Mariam Jarouche v Lipa Pharmaceuticals Ltd

[2024] FWC 1498

[2024] FWC 1498

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Mariam Jarouche
v

Lipa Pharmaceuticals Ltd

(C2022/7079)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 7 JUNE 2024

Application to deal with contraventions involving dismissal – application to relist for conciliation – certificate under s 368 issued in 2023 – no jurisdiction to relist – application dismissed

1. On 10 April 2024 Mariam Jarouche (applicant) applied using a Form F1 to the Commission to relist matter C2022/7079 for conciliation under s 368 of the Fair Work Act 2009 (Cth) (FW Act) (F1 application).

1. The F1 application is opposed by Lipa Pharmaceuticals Ltd (respondent).

1. At a directions hearing on 23 April 2024, the Commission identified two issues arising for determination, firstly whether the Commission has power to relist the matter in light of its litigation history (including the certificate issued by the Commission dated 28 February 2023) and secondly, if power exists, whether it is appropriate to do so.

1. The parties have agreed to the F1 application being determined on the papers, taking into account views expressed orally on 23 April 2024 and further written submissions. Written submissions were received from the applicant[1] and respondent.[2]

Background

1. The relisting application has its genesis in an application to deal with contraventions involving dismissal made by the applicant under s 365 of the FW Act on 21 October 2022 (general protections application).

1. The general protections application was opposed on jurisdictional grounds (allegedly not dismissed). In accordance with the Commission’s then practice, the application was referred directly to a staff conciliator. Conciliation was conducted on 13 December 2022. The matter did not resolve. No certificate was then issued. The application was allocated to me.

1. Having regard to the decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford,[3] I directed that the jurisdictional issue be determined before considering the exercise of powers under s 368.

1. By decision on 28 February 2023, I dismissed the jurisdictional objection (jurisdictional decision):[4]

“[119] I have found that Dr Jarouche’s resignation was forced within the meaning of s 386(1)(b) of the FW Act. Accordingly, Dr Jarouche was dismissed from employment.

[120] The jurisdictional objection by Lipa is dismissed. Dr Jarouche’s application under s 365 of the FW Act is within jurisdiction.”

1. In conjunction with the decision, I issued the following Order:[5]

“A. Further to my decision issued on 28 February 2023, I order that the jurisdictional objection by Lipa Pharmaceuticals Ltd be dismissed.

B.Being satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, I have determined to issue a certificate in accordance with s 368(3)(a) of the Fair Work Act 2009.” (footnote omitted)

1. I issued a certificate for the following reasons:[6]

“[121] As conciliation has occurred and as the matter was unresolved by conciliation, I am satisfied that all reasonable attempts to resolve the dispute other than by arbitration have been or are likely to be unsuccessful. A certificate under s 368(3)(a) will be issued.

[122] As any proceedings on merit are likely to concern facts and submissions beyond those considered to date by the Commission, I do not consider it appropriate to provide advice to the parties under s 368(3)(b).”

1. The certificate provided:

“CERTIFICATE UNDER SECTION 368

Fair Work Act 2009

s.365 – General protections

Matter No:     C2022/7079

Applicant:     Mariam Jarouche

Respondent:   Lipa Pharmaceuticals Ltd

DEPUTY PRESIDENT ANDERSON               ADELAIDE, 28 FEBRUARY 2023


An application pursuant to s.365 of the Fair Work Act 2009 (Cth) (Act) was made by Mariam Jarouche alleging she was dismissed by Lipa Pharmaceuticals Ltd in contravention of Part 3-1 of the Act.

The Fair Work Commission conducted a conference to deal with the dispute on 13 December 2022.

Pursuant to s.368(3)(a) of the Act, the Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful.

DEPUTY PRESIDENT

IMPORTANT NOTE:

The person dismissed or an industrial association that is entitled to represent the industrial interests of the person dismissed has 14 days from the date of this certificate within which to make a general protections court application to the Federal Court of Australia or the Federal Circuit and Family Court of Australia for a civil remedy order, unless the court extends the time for making such an application. For terminations that took effect after 1 January 2014 an application may also be made to the Fair Work Commission to arbitrate the matter by consent of both of the parties. This application must also be made within 14 days of this certificate unless the Fair Work Commission extends time for making such an application.”

1. No general protections court application proceedings were commenced by the applicant following the certificate being issued.

1. On 20 March 2023 the respondent appealed the jurisdictional decision.

1. On 31 May 2023 a Full Bench refused permission to appeal (appeal decision).[7] The Full Bench subsequently (11 December 2023) made a costs order in favour of the applicant.[8]

1. In the appeal decision, the Full Bench made a concluding observation:

“Further observation

[23] As earlier stated, the Commission conducted a conciliation conference in respect of Dr Jarouche’s application prior to the determination of Lipa’s jurisdictional objection, with Lipa’s consent. This involved the exercise of the Commission’s functions and powers under s 368(1). This should not have occurred since it was inconsistent with the Full Court’s command in Milford as set out in paragraph [4] above. Where the respondent to a s 365 application contends, in its response to the application or otherwise, that the application was not validly made because the applicant was not dismissed, this must be determined prior to the Commission ‘dealing’ with the dispute under s 368 including by conducting a conciliation conference.”

1. By letter dated 9 April 2024 and F1 application of 10 April 2024, the applicant, through her solicitors, has applied to the Commission to “exercise its discretion to relist the matter (with the consent of the respondent) to determine whether a conciliation should be re-convened”.[9]

1. The ground on which the application is made is that “the certificate was improperly issued”. It is contended that as conciliation occurred in advance of the jurisdictional decision being determined, the certificate was not made consistent with the FW Act, as decided by the Full Bench.

1. The respondent does not consent to relisting of the matter or reconvening the conciliation. It submits that the Commission has no power to do so, as only a court can set aside the certificate if it has been improperly issued. It further submits that, even if power existed, it would be inappropriate to do so for reasons which include that there is no utility in re-conciliating a matter which has already been conciliated, and that the applicant delayed making the relisting application until more than twelve months after the certificate was issued and more than ten months since the appeal decision.

Consideration

1. The application is misconceived.

1. For the following reasons, absent a determination by a court that the certificate dated 28 February 2023 is invalid or order by a full bench setting aside the certificate, I do not consider that the Commission has jurisdiction or power to relist the matter, conduct a fresh conciliation or (if the application remained unresolved after further conciliation) issue a further certificate. Nor, if jurisdiction and power existed, do I consider it appropriate to do so.

1. Firstly, a certificate dated 28 February 2023 was issued by the Commission. That certificate on its face was the exercise of power under s 368(3) of the FW Act. Having issued the certificate, the Commission no longer remains seized of the matter. No further powers were or are exercisable. Only if the certificate is invalid or set aside is the Commission seized of power to further deal with the application under s 368. A declaration of invalidity is a matter for the courts on judicial review. No court application seeking such a declaration has been made.

1. Secondly, the full bench in its  appeal decision did not determine that the certificate was invalid. Whilst a decision to set aside a certificate upon a finding of error is capable of being made by a full bench, the applicant neither appealed the decision to issue the certificate nor asked the full bench to do so. Nor has the applicant now asked the full bench to re-open the appeal proceedings or  sought to advance an out of time appeal.

1. Thirdly, to the extent that the applicant is seeking to have the first instance proceedings re-opened and to set aside the decision to issue the certificate in order to have conciliation re-convened, and whilst a general power to re-open proceedings under the FW Act exists, that proposition presupposes that the certificate was improperly issued. Whilst this is ultimately a matter for a court, it is more than tolerably arguable, on the facts in this matter, that the certificate of 28 February 2023 was not invalidly issued despite, as the Full Bench noted, it not having been appropriate for conciliation to have predated the jurisdictional finding.

1. This is because, as is apparent from the jurisdictional decision, it was only following the jurisdictional objection being dismissed that the evaluative assessment giving rise to issuing the certificate was undertaken. That evaluative assessment, apparent on the face of the jurisdictional decision, was that all reasonable attempts to resolve the dispute, other than by arbitration, were likely to be unsuccessful and that advice of the type contemplated by s 368(3)(b) would not be issued. The certificate was issued following the determination that a dismissal had in fact occurred within the meaning of the FW Act.. It did not precede the jurisdictional decision. Nor did it concern an application which was beyond jurisdiction. The conciliation which occurred did so with respect to an application that was, in fact, within jurisdiction.

1. Fourthly, absent a declaration that the certificate was invalid or set aside, discretionary reasons outweigh the stated reason for relisting and reconvening the conciliation. The FW Act requires a general protections court application to be made (or consent arbitration sought) within 14 days of the certificate being issued unless time is extended. The reason advanced by the applicant is that Ms Jarouche did not do so because the respondent had appealed the jurisdictional decision to a full bench.

1. That the jurisdictional decision was appealed does not appear to be a sound reason for delay in making a general protections court application given that the appeal was commenced after the expiry of the 14 day time period for making a court application. In any event, the court has, if appropriate, a discretion to stay proceedings pending an appeal outcome and a discretion to extend time if a late court application is made. Further, no reason has been given why the applicant delayed more than thirteen months after the certificate was issued, and more than ten months after the appeal decision, before making this application to relist. Given that both a s 365 application and a general protections court application are subject to short statutory time frames (14 days in each case, unless time is extended) these lengthy unexplained delays, absent the certificate being invalid, provide a discretionary reason against relisting the matter.

Conclusion

1. The application to relist matter C2022/7079 and reconvene conciliation is refused.

1. An order giving effect to this decision is issued in conjunction with its publication.[10]

DEPUTY PRESIDENT

Written submissions:

Mariam Jarouche: 7 May 2024 (by C H Cassimatis of Wentworth Chambers instructed by Gillis Delaney Lawyers)

Lipa Pharmaceuticals Ltd: 21 May 2024 (by J J E Fernn SC of PG Hely Chambers instructed by Baker & McKenzie Solicitors)

[1] Submissions of Miriam Jarouche 7 May 2024

[2] Submissions of Lipa Pharmaceuticals Ltd 21 May 2024

[3] [2020] FCAFC 152

[4] [2023] FWC 493, [119] – [120]

[5] PR751253

[6] [2023] FWC 493, [121] – [122]

[7] [2023] FWCFB  101

[8] [2023] FWCFB 244

[9] Letter, Gillis Delaney Lawyers 9 April 2024

[10] PR775806

Printed by authority of the Commonwealth Government Printer

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