Khadim v Griffith University
[2023] FedCFamC2G 490
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khadim v Griffith University [2023] FedCFamC2G 490
File number(s): BRG 250 of 2022 Judgment of: JUDGE VASTA Date of judgment: 15 May 2023 Catchwords: INDUSTRIAL LAW – interpretation of the words “the dispute” in s 365 of the Fair Work Act – the need for a certificate pursuant to s 368 of the FW Act before filing an application – application struck out Legislation: Fair Work Act 2009 (Cth): ss 50, 340, 341, 351, 365, 368, 370, 372, 570 Division: Division 2 General Federal Law Number of paragraphs: 51 Date of last submission/s: 15 May 2023 Date of hearing: 15 May 2023 Place: Brisbane Counsel for the Applicants: Mr Spence and Ms Willoughby Solicitor for the Applicants: Saines Legal Counsel for the Respondent: Mr Williams, Solicitor Solicitor for the Respondent: Minter Ellison ORDERS
BRG 250 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ASMAA KHADIM
First Applicant
RON JANJUA
Second Applicant
AND: GRIFFITH UNIVERSITY
Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
15 MAY 2023
THE COURT ORDERS THAT:
1.The application filed on 17 June 2022 be struck out.
2.The Applicants pay the Respondent’s costs of and incidental to the application fixed in the sum of $5,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Ex Tempore)JUDGE VASTA
In this matter, the respondent has asked that this Court strike out the claim that has been made by the first and the second applicants. The application by the first and second applicants was filed on 17 June 2022. The application alleged contraventions of section 50 of the Fair Work Act 2009 (“Fair Work Act”) and alleged contraventions of section 340 of the Fair Work Act.
The application claimed $974,000 for past and future economic loss for the first applicant and claimed $874,000 for past and future economic loss for the second applicant, as well as an overall claim for both applicants of $100,000 as compensation for hurt and humiliation.
Whilst the contraventions of section 50 were more or less particularised, the contraventions of section 340 were not so particularised.
The matter came before me on 28 July 2022 by way of consent chambers orders, on 4 October 2022 by way of consent chambers orders and on 9 December 2022 by way of consent chambers orders as well. In those orders, I did order that the applicants provide further and better particulars.
In short, the applicants were claiming that they were promised full-time academic staff employment at Griffith University in the Faculty of Law. They claim that they left employment at Bond University for the promise of such employment and they were, in effect, strung along by Griffith University to a point where Griffith University’s continual use of them as casual employees, fixed-term employees and even as part-time employees on a fixed-term contract, was contrary to the Griffith University Enterprise Bargaining Agreement.
With regard to the claims alleging contravention of section 340, on 20 February 2023, the applicants filed a document which contained a table of alleged exercises of workplace rights.
The first allegation of a workplace right alleged was that the first applicant exercised her workplace right to make a complaint or enquiry in relation to her employment within the meaning of section 341 of the Fair Work Act. That would seem to be a reference to the continual “to-ing and fro-ing” by the University and the way in which they handled the requests of the first applicant to be a full-time employee. That document said this about what constituted the adverse action:
The applicant was forced to resign by reason of the conduct of the respondent and was dismissed within the meaning of section 386 of the Fair Work Act. This is adverse action within the meaning of section 342.
The second allegation was that the second applicant was suffering from a disability within the meaning of section 351 of the Fair Work Act. The adverse action particularised was:
The respondent did not allow the second applicant to resume in trimester 3 2021. This conduct (1) was a dismissal of the second applicant’s employment within the meaning of section 386 of the Fair Work Act and (2) adverse action within the meaning of section 342 of the Fair Work Act. This conduct also altered the position of the employee to the employee’s prejudice within the meaning of section 342.
The provision of these further and better particulars meant that the applicants were clearly making a general protections claim involving dismissal. It was also in accordance with their claim for future economic loss of $500,000 and $400,000 respectively.
The statutory regime for claims to be brought for general protections, involving dismissal, is detailed in the FW Act. It starts with section 365 of the Fair Work Act. That section states:
Application for the FWC to deal with a dismissal dispute
If (a) a person has been dismissed and (b) the person alleges that the person was dismissed in contravention of this part, the person may apply to the Fair Work Commission for the Fair Work Commission to deal with the dispute. (Emphasis)
Section 368 talks about dealing with a dismissal dispute other than by arbitration. Subsection (1):
If an application is made under section 365, the FWC must deal with the dispute other than by arbitration.
Subsection (3) relevantly reads:
If the FWC is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful then (a) the FWC must issue a certificate to that effect and (b) …. (Emphasis)
Section 370 is titled, ‘Taking a Dismissal Dispute to Court’. It relevantly reads:
A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:
(a)Both of the following apply:
(i)The FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;
(ii)The general protections court application is made within 14 days after the certificate is issued or within such period as the court allows on an application made during or after those 14 days;
What this means is that, given the particulars that were provided on 20 February 2023, it squarely meant that the application, which was filed on 17 June 2022, was a general protections court application. Now, that means that the matter cannot come before the Court unless there has been (a) a certificate issued pursuant to section 368(3)(a); and (b) that it has been made within 14 days.
In this case, it is clear that the first applicant, who did take the matter to the Fair Work Commission and was given a certificate, did not file this application within those 14 days. In fact, the claim was filed seven months and 15 days out of time (because the first applicant had until 2 November 2021 to file a general protections court application in relation to the dispute, according to the certificate the first applicant was given). The first applicant had not applied, and still has not applied, for an extension of time.
The second applicant had not taken the dispute to the Fair Work Commission and so therefore, did not have a certificate.
The words of section 370 are prescriptive and quite emphatic. And that is persons in the position of the first and second applicant must not make a general protections court application in relation to the dispute.
The respondent filed an interlocutory application on 6 March 2023 asking for this matter to, in effect, be struck out for that reason. The matter came before me on 20 March 2023.
The applicants said that they were not ready, and not in a position to argue the matter, and so the matter was adjourned to today.
What has occurred today is that an amended further and better particulars has been handed up to me. It has not yet been filed (though I understand that it will be filed immediately and may even have been done so by the time I finish these ex tempore reasons). What is said, in this document, is that any claim for relief from adverse action that was a dismissal is now no longer relied upon.
In effect, what is being alleged now with regard to the first applicant is that the “to-ings and fro-ings” which consisted of the respondent putting her on casual employment, and then fixed part-time employment and then fixed employment and then back to casual employment and so on, were actions that prejudiced her in her position. It required her to perform duties in excess of the duties of a person who would be performing those duties either in casual, or in part-time, or in fixed term, employment. Therefore, the conduct of the respondent amounts to adverse action but non-dismissal adverse action.
With regard to the second applicant, the second applicant now says that the adverse action was not allowing the applicant to resume in trimester 3, 2021. It is no longer alleged that this conduct was a constructive dismissal but, rather, it was altering the position of the employee to the employee’s prejudice.
Another particular was then added to the statement of further and better particulars, alleging another ground of adverse action. I am told that during the lunchbreak, in which I said that I would consider the matter, further and better particulars have been filed. This document was certainly filed out of time with the orders that I have made for the filing of the further and better particulars.
Again, I have not decided yet whether to accept the filing but, in any event, what is clear is that the applicant is now seeking to totally recast the action that it brought on 17 June 2022. I will have something to say about that later in these reasons.
What the applicant has argued is that section 365 must be seen in its own particular context. The applicant argues that the words “the dispute” mean that “the dispute” is totally, and unequivocally, involved with only those parts of the application that are said to lead to the dismissal and that it cannot speak of anything else.
However, as has been pointed out during the course of argument today, as the applicants’ own Counsel submitted, it would be an absurdity for persons to have to compartmentalise any particular claim that had been made so that it included dismissal claims as well as non-dismissal claims; that is, that there should not be a need to file more than one application.
In that respect the respondent also agrees. I agree with that submission as well because of the wording of section 372 which is headed:
Application for FWC to deal with a non-dismissal dispute.
It reads:
If (a) a person alleges a contravention of this part and (b) the person is not entitled to apply to the FWC under section 365 for the FWC to deal with the dispute, the person may apply to the FWC under this section for the FWC to deal with the dispute.
What is clear here is that, whether one talks about a dismissal dispute or one talks about a non-dismissal dispute, as far as the Fair Work Act is concerned, the dispute is all of the circumstances within which the employee and the employer are in dispute.
If there is an aspect of that dispute that involves the dismissal then it is an application pursuant to section 365. If it does not involve a dismissal and therefore it cannot be dealt with under section 365, then it is dealt with pursuant to section 372.
This means that the words “the dispute” encompass all of the matters, whether they are dismissal aspects or whether they are non-dismissal aspects.
The applicants argue that any application, that is put before this Court, can have the specific and precise dismissal allegations excised from the general claim and looked at by a Court to see whether those aspects, and those aspects only, have been the subject of a certificate under section 368 rather than having to look at the whole of the matter.
It is instructive then to look at the certificate that was provided by the Fair Work Commission.
The certificate reads:
An application pursuant to section 365 of the Fair Work Act was made by the first applicant alleging she was dismissed by Griffith University in contravention of part 3-1 of the Act. The Fair Work Commission conducted a conference to deal with the dispute on 12 October 2021 pursuant to section 368(3)(a) Fair Work Commission certifies that it is satisfied that all reasonable attempts to resolve the dispute, other than by arbitration have been unsuccessful.
The claim, which was before the Fair Work Commission, had an almost word-for-word claim as the application that was filed on 17 June 2022 under the heading “Alleged Allegation”. The allegations were, under the heading “Which Sections of the Fair Work Act Did the Employer Contravene”, one in which “section 340” was ticked. This was because of the exercise of workplace rights and adverse actions which were enumerated during the time which included the dismissal, or constructive dismissal; the not offering of any further sessional work; that because the first applicant was going to be a sessional employee, that it would be inappropriate for her to remain on the internationalisation committee; and, telling the applicant that she was no longer able to be offered a proposal that she had spoken about of July 2021. Those actions were said to be adverse actions. Section 50 was also said to have been contravened.
When one looks at the application before the Fair Work Commission, it is clear that the applicant was taking the dispute to the Fair Work Commission and the Fair Work Commission attempted to do what it could, to resolve the matter, other than by arbitration.
That dispute only involved one aspect that led to dismissal. Nevertheless, it is that aspect that brings it under the banner of section 365. It is that aspect that caused the non-resolution of the matter to have the Fair Work Commission issue a certificate pursuant to section 368.
The certificate does not talk of only involving a claim about the dismissal and nothing else. The certificate talks about the dispute. That is in keeping with what I have earlier said about the absurdity of having to launch different applications for different aspects of contravening the Fair Work Act.
This means, that in this case, I find that the whole of the dispute was before the Fair Work Commission and the certificate was issued in relation to the whole of the dispute. It was the whole of the dispute that the first applicant sought to bring before this Court and it is only today that the first applicant seeks to recast that application.
In my view, it is clear that this was a matter that could not come before the Court unless there was a certificate and that the application was filed within the 14 days after the issuing of the certificate.
The application was not filed within the 14 days and it could not, therefore, be before the Court because of the prohibition in section 370.
Similarly, the claim by the second applicant was clearly a “dismissals claim” and it not until today where there has now been a disavowing of that action. It seems to me that the die was well and truly cast when the application was filed, but it was emphasised on 20 February when the further and better particulars were filed. It seems to me that the filing, by the second applicant, of this application also offends section 370.
It is clear that the factual matrix, upon which this application is based, is exactly the same factual matrix that was before the Fair Work Commission.
It is clear, from the application, which still seeks $500,000 in future economic loss for the first applicant and $400,000 in future economic loss for the second applicant, (those aspects not being the subject of any subsequent amendment or deletion, or having even been sought today to be amended by any documentation) what the true character of this application actually is.
This application does offend section 370 and for those reasons it must be struck out because, according to section 370, it could never have been filed in the first place.
What happens from here on in is not a matter for me, but a matter for the parties to sort out, but that will be the order of the Court.
There has been application for costs. What has been clear, during this hearing, is that the path, or action, sought from 6 March 2023 (when the respondent filed this application) was something that the applicants have obviously realised, straightaway, was correct when they started putting together the further and better particulars.
There has been no explanation given as to why this matter was filed in the first place and why those further and better particulars were given. The sudden about-face today really illustrates the correctness of the position that had been taken by the respondent. It seems to me that the carrying on of this matter, especially since 6 March 2023, is an unreasonable act. That unreasonable act has caused the respondent to expend costs.
The Court should, pursuant to section 570, subsection (2), order that the applicants pay the costs of the respondent.
The matter probably should have been brought before the Court before it had. However, the respondent originally sought to argue their case as a matter of interpretation of the Rules, rather than a matter that should simply have been looked at upon the interpretation of section 370, and there need not be any reference to the Rules.
It seems to me that the Court should simply set a fixed sum figure which would alleviate any more costs being expended trying to ascertain what would be the costs that the Court would allow, either on an indemnity scale or on a standard scale.
I will set that sum at $5,000.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 15 May 2023
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