Julia Cochrane v Tilers Trade Outlet (Vic) Pty Ltd T/A Tilers Trade Outlet (Vic) Pty Ltd

Case •

[2023] FWC 2071

•

18 AUGUST 2023
[2023] FWC 2071

FAIR WORK COMMISSION
REASONS FOR DECISION

Fair Work Act 2009

s.365—General protections

Julia Cochrane
v

Tilers Trade Outlet (Vic) Pty Ltd T/A Tilers Trade Outlet (Vic) Pty Ltd

(C2023/2548)

COMMISSIONER MATHESON

SYDNEY, 18 AUGUST 2023

Application to deal with contraventions involving dismissal – objection raised - whether application made pursuant to s.365

Background

  1. The Fair Work Commission (Commission) approves and makes publicly available forms that can be completed by parties to deal with the various matters falling within its jurisdiction. One of these forms is a ‘Form F8 ‘– General protections application involving dismissal’. On 5 May 2023 Ms Julia Cochrane (Applicant) lodged one of these forms with the Commission. On 8 May 2023 the Applicant lodged an updated form (Form F8). The Applicant named Tilers Trade Outlet (Vic) Pty Ltd (Respondent) as the Respondent employer in the Form F8.

  1. On 19 May 2023 the Respondent filed a Form F8A in response to the Form F8 raising an objection to the application stating:

The Applicant is required to please the material facts in support of the assertion that the Respondent has contravened sections 340, 343, 344 and 351 of the Act (as stated in Azad v Hammond Park Family Practice Pty Ltd t/as Jupiter Health Warnbro (2022) FWCFB 66).

FWC power to deal with a dispute under section 368 is only enlivened if an application is properly made under section 365 of the Act (as stated in Coles Supply Chain v Milford (2020) FCAFC 152),

The Applicant has not pleaded any material facts and the application should be dismissed under s587 of the Act.

  1. On 29 May 2023 the Commission wrote to the parties informing them that the application was to proceed to a conference before a Commission conciliator. The conference was not able to proceed as the Respondent pressed that its objection needed to be determined and the matter was subsequently allocated to my Chambers to deal with.

  1. On 15 June 2023 the Applicant’s representative sent correspondence to the Commission’s Registry (Annexure A) asking it to accept that correspondence as Annexure A to the Form F8 Filed by the Applicant on 8 May 2023.

Submissions

  1. A case management conference was held on 19 July 2023 and directions set down for the filing of submissions and a date for hearing set. At the conference the Applicant’s representative indicated that it did not wish to file written submissions.

  1. On 25 July 2023 the Respondent filed with my Chambers written submissions and a statement of Lyndon Burke, solicitor for the Respondent. The Respondent provided a further email to my Chambers on 25 July 2023 including links to authorities. By way of summary, the Respondent’s submissions were that:

  • The Applicant’s original application is entirely unparticularised and does not set out the basis for general protections claim. The form describes a breach of section 340, section 343, section 344 and section 351 of the Fair Work Act 2009 (Cth)(Act).
  • There is no basis for a conclusion that the adverse action took place because of a prohibited reason and the Applicant specifically contends that there is no prohibited reason stating a 3.3 of the Form F8 that “I believe I have been discriminated against for no good reason….I believe that none of this makes any sense and, could there be an ulterior motive for letting me go?...”
  • The determination of an objection will come down to the examination of s.365 which requires an allegation that the person was dismissed in contravention of the Part 3-1 of the Act before they may apply to the Commission.
  • On an ordinary reading of s.365 it is necessary to conclude that there is an allegation that the person was dismissed in contravention of Part 3-1 of the Act and there is no such allegation other than the Applicant ticking the boxes that refer to the various sections.
  • The Applicant believed she had been unfairly dismissed, was unable to run an unfair dismissal case because she had not ‘passed her qualifying period’ and instead began a general protections case.
  • The case is no more than a disguised unfair dismissal case and should be dismissed.

  1. In its submissions of 25 July 2023, the Respondent submitted that there was never any jurisdiction to deal with the application and it cannot be amended. I have not dealt with the application to amend in my reasons for decision below which are concerned only with the unamended Form F8 filed on 8 May 2023.

Hearing

  1. A hearing was held to determine the matter on 26 July 2023. Both parties sought permission to be represented by lawyers and, having regard to the novel nature of the objection raised by the Respondent and the complexity it gave rise to I determined that it would enable the matter to be dealt with more efficiently if permission to be represented by a lawyer was granted to both parties. I therefore granted the parties permission to be represented pursuant to s.596(2)(a) of the Act. The Applicant was represented by Mr M. Kriewaldt and the Respondent was represented by Mr I Latham of counsel, instructed by Mr L. Burke.

  1. During the hearing I indicated to the Respondent that I had read its submissions and the Respondent indicated that in its oral submissions it wished to focus on some ‘salient points’.

  1. In this regard the Respondent submitted:

  • The law in relation to general protections applications has changed since the case in Coles Supply Chain v Milford[1]and there are two conditions thar are required to be fulfilled before a person can make general protections claim. Firstly, they need to prove they have been dismissed and secondly they need to prove there is an allegation that the dismissal is on contravention of Part 3-1 and unless both of those things have occurred there is no jurisdiction to deal with it.
  • The application lodged by the Applicant is about unfair dismissal and not about general protections. In this regard the Respondent pointed to comments made by the Applicant in the Form F8 end earlier version filed including:
    • 3.1 of the Form F8 where there are comments about meetings that take place and termination.
    • 3.3 of the Form F8 where the Applicant says she believes she had been “discriminated against for no good reason”, makes comments about not receiving an explanation for termination, makes comment about Kate Guardiano having a belief that “an unfair dismissal application could insure. From this I presume she was aware that it was unfair”;
    • the outcome that the Applicant is seeking, with one of those being that “The company and the director be held liable for terminating my employment without just cause”;
    • a comment made by the Applicant in the Form F8 stating “There is no valid reason to terminate me”;
    • the Applicant’s statement that “I believe none of this makes any sense and, could there be an ulterior motive for letting me go” which does not reference any prohibited reason;
    • the Applicant’s comments in reference to Kate Guardiano, “I presume she was award that it constituted unfairness…”
    • the Applicant’s comment “I point out here that I have not been issued any warnings…”
    • the Applicant’s statement “Wednesday 3 May 2023 at approximately 9am, I was termination (sic) without any warning or suitable explanation”;
    • the signing page of the Form F8 where the Applicant identifies her capacity or position as “Unjustly Terminated Employee”.
  • There is no application at all that sets out an allegation at all that the Applicant has been dismissed in breach of the general protections provisions and therefore there is no application.
  • The Respondent also reiterated that if there is no application, there is no capacity to amend it.

  1. In response the Applicant submitted there are two questions being:

  1. Whether the Applicant’s Form F8 was sufficient to meet the requirements of s.365 of the Act

  2. Whether the Commission should and can amend the application to attach Annexure A.

  1. The Applicant submitted that the answer to both these questions should be answered in the affirmative and that if the first question is answered in the affirmative the second question would effectively be rendered otiose.

  1. The Applicant agreed that answer to the first question comes down to the construction of s.365 of the Act and that it is reasonable to conclude from reading s.365 that an allegation that a person was dismissed I contravention of Part 3-1 is required. The Applicant pointed to question 3.2 of the Form F8 which asks:

“Which section(s) of the Fair Work Act 2009 did the employer contravene when they took, threatened or organised the above actions against you?”

  1. The Applicant noted that in response to this question, the Applicant ticked, among others, s.340 Protection and s.351 Discrimination and that she had also identified dismissal in the previous question. The Applicant submitted that it is the ticking of those boxes that is the sole requirement to make the allegation such that the requirement under s.365 is met. The Applicant submitted that the application was made on a form as provided for in the Fair Work Commission Rules 2013 and she complied with those requirements.

  1. The Applicant noted that it was unclear from the Respondent’s submission what it says is the minimum required to make an allegation within the meaning of s.365. The Applicant submitted that where the response to question 3.2 was completed, this is an allegation and there is no requirement for a party to repeat that allegation. The Applicant submitted this outcome would not make any sense and would render the questions in the Form F8 otiose and would to some extent make the form misleading where an unrepresented litigant believes they are making the allegation by following the prompts in the form and then has a Respondent object because the Applicant didn’t repeat the allegation that was made when the boxes were ticked.

  1. The Applicant also pointed to the Respondent’s F8A in which it suggested that the Applicant was required to “plead the material facts” to make a valid application. The Applicant submitted that the Fair Work Commission is not a court of pleadings and s.365 requires no such thing, only that an allegation be made. The Applicant also submitted that the authority the Respondent relies on for that proposition (being Azad v Hammond Park Family Practice Pty Ltd t/as Jupiter Health Warnbro[2] made no such reference to pleadings or material facts and was a case concerning jurisdictional facts, none of which are at issue in the current matter. The Applicant noted from the Respondent’s written submissions that it was unclear as to whether the Respondent was pressing its submission that an Applicant is required to plead all the material facts and it is unclear what the Respondent says is the minimum required to be able to make an allegation.

  1. The Applicant agreed that the effect of Coles Supply Chain v Milford[3] is that the Commission needs to determine jurisdictional objections at this stage however submitted that it did not see that the objection raised by the Respondent as being a jurisdictional objection because the Form F8 is drafted in such a way that if you follow the prompts, it makes the allegation for an applicant such that an allegation is made under s.365.

  1. The Applicant submitted that if a finding was made that an Applicant has to restate the allegation made by ticking the box or to plead all the material facts to a court standard, it would render thousands of Form F8 applications as invalid. The Applicant submitted that self-represented litigants struggle at the filing stage, and it would be a manifestly unjust conclusion to draw.

  1. The Applicant submitted that paragraphs 5 and onward in the Respondent’s submission don’t really address the argument about whether an application is validly made and are essentially arguments on the merits of the general protections claim, arguing that it is a disguised unfair dismissal claim and should be dismissed. The Applicant submitted that the use of the term “disguised unfair dismissal case” is somewhat ironic given the objection made.

  1. The Applicant noted that s.587 of the Act sets out the Commission's powers to dismiss applications with s.587(2) stating:

(2)Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

(a)   is frivolous or vexatious; or

(b)   has no reasonable prospects of success.

  1. The Applicant submitted that the objection articulated in paragraphs 5 and 6 of the Respondent’s submissions is essentially an application to have the Applicant’s Form F8 dismissed on the basis that it has no reasonable prospects of success disguised as a jurisdictional objection. The Applicant submitted that the Commission is prevented from doing so due to s.587.

  1. The Applicant further submitted that s.577 of the Act requires that the Commission perform its functions in a manner that “avoids unnecessary technicalities” and that the Respondent is attempting to prevent the Applicant from being able to attain a certificate to be able to prosecute her case in a court. The Applicant submitted that the Respondent’s interpretation is not consistent with the obligations in s.577 of the Act.

  1. The Applicant submitted that the objection should be dismissed, and a certificate issued.

  1. The Respondent submitted that the Applicant’s arguments are arguments of form over substance and that if the Applicant’s submissions were accepted it would mean that if an Applicant ticked one of the boxes on the form, even though there is a part left to actually set out the allegations, it would still be seen as a valid application under the Act which would be absurd and the Commission has  made decisions in relation to this and have said that ticking those boxes is not binding upon the applicant. The Respondent submitted that one has to look at the application as a whole.

  1. The Respondent referred to the matter of Dr Tareq Abu-Izneid v Charles Darwin University[4], an authority the Applicant provided to the Commission, and paragraph 13 of that decision in which the Full Bench stated:

[13] It will be seen from the above that an issue arises as to the proper treatment of the application and the consequential availability of the powers to dismiss the matter. The application did not exclusively rely on either s.372 or s.365. However the information on the application was inconsistent. The grounds suggested that a termination of employment had occurred, yet the applicant’s solicitor ticked “no” in answer to the question “Did the alleged contravention involve the dismissal of the applicant?” The Commissioner noted that the file was processed as a s.372 matter but acknowledged that at the time of the application it was apparent that Mr Abu-Iznied had been dismissed. Yet the Commissioner dismissed the application on a ground that is not available for applications made under s.365 of the Act regarding contraventions that involve dismissal.

  1. The Respondent noted that in that matter the Applicant’s solicitor ticked a box answering ‘No’ to the question as to whether the Applicant was dismissed but that the Commission said that the entire application needed to be looked at to determined whether it was one that involves dismissal or one that does not. The Respondent went on to submit that if the Applicant’s application is considered as a whole that the Applicant’s case is one about dismissal and not general protections and in none of the other boxes on the Form F8 is there any reference at all to a dismissal for any of the prohibited reasons set out or for any of the general protections set out.

  1. In relation to s.587 of the Act, the Respondent submitted that this section is concerned with summary dismissal of an application whereby the Commission can bring proceedings to an end at an early stage without hearing all the material which is an entirely different case to saying that the Commission doesn’t have the jurisdiction to deal with the matter.

  1. In clarifying its position in relation to the Respondent’s Form F8 and its submission about the requirement to “plead the material facts” the Respondent clarified that it does not submit that it is necessary to plead every material fact. However the Respondent submitted that the Applicant is required to ‘plead’, if that term is used in a generic sense, or ‘allege’, that the Applicant was dismissed in contravention of a general protections provision and that this has not happened.

  1. In relation to Azad v Hammond Park Family Practice Pty Ltd t/as Jupiter Health Warnbro[5] the Respondent submitted that it does say, at paragraph 12, that the proper making of an application under s.365 is an essential precondition of the Commission’s performance of functions under s.368 and that’s the gravamen of the Respondent’s objection.

  1. I clarified with the Respondent that it submits there is no correlation with the boxes ticked at question 3.2 of the Form F8 and the Applicant’s response to question 3.3 of the Form F8 which asks:

“3.3.Explain how the actions you have described in question 3.1 have contravened the section(s) of the Fair Work Act 2009 you identified in question 3.2.”

  1. The Respondent submitted that the responses to these questions are entirely contradictory.

  1. In response the Applicant’s representative submitted that as an unrepresented litigant the Applicant may have been using the words “unfair dismissal” in a “moral sense” and that a dismissal that an unlawful dismissal may seem “unfair” to the Applicant.

  1. In response the Applicant’s representative submitted that as an unrepresented litigant the Applicant may have been using the words “unfair dismissal” in a “moral sense” and that a dismissal that an unlawful dismissal may seem “unfair” to the Applicant.

  1. The Applicant also referred to Dr Tareq Abu-Izneid v Charles Darwin University[6], [7] which states at paragraph 15.

“[15]Further, in our view, in the light of the circumstances disclosed in the application and the concessions  made by  the  employer,  the  Commissioner should  have ascertained the appropriate basis for  the  application  and  provided  an  opportunity to  the  applicant or  his solicitor to clarify their intent…”.

  1. The Applicant submitted that the Applicant did clarify her intent by letter in open correspondence. The Applicant’s representative submitted that in terms of the application filed, the Applicant may not have understood the law, it was her first time in the Commission and she was trying to learn a number of concepts.  It was submitted by the Applicant’s representative that upon receiving instructions and discussing the claims available to the Applicant, the Applicant’s representative clarified what the claim was and sent it to the Respondent and Commission. The Applicant submitted that there should not be any confusion as to what the claim is. The Applicant also submitted that there are a number of unfortunate references to valid reason and unfair dismissal in the Form F8 because the Applicant did not fully understand the claim she was making but that was addressed in the correspondence to the Commission saying exactly what the claim was.

  1. The Respondent suggested that the Applicant’s submissions in this regard is “basically an admission that the Applicant did not made a valid application because she did not fully understand the law” and that this is not an exception to the jurisdictional prerequisites under s.365 and on the basis of that admission alone the Commission should reject the application.

  1. The Applicant submitted in that the jurisdictional prerequisite is solely to make the allegation and that in “ticking the box” the Applicant made the allegation and any other conclusion to the effect that she was required to do anything further than that would essentially have the effect that countless applications would be rendered invalid because someone has not fully understood what they’ve had to plead in the form.

Findings and reasons

  1. During the hearing on 26 July 2023, I confirmed with the parties that in the event that I found that the Commission did have the jurisdiction to hold a conference that they would be willing to participate in a conference after I made my decision. In order to save the parties further cost and inconvenience of potentially having to return to the Commission for a further conference, I took a brief adjournment so I could further consider the materials and submissions made by the parties and make a decision about jurisdiction. Having done so, I decided that the Respondent’s objection should be dismissed and that a conference should proceed. My reasons, as communicated to the parties on 26 July 2023 are set out below.

  1. I will firstly deal with the Respondent’s Form F8A response to the general protections application.  Question 2.1 of that Form F8A asks:

“Does the Respondent have any jurisdictional or other objection(s) to the application”.

to which the Respondent has answered “Yes”.

  1. Question 2.2 of the Form F8A asks:

“If you answered yes to question 2.1 – on what basis does the Respondent object?...”.

  1. In the Form F8A the Respondent goes on explain that it objects because:

“The Applicant is required to plead the material facts in support of the assertion that the Respondent has contravened sections 340, 343, 343 and 352 of the Act as stated in Azad v Hammond Park Family Practice Pty Ltd t/as Jupiter Health Warnbro (2022) FWCFB 66”.

  1. Based on the submissions of the Respondent during the hearing and as filed, I understand that the Respondent is not pressing this argument but rather is suggesting that the key issue for determination is whether in, accordance with section 365(b) of the Act, the Applicant has alleged she was dismissed in contravention of Part 3-1 of the Act. In this regard, the Respondent submits that the Form F8 application completed by the Applicant makes no such allegation.

  1. However, for completeness I have considered the decision in Azad v Hammond Park Family Practice Pty Ltd t/as Jupiter Health Warnbro[8] and note the jurisdictional objection raised in that matter was that the person claiming the relief was not an employee of the respondent and therefore was not dismissed pursuant to s.386 of the Act. It wasn’t turning to what facts were pleaded in a document filed with the Commission, whether they were material or not and whether this has a bearing on whether an application has been made.

  1. I do however accept the Respondent’s submission as stated in the Form F8A and in its further submissions that the Commission’s “power to deal with a dispute under section 368 is only enlivened if an application is properly made under section 365 of the Act as stated in Coles Supply Chain v Milford (2020) FCAFC 152”.

  1. The Full Court in Coles Supply Chain v Milford[9]found that for an application to be made under s.365 it must be made by a person described in s.365, it must be made within the time prescribed under s.366(1) and that the opening phrase in s.368, “if an application has been made under s.365” incorporates both concepts. The Full Court went on to say that the words create an essential pre-condition to the Commission’s authority to perform both its conciliation function and its associated power to issue a certificate under s.368(3).

  1. I have considered the decision of the Full Court Coles Supply Chain v Milford[10]and the wording of s.365 of the Act. I accept that the structure of s.365 (a) is such that for an application to be made, the person making the application needs to have been dismissed as a matter of fact. In this regard, it is not in contention that the Applicant was dismissed.

  1. Section 365(b) then requires that ‘the person, alleges that they were dismissed in contravention of Part 3-1 of the Act.’ The Respondent submits no such allegation has been made and the fact that the Applicant has ticked the boxes that refer to the various sections of the Act in response to question 3.2 of the Form F8 is not enough. The Respondent has pointed to terminology used at various places elsewhere within the Form F8 including but not limited to ‘terminating employment without just cause’, a reference to ‘unfairness’, a reference to ‘termination without any warning’ and the Applicant identifying her capacity as an ‘unjustly terminated employee’ and suggests that this should lead the Commission to a conclusion that there is no allegation of a contravention of Part 3-1 but that rather, the application has the character of an unfair dismissal application in disguise.

  1. By way of summary, the Applicant points out that the application was made by a self-represented person who may not have fully understood the legislative framework but submits that in ticking the boxes at question 3.2 of the Form F8 the allegation of a contravention of Part 3-1 has been made, that the questions in the Form F8 elicit the allegation in that form and that notwithstanding the further text that the applicant has included in the Form F8 which may turn to notions of unfairness, this does not mean that the allegation of a contravention of Part 3-1 has not been made. I also understand the Applicant to be saying that once question 3.2 has been completed there is no need to repeat what the Applicant says is an allegation made in responding to other parts of the Form F8.

  1. I have considered the Form F8 filed by the Applicant. Both parties took me to this signed document dated 8 May 2023. On page 1 of the Form F8 the text appears “This is an application for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal under Part 3-1 of the Fair Work Act 2009”. Statements by the Applicant in that Form F8 suggest that she knew that she was ineligible to bring an unfair dismissal claim because the minimum employment period had not been satisfied but this does not mean that an application in an alternative jurisdiction cannot be made. Indeed, that the Applicant knew she could not make an unfair dismissal claim suggests that a general protections application is what was she intended.

  1. At section 3.1 of the Form F8 the Applicant sets out a timeline of events the Applicant says occurred in the lead up to and around the time her dismissal. In the Form F8, question 3.2 asks “which sections of the Fair Work Act did the employer contravene when they took, threatened or organised the above actions against you”. In response to this question, the Applicant has ticked a number of boxes on the form including those next to sections 340, 343, 344 and 351. The Applicant has also completed other parts of the Form F8.

  1. At paragraph 2 of the Respondent’s submissions the Respondent states:

“There is no basis for a conclusion that the adverse action took place for a prohibited reason” and that the applicant specifically contends that there is no prohibited reason, stating in response to question 3.3 that “I believe I have been discriminated against for no good reason… I believe that none of this makes any sense and, could there be an ulterior motive for letting me go?”

  1. In this regard, I consider the Respondent’s submission turns to merits rather than jurisdiction. Question 3.3. of the Application, in essence, invites a further explanation about the contraventions alleged. At question 3.3 the Applicant refers to, among other things, the Applicant’s belief she has been discriminated against and that there is no “good” reason for this and posits that there may be an “ulterior motive” for the dismissal. If this matter ultimately ends up before a court of competent jurisdiction or the Commission on the basis of agreement, questions about the further assertions and their relevance to the allegations made would need to be dealt with at that juncture.

  1. I would also observe that it is common for parties to make reference to matters in applications that may not all be of direct or apparent relevance to an application at first blush, including statements about how they have perceived their circumstances, especially in the case of self-represented parties. It is also the case that self-represented parties may not express their concerns in the most elegant way or in the manner that an experienced legal practitioner would be accustomed to presenting legal arguments.

  1. However, question 3.2 of the Form F8 expressly asked “which sections of the Fair Work Act did the employer contravene when they took, threatened or organised the above actions against you”. The Applicant has answered this question and in doing so, I consider that she has, in effect alleged that she was dismissed in contravention of Part 3.1. There is no further stipulation in s.365 that the allegation needs to be made or particularised in a certain way.

  1. The fact of the Applicant’s dismissal and that the applicant alleges she was dismissed in contravention of Part 3-1 means that the requirements in s.365 have been met and pursuant to s.368 of the Act, that means that the Commission must deal with the dispute other than by arbitration. Having made my determination, I dismissed the Respondent’s objection and proceeded to deal with the application as required by s. 368.


COMMISSIONER

Appearances:

Mr M Kriewaldt on behalf of the Applicant.
Mr I Latham on behalf of the Respondent.
Mr L Burke on behalf of the Respondent.

Hearing details:

2023.
Sydney (by Video using Microsoft Teams)
July 26.


[1] (2020) FCAFC 152.

[2] (2022) FWCFB 66.

[3] (2020) FCAFC 152.

[4] [2014] FWCFB 1553.

[5] [2022] FWCFB 66.

[6] [2014] FWCFB 1553.

[7] (2022) FWCFB 66.

[8] [2022] FWCFB 66.

[9] (2020) FCAFC 152.

[10] (2020) FCAFC 152.

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Tilers Trade Outlet (Vic) Pty Ltd v Julia Cochrane [2023] FWCFB 170
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