribed by either section 351 or 352.
There was no contravention of section 352 in its termination of the applicant. As a casual employee, the applicant was not entitled to notice pursuant to section 117:123(1)(c). On my finding his termination was not in contravention of the FW Act.

Quantum

In the event that I am in error in my findings, (a) that the applicant was employed on a casual basis; or (b) that he was terminated in contravention of the general protections, I make the following observations in respect of quantum.

If he were not a casual he would have been entitled to one weeks’ notice, see section 117. In this case a sum of $750.00 would have been payable in lieu. If the applicant had been terminated in contravention of a general protection provision, the contravention would have given rise to a civil remedy penalty. In that context the court may order that a penalty imposed or part of it be paid to an individual: see section 546(3)(c) FW Act.
In that event, there is a question of the quantum that might be awarded in respect of such penalty. No cap appears generally because, in this instance, the applicant was not a person protected from unfair dismissal or unlawful dismissal.
He would also have had a contractual entitlement: see the observations in Carr v Blade Repairs Australia (No.2) [2010] FCA 688.
He seeks damages by way of loss of income from 30 September 2009 to date at a rate of $750.00 per week or 45 weeks times $750.00, giving a sum of $33,750.00.
I have not been able to find that there was any causal link between the applicant’s back condition and his employment with the respondent. In the event the respondent had chosen to terminate the applicant for an improper reason, then as a matter of contract, the applicant’s damages would have been no greater than those he would have suffered in any event, because he was a casual employee who could be terminated without notice.
Even if he was not a casual employee, and he was a permanent employee he was then only entitled to one week’s notice. However either circumstance would have given rise to a contravention in respect of which I would have been required to assess the appropriate penalty. If so, I would have assessed the penalty at the quantum of his contractual remedies. That is one week’s pay and direct that it be paid to the applicant.

Conclusion

In conclusion, I have come to the view, on the evidence, that the applicant was terminated for reasons unrelated to his temporary absence from work on account of an alleged injury, and I have come to the view that he was not terminated because of any physical injury. I have come to the view that he was terminated because of poor conduct and poor performance and it follows his application is dismissed.

Costs

One party made an application for costs. Perhaps I can indicate that in my view these sorts of applications, except in the most exceptional cases, do not call for the exercise of the discretion to order costs. I will make no order as to costs unless any party wants to be heard on that matter.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Burnett FM

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