Kellie Longbottom v Oolong Aboriginal Corporation

[2017] FWC 5678

[2017] FWC 5678

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Kellie Longbottom
v
Oolong Aboriginal Corporation
(C2017/2540)

COMMISSIONER MCKINNON MELBOURNE, 31 OCTOBER 2017

Application to amend form under section 586.

[1] Ms Kellie Longbottom (Ms Longbottom) made an application to the Fair Work Commission on 12 May 2017 under s.365 of the Fair Work Act 2009 (Cth) (the Act) alleging a breach of the general protections involving dismissal.

[2] An issue arose during conciliation of the matter on 11 July 2017 about whether the application made by Ms Longbottom was an unfair dismissal or general protections application.

[3] The question is whether in substance, the application made by Ms Longbottom was an unfair dismissal application, and if so, whether the Form F8A should be substituted with a Form F2 in this matter under section 586 of the Act.

[4] The significance of the dispute is twofold:

a. The Commission has jurisdiction to determine unfair dismissal applications but unless the parties agree otherwise, only the Courts have jurisdiction to determine general protections matters.

b. Ms Longbottom is now out of time to make an unfair dismissal application. If her current claim is withdrawn and an unfair dismissal application made, a grant of additional time under section 394 of the Act will be required.

Relevant facts

[5] The relevant agreed or uncontested facts are these:

1. Ms Longbottom’s employment was terminated by Oolong Aboriginal Corporation (Ooolong) on 10 May 2017.

2. On the evening of 10 May 2017, Ms Longbottom sent an email to SafeWork NSW advising of the termination and seeking guidance. The email included the words “I want to application for unfair dismissal.”

3. On 11 May 2017, SafeWork NSW sent Ms Longbottom an email including links to information on unfair dismissal and access to legal advice and providing guidance on workers compensation entitlements and injury management plan obligations. 1

4. From 11 May 2017 to 12 May 2017, Ms Longbottom undertook research on the Commission’s website. 2

a. On 11 May 2017, Ms Longbottom took the “unfair dismissal eligibility quiz” on the Commission’s “unfair dismissal page”. The quiz confirmed that she was eligible to apply for unfair dismissal. She completed the Form F2 and printed it off.

b. Ms Longbottom resumed her research on the Commission’s website later that evening “through to approximately mid day the next day”. According to Ms Longbottom, she did not sleep and stayed up all night.

5. At 12.18pm on 12 May 2017, Ms Longbottom lodged a Form F8A general protections application involving dismissal in the Commission. The covering email to the Commission said “I have attached a copy of my unfair dismissal application.” 3

6. On 23 May 2017, Oolong filed its response to the application. 4

7. On 22 June 2017, Ms Longbottom sent an email to the Commission asking for assistance to find the forms for her lawyer to fill out as her representative. The email included the sentence “I have a hearing on 11^th July for unfair dismissal”. The Commission responded by providing a copy of the relevant form and advising “If you have any questions please call the General Protections Team on 1300 780 699”.

8. On 10 July 2017, Ms Longbottom’s legal representative advised the Commission that he was acting on her behalf. 5

9. A conciliation conference was conducted at 9.15am on 11 July 2017. After the conference, Ms Longbottom’s representatives sent a copy of a Form F2 – Unfair dismissal application relating to Ms Longbottom and Oolong to the Commission. The Form F2 is unsigned and undated. 6

10. On 24 July 2017, Ms Longbottom applied to the Commission for orders under section 586 of the Act amending her application to an unfair dismissal application, on the basis of honest mistake.

[6] The matter was listed for mention on 7 August 2017 and directions issued. 7 Ms Longbottom filed submissions and evidence on 21 August 2017 and 11 September 2017, and Oolong filed submissions and evidence on 5 September 2017.

[7] On 12 September 2017, the parties advised that they did not seek to cross-examine any witnesses in relation to the application under section 586 and sought that the matter be determined on the papers.

Relevant law

[8] Section 586 of the Act provides:

“586 Correcting and amending applications and documents etc.

The FWC may:

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to the FWC.”

[9] In Ioannou v Northern Belting Services Pty Ltd, 8 a Full Bench of the Commission dealt with a similar request to substitute one kind of application for another, and said:

“[17] In our view, the power in s.586 of the Act cannot be used to allow an amendment to an application that fundamentally changes the kind of application that was originally made. The amendment sought by the applicant requires a fundamental change to the kind of application originally made, by transforming an unfair dismissal application into an application under s.365, and might allow this to be done without the applicant meeting the procedural and other requirements set out in the Act for making of a general protections application.

[18] An unfair dismissal application under s.394 is fundamentally different to a general protections application under s.365, even though both may arise from the same set of circumstances involving the dismissal of an employee.”

[10] The Full Bench noted that the appropriate course in that case was for the applicant to withdraw the unfair dismissal application and file a general protections application together with an application for extension of time in accordance with the Act. 9

[11] In Hambridge v Spotless Facilities Services, 10 a Full Bench also dealt with a matter involving use of the wrong form. The Full Bench stated as follows (footnotes omitted):

“[25] The critical factual consideration in this matter, we consider, is the nature of the first application that was filed by Mr Hambridge. The Deputy President found in the Decision that “... it is clear that Mr Hambridge intended to make an unfair dismissal application but used the wrong form when he lodged his general protections application on 9 December 2017”. 23 Insofar as that was a finding concerning Mr Hambridge’s intention when he made the first application, it was not challenged by either party in the appeal and was indubitably correct on the basis of the material before the Deputy President. The corollary of that finding, of course, is that Mr Hambridge did not intend to make a general protections application, and used the Form F8 by mistake. Notwithstanding his conclusion concerning Mr Hambridge’s intention, the Deputy President nonetheless treated the first application as if it were a general protections application rather than an unfair dismissal remedy application using the wrong form. That the Deputy President treated the first application as such is apparent at paragraph [20] of the Decision (in relation to the reason for the delay) and paragraph [25] (in relation to whether there was any action taken to dispute the dismissal).

[26] We consider that the Deputy President erred in doing so. The Commission is required by s.577(b) to perform its functions and exercise its powers in a manner that is “quick, informal and avoids unnecessary technicalities”. In this case, that requirement would operate to direct the Commission to look at the substance of the first application, not the form that happened to be used to make it. In substance, we consider that it was an unfair dismissal application: it was intended to be one, it was described as one in Mr Hambridge’s covering email, and its contents were concerned with contentions of unfairness in the dismissal rather than any cause of action for a contravention of Pt.3-1 of the FW Act. It must be acknowledged that Mr Hambridge attempted in the first application to respond to requests and questions concerning the general protections provisions of the FW Act, but it is apparent that he did so in an endeavour to complete a form which he understood at the time to be for an unfair dismissal remedy application.”

[12] The Full Bench distinguished the case from Ioannou on the basis that the error was one of form rather than substance:

“[32] Spotless’s reliance on the Full Bench decision in Ioannou v Northern Belting Services Pty Ltd as standing against the proposition that s.586 could have been used to correct Mr Hambridge’s use of the wrong form in his first application is, with respect, misplaced. Ioannou concerned an application to amend an unfair dismissal remedy application to transform it into a general protections application. The Full Bench’s conclusions in that matter were as follows (footnote omitted):

“[22] Having regard to these considerations, we have serious reservations whether the power in s.586 of the Act can be relied upon to convert an unfair dismissal application into a general protections application. Section 586 does not provide a source of power to revoke or set aside an application. Neither does it, in our view, enable the Commission to “correct” or “amend” an application made under one type of statutory provision so that it becomes an application under a fundamentally different provision.

[23] The other reason for our conclusion relates to the provisions of Division 3, Subdivision B of Part 6-1 (Multiple Actions) of the Act. These provisions deal with cases involving a dismissal where more than one cause of action might be available for the same conduct or circumstances.

[24] We consider that the use of any power under s.586(a) of the Act to allow an unfair dismissal application to be converted into a general protections application is not permissible having regard to the multiple actions provisions of the Act. The exercise of the power under s.586 for the benefit of the applicant would achieve for the applicant indirectly that which is directly prohibited by the multiple actions provisions.”

[33] Because Mr Hambridge’s first application was in substance an unfair dismissal application using the wrong form and not a general protections application, the conclusions in Ioannou are inapplicable. The action that might have been taken under s.586 was not a conversion of the application to one of a fundamentally different character; it would merely have been a correction, amendment or waiver of an irregularly-made unfair dismissal remedy application. Spotless’s further submission that staff conciliators do not have delegated power under s.586 does not take the matter any further; any such action could have been taken by a Commission member if the irregularity in the first application had been properly identified.”

Consideration

[13] In Hambridge, the nature of the cause of action before the Full Bench was determined having regard to the applicant’s intention, the way he described his application and the substance of the application itself.

[14] In this matter, the nature of the cause of action commenced by Ms Longbottom is disclosed in the Form F8A application, which includes an account of the dismissal and the surrounding circumstances.

[15] In my view, Ms Longbottom intended to make an unfair dismissal application. She described her application in that way on more than one occasion, both at the time of filing it in the Commission and after that time.

[16] However, the Form F8A also includes the following allegations:

…“3 months later and after I had lodged a formal complaint against the acting CEO for bullying they sacked me for the woolworthes purchases… I had prepared a 26 page document regarding when and how I felt bullied by acting CEO… I do not feel I was given affair go when my complaint against acting CEO sister was Judge and Jury …“Terminated whilst on workers compensation.”

[17] Ms Longbottom researched her claim for many hours before filing it in the Commission. She took the unfair dismissal eligibility quiz on the Commission’s website, and determined that she was eligible to make an unfair dismissal application. At the end of the quiz, she found the Form F2 application, filled it out and printed it off. However, she did not sign the Form F2 application and nor did she submit it to the Commission.

[18] After continuing her research later that evening and all through the next morning, a Form F8A general protections application was made.

[19] Ms Longbottom “cannot explain how [she] sent the wrong form for Fair Work” and a lot of what she read on the Commission’s website “didn’t make sense”. 11 It is evident on the materials that Ms Longbottom had only a limited understanding of the legal distinction between unfair dismissal and general protections claims, gained through her hours of research on 11 and 12 May 2017.12 In my view, it is likely that this research led her to pages on the Commission’s website dealing with both unfair dismissal and termination of employment.

[20] The “Termination of employment” page includes information about “which type of application is right for me?”. Relevantly, the website indicates that a “general protections dismissal application” might be "the most appropriate application for you if you were dismissed from your employment because:

• you were temporarily absent from work because you were sick or injured; or



• you exercised or proposed to exercise a workplace right (eg by making a complaint or inquiry in relation to your employment, such as querying a pay rate).”

[21] The phrase “general protections dismissal” uses plain language, including the word “dismissal”, to describe a particular form of legal complaint under the Act. In my view, it may not always be obvious to a person unfamiliar with the jurisdiction that a claim of this kind is not also an unfair dismissal claim. Each can arise on the same facts. In this case, it is clear that Ms Longbottom considered her dismissal to be unfair, but that she also considered it important that she was terminated while on workers compensation, and after she had lodged a formal complaint against the acting CEO.

[22] A comparison of the Form 8A application and the Form F2 application provided by Ms Longbottom shows similarities but also differences in each response. Points are made in one document and explained in another way in the other. The Form F8A is lengthier than the Form F2. Each form was completed at different times. The Form F8A was the later of the two documents created, after many hours of research by Ms Longbottom.

Conclusion

[23] In my view, after researching the matter, Ms Longbottom decided that the Form F8A was the appropriate form to use because there were relevant general protections issues to be raised.

[24] I find that in substance, Ms Longbottom’s application disclosed a cause of action for contravention of the general protections under Part 3-1 of the Act. On the authority in Ioannou,the application to substitute the Form F8A with a Form F2 in this matter would require a fundamental change to the kind of application originally made. That is not a permissible use of the power in section 586 of the Act.

[25] As in Ioannou, the appropriate course is for Ms Longbottom to withdraw her general protections application and file an unfair dismissal application together with an application for extension of time in accordance with the Act.

[26] The application under section 586 of the Act is dismissed.

COMMISSIONER

 1   Statement of Kellie Longbottom, Attachment C

 2   Statement of Kellie Longbottom

 3   Ibid, Attachment E

 4   Form F8A Employer Response, 23 May 2017

 5   Form F53 - Notice of Representative Commencing to Act, 10 July 2017

 6   Email dated 11 July 2017, 10.54am from Patrick Latham.

 7   Ms Longbottom filed submissions and evidence on 21 August 2017 and 11 September 2017, and Oolong filed submissions and evidence on 5 September 2017.

 8   [2014] FWCFB 6660

 9   Ibid at [31]

 10   [2017] FWCFB 2811.

 11   Witness statement of Kellie Longbottom

 12   Witness statement of Kellie Longbottom

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