Kylie Seymour v RSL LifeCare Limited
[2020] FWC 2454
•11 MAY 2020
| [2020] FWC 2454 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Kylie Seymour
v
RSL LifeCare Limited
(C2019/5810)
DEPUTY PRESIDENT KOVACIC | CANBERRA, 11 MAY 2020 |
General protections contravention involving dismissal - request to amend application to add two persons as additional respondents– application granted in part – one person to be added as a respondent.
[1] This decision concerns an application made on 8 November 2019 by Ms Kylie Seymour (the Applicant) under s.550 of the Fair Work Act 2009 (the Act) requesting that the Fair Work Commission (the Commission) amend her general protections application (the original application) to add two respondents, Ms Laurie Leigh and Mr Drew Pearce. The original application, made on 18 September 2019, cited RSL LifeCare Limited as the sole Respondent to Ms Seymour’s general protections application. Ms Leigh is the Respondent’s Chief Executive Officer while Mr Pearce is the Respondent’s Chief Financial Officer.
[2] Ms Seymour’s original application was the subject of a conciliation conference before one of the Commission’s Conciliators on 3 December 2019 which failed to resolve the dispute.
[3] In subsequent developments, Ms Seymour’s general protections application was allocated to me on 20 December 2019. On 23 December 2019 my chambers emailed the Respondent’s representative asking whether the Respondent consented to Ms Seymour’s application to amend her original application or wished to have the matter referred to the relevant National Practice Leader. The Respondent’s representative replied on 25 December 2019 advising that the Respondent wished to be heard on what it described as the “two divergent applications filed by the Applicant.”
[4] In early February 2020 the Respondent’s representative reaffirmed that the Respondent wished to be heard regarding its objections to Ms Seymour’s application to amend her original application and proposed that the parties by provided with the opportunity to provide brief written submissions with the issue to be determined on the papers. Ms Seymour agreed to that approach on 18 February 2020 on the basis that she would provide a statutory declaration with her written submissions. Directions were subsequently issued on 20 February 2020, with revised directions issued on 5 March 2020.
[5] For the reasons set out below, I have decided to amend Ms Seymour’s original application to add Ms Leigh as a respondent but have declined to add Mr Pearce as a respondent.
Background
[6] Ms Seymour in her original application described the actions of the Respondent that led her to make her application as follows:
• on 28 August 2019 she was asked to attend a meeting to discuss complaints which Ms Leigh had received from two of her [i.e. Ms Seymour’s] direct reports;
• at the meeting she explained the background to the complaints, explaining that she was performing her role and doing what she considered to be in the best interests of the employees involved and the Respondent; and
• she was then dismissed from her employment; and
• she felt she was performing a workplace right and the function and duties of her role. 1
[7] Ms Seymour contended in her original application that the Respondent had contravened s.340 of the Act. 2
[8] In her application to amend her original application, Ms Seymour set out the relevant facts relating to her dismissal as including that:
• on or around July 2019 the Respondent employed four new executives, including Mr Pearce:
• during July 2019, Mr Pearce singled her out by directing her to perform tasks that were not part of her role, and subjected her to repeated, unreasonable behaviour that fits within the definition of workplace bullying under the Act;
• on 30 July 2019 she made a complaint/inquiry to Ms Leigh about the bullying behaviour of Mr Pearce;
• at a meeting later that day with the management team, Mr Pearce openly diminished her role in front of her colleagues;
• on 8 August 2019 she received an email invitation from Ms Leigh to a “formal meeting regarding her employment”;
• she commenced a period of sick leave on 9 August 2019, returning to work on 26 August 2019; and
• on 28 August 2019 she attended a meeting with Ms Leigh at which her employment was terminated effective immediately, contending that her dismissal was a direct result of her having had or exercised workplace rights under s340 of the Act. 3
[9] In her application to amend her original application Ms Seymour identified the following as the grounds for the relief she sought:
• she possessed and exercised workplace rights within the meaning of s.341 of the Act by inter alia being able to make complaints or inquiries in relation to her employment and making such complaints or inquiries;
• the Respondent took adverse action for the substantive and operative reason that she possessed and/or exercised one or more of these workplace rights;
• in doing so, the Respondent contravened s.340 of the Act;
• Ms Leigh and Mr Pearce were aware of the adverse action that was taken, were either the, or a, relevant decision maker with respect to that adverse action and were knowingly involved in the contravention within the meaning of s.550of the Act; and
• Ms Leigh and Mr Pearce were therefore taken to have engaged in the contravention personally.
The Applicant’s case
[10] In her submissions Ms Seymour relied on the Commission’s discretionary power under s.586 of the Act to amend her original application to add Ms Leigh and Mr Pearce as respondents. Among other things, Ms Seymour submitted that:
• her application to amend her original application was not fundamentally different to the contravention alleged in her original application, adding that the circumstances regarding her termination were described in her original application and involved both Ms Leigh and Mr Pearce;
• Ms Leigh was aware that she had made complaints and inquiries in relation to her employment, including the she had made complaints relating to Mr Pearce;
• she made a number of complaints directly to Mr Pearce about his behaviour, which constituted the exercise of workplace rights;
• both Ms Leigh and Mr Pearce were aware of the adverse action that was taken, were either the, or a, relevant decision maker with respect to that adverse action and were knowingly involved in the contravention within the meaning of s.550of the Act; and
• Ms Leigh and Mr Pearce were therefore taken to have engaged in the contravention personally and as such should be included in the proceedings.
[11] Much of Ms Seymour’s statutory declaration set out her version of the events leading up to her dismissal. However, in her statutory declaration Ms Seymour also stated that she only became aware of the possibility of making a general protections application on 18 September 2019, adding that she quickly completed and lodged her application as that day was 21 days after her dismissal had taken effect. Ms Seymour highlighted that at the time she lodged her original application she was unrepresented, adding that she only engaged legal representation when she received the Respondent’s response to her original application. Beyond that, Ms Seymour stated inter alia that:
• without a legal background and legal representation at the time of making her original application, she was not aware that she had to outline the reasonfor her termination or how she had exercised workplace rights that lead to her dismissal;
• both Ms Leigh and Mr Pearce were clearly involved in the contraventions as Ms Leigh did nothing when she advised her that she was feeling bullied by Mr Pearce and Mr Pearce bullied her and was disrespectful and unprofessional towards her;
• Ms Leigh was the clear decision maker in respect of her dismissal, adding that it was no coincidence that she raised complaints about Mr Pearce a few days prior to her dismissal;
• Ms Leigh was aware of her complaints and that Mr Pearce was the reason she had made the complaints; and
• Ms Leigh and Mr Pearce should both be personally liable for their conduct, for how they treated her and for how they carried out the termination of her employment.
The Respondent’s case
[12] The Respondent opposed Ms Seymour’s application to amend her original application. Key aspects of the Respondent’s submissions included that:
• it was unnecessary for Ms Seymour to seek an order to amend her original application to include Ms Leigh or Mr Pearce as respondents;
• Ms Seymour’s application to amend her original application amounted to a different complaint, both factually and substantively in terms of the contraventions alleged, and was therefore 47 days out of time and could not be the subject of a certificate issued pursuant to s 368 of the Act;
• drawing on the decision in Kape v The Golden Mile Loopline Railway Society Inc (No 2) 4, it was established that a general protections court applicant need not specifically name individual respondents to their claim (as accessories to alleged contraventions pursuant to s.550 of the Act) in the initial application to the Commission as a necessary condition for the applicant to then seek relief against individual respondents in a court application;
• based on the facts stated in the original application, it appeared to be open to Ms Seymour to name Ms Leigh as a respondent to a potential general protections court application;
• there was no reference to Mr Pearce in Ms Seymour’s original application; and
• to the extent that Ms Seymour was seeking to substitute her application to amend for her original application, the Commission should refuse permission to do so (whether pursuant to s.586 of the Act or otherwise) as this would have the effect of materially changing the substance of the application before the Commission and would have the effect of causing it [i.e. the Respondent] prejudice.
The statutory framework
[13] The relevant provisions of the Act are set out below:
“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) …
550 Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2) A person is involved ina contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.” (Legislative notes not included)
Consideration of the issues
[14] The Full Bench in Peter Ioannou v Northern Belting Services Pty Ltd (Ioannou) 5considered an application made pursuant to s.586 of the Act to amend an unfair dismissal application made under s.394 of the Act application so that it may proceed as a general protections application under s.365 of the Act. Among other things, the Full Bench in that casestated as follows:
“[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.
…
[21] Unlike in the courts, there is no general ability to apply to the Commission for relief. Applications can only be made to the Commission under specific provisions of the Act and there are jurisdictional, procedural and other requirements under the Act, the Regulations and the Rules which apply to different applications. Section 585 of the Act requires that an application to the Commission must be in accordance with the procedural rules relating to applications of that kind.
[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.” 6 (Endnotes not included, underlining added)
[15] In this case, it is not contended that Ms Seymour’s application to amend her original application has the effect of changing the statutory basis of her application. In other words, her application if amended would continue to be a general protections application involving dismissal made under s.365 of the Act. Accordingly, I am satisfied that the amendments sought are not precluded by s.586 of the Act.
[16] I turn now to consider whether the amendments sought by Ms Seymour should be made. As noted above the Respondent contended that Ms Seymour’s application to amend her original application amounted to a different complaint, both factually and substantively in terms of the contraventions alleged.
[17] In Shea v TruEnergy Services Pty Ltd (No 1) (Shea) 7 Justice Dodds-Streeton made the following observations regarding the extent to which the matters in dispute in respect of an application made under s.365 of the Act needed to coincide with the content of the application made to the Commission in respect of the dispute:
“63 The introductory reference to “the dispute” is contained in s 365, the first section of Subdivision A. Section 365 identifies the dispute at a high level of generality by reference to the occurrence of a person’s dismissal alleged to be in contravention of Part 3-1, and permits an application to FWA to deal with “the dispute” thus identified. Section 365 does not expressly, or, in my opinion, implicitly provide that “the dispute” precisely coincides with the content of the FWA application. Rather, it permits the application to be made to FWA to deal with the dispute.
64 While there are a number of different potential bases of contravention of Part 3-1, the Act does not prescribe the content, essential inclusions or level of detail of the application which may be made to FWA under s 365. The Form F8 headed “Application for FWA to Deal with a General Protections Dispute – Fair Work Act 2009 – ss 365, 372” completed by the applicant in this case is a short document setting out basic questions, including “Alleged contravention(s) of Part 3-1”, “Section(s) allegedly contravened” and “Description of alleged contravention(s)”. In the present case, the applicant’s description was contained in an annexure. In practice, the dispute identified in general terms under s 365 is likely to be further elaborated or described not only in the FWA application but also in the respondent’s response (if any) and/or the FWA conference conducted to deal with the dispute.” 8 (Underlining added)
[18] While I accept that Ms Seymour’s application to amend not only describes the workplace rights she exercised in greater detail but also in terms different to her original application, having regard to the decision in Shea this of itself is not precluded by the Act. A relevant consideration in this regard is the fact that Ms Seymour was not legally represented when she filed her original application. In those circumstances it is not surprising that her contentions have been better particularised in her application to amend as a result of the benefit of legal representation.
[19] In her application to amend, Ms Seymour contends that both Ms Leigh and Mr Pearce were either the, or a, relevant decision maker with respect to the adverse action taken against her (i.e. her dismissal). In her statutory declaration Ms Seymour states that Ms Leigh was the clear decision maker in respect of her dismissal. However, Ms Seymour in her statutory declaration does not particularise Mr Pearce’s role as a relevant decision maker regarding her dismissal, though she does describe the conduct she attributes to him. Further, Ms Seymour’s written submissions do not elaborate as to Mr Pearce’s role as a relevant decision maker. In short, Ms Seymour’s submissions and statutory declaration do not posit or address in any way how Mr Pearce’s conduct goes to any of the actions specified in s.550(2) of the Act. The Respondent in its submissions acknowledged that based on the facts stated in the original application, it appeared to be open to Ms Seymour to name Ms Leigh as a respondent to a potential general protections court application and noted that Mr Pearce was not named in Ms Seymour’s original application.
[20] The Respondent also contended in its submissions that it would be prejudiced were Ms Seymour’s application to amend granted, though it did not specify how it would be prejudiced. In circumstances where the application to amend was made on 8 November 2019, i.e. several weeks in advance of the conciliation conference on 3 December 2019 regarding Ms Seymour’s original application, I consider it highly unlikely that the Respondent would be prejudiced were the application to amend granted with any prejudice that might arise unlikely to be anything more than minimal. As such, I consider the issue of prejudice to be a neutral consideration.
[21] In summary, the above analysis weighs in favour of granting Ms Seymour’s application to amend only in so far as it relates to Ms Leigh.
[22] Section 586(a) of the Act provides the Commission with a broad discretion to correct or amend an application “on any terms that it considers appropriate”.
[23] In this case I am prepared to amend Ms Seymour’s original application to add Ms Leigh as a respondent. However, in circumstances where Ms Seymour has not set out Mr Pearce’s role as a relevant decision maker in her dismissal or how his conduct goes to any of the actions specified in s.550(2) of the Act, I do not propose to amend her original application to add Mr Pearce as a respondent.
Conclusion
[24] For the reasons outlined above, I consider it appropriate to amend Ms Seymour’s original application to add Ms Leigh as a respondent but decline to add Mr Pearce as a respondent.
[25] As Ms Seymour’s application was the subject of a conciliation conference on 3 December 2019 aimed at resolving the dispute, and in circumstances where that conference occurred against the factual matrix set out in Ms Seymour’s application to amend her original application, I am satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful. A certificate will therefore be separately issued in accordance with s.368(3) of the Act.
Printed by authority of the Commonwealth Government Printer
<PR719265>
1 Form F8 – General protections application involving dismissal at Question 3.1
2 Ibid at Question 3.2
3 Form F1 – Application (no specific form provided) at Question 2.1
4 [2017] FCCA 3014
5 [2014] FWCFB 6660
6 Ibid at [17]-[22]
7 [2012] FCA 628
8 Ibid at 63-64
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