McGrory v Horizon One Recruitment Pty Ltd

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FEDERAL COURT OF AUSTRALIA

McGrory v Horizon One Recruitment Pty Ltd [2024] FCA 810  

File number(s): QUD 569 of 2023
Judgment of: COLLIER J
Date of judgment: 23 July 2024
Catchwords:

INDUSTRIAL LAW - interlocutory application for dismissal of proceedings against second respondent for want of jurisdiction – litigant in person - where second respondent not named in proceedings before Fair Work Commission - where second respondent not named in s 368 certificate – whether jurisdiction of the Court enlivened under section 370 of Fair Work Act 2009 (Cth)

COSTS – where proceeding against second respondent for want of jurisdiction – no costs jurisdiction – whether s 570(2)(b) of Fair Work Act enlivened – whether failure to name the second respondent in proceedings before the Fair Work Commission and subsequently bringing proceedings against the second respondent in the Federal Court of Australia pursuant to s 370 of Fair Work Act was an “unreasonable act or omission” for the purposes of s 570 – meaning of “dispute” in s 370 of Fair Work Act – no order as to costs

Legislation: Fair Work Act 2009 (Cth) ss 340, 343, 351, 365, 368, 369, 370, 570
Cases cited:

Kelly v Corporation of the Synod of the Diocese of Brisbane [2023] FCA 829

Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 79

Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR

Parker v HG Innovations Pty Ltd (No 2) [2020] FCA 906
Division: Fair Work Division
Registry: Queensland
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 25
Date of hearing: 23 July 2024
Counsel for the Applicant: The applicant appeared in person
Counsel for the First Respondent: Ms N A-Khavari
Solicitor for the First Respondent: Moray & Agnew
Counsel for the Second Respondent: Mr S Walpole
Solicitor for the Second Respondent: Mills Oakley

ORDERS

QUD 569 of 2023
BETWEEN:

DR CLARE ANN MCGRORY

Applicant
AND:

HORIZON ONE RECRUITMENT PTY LTD

First Respondent

DEPARTMENT OF HEALTH AND AGED CARE

Second Respondent

ORDER MADE BY:

COLLIER J

DATE OF ORDER:

23 JULY 2024

THE COURT ORDERS THAT:

1.The proceeding against the Second Respondent be dismissed for want of jurisdiction.

2.There be no order as to costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

COLLIER J:

  1. Before the Court is an interlocutory application filed by the second respondent to this proceeding on 4 April 2024, seeking to have the matter against it dismissed for want of jurisdiction, or alternatively the applicant’s Statement of Claim struck out. The applicant in the substantive proceedings, Dr McGrory, appeared in Court this morning unrepresented. Both respondents were represented by Counsel.

  2. I temporarily adjourned the proceedings to consider the interlocutory application of the second respondent. I have reached the view that the matter should be dismissed insofar as concerns the second respondent, with no order as to costs. Now follow my reasons for this decision.

    BACKGROUND

  3. On 1 December 2023…

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Details
Case
[2024] FCA 810
Decision Date

CaseChat Overview and Summary

Dr McGrory filed an application under the Fair Work Act 2009 (Cth) against Horizon One Recruitment Pty Ltd and the second respondent, alleging claims of adverse action, coercion, undue influence or pressure and misrepresentation. The second respondent was not named in Dr McGrory's application to the Fair Work Commission, nor was it named in the s 368 certificate. The court had to decide whether it had jurisdiction over the second respondent under section 370 of the Fair Work Act and whether section 570(2)(b) of the Fair Work Act applied to make an order for costs against Dr McGrory.

The court found that Dr McGrory's failure to name the second respondent in her application to the Fair Work Commission and subsequently bringing proceedings against the second respondent in the Federal Court of Australia pursuant to section 370 of the Fair Work Act was an "unreasonable act or omission" for the purposes of section 570 of the Fair Work Act. The court also found that the meaning of "dispute" in section 370 of the Fair Work Act was limited to the dispute as it was presented in the application to the Fair Work Commission, which did not include the second respondent. The court dismissed the proceeding against the second respondent for want of jurisdiction, with no order as to costs.

The court found that the second respondent was not named in Dr McGrory's application to the Fair Work Commission, nor was it named in the s 368 certificate. The court found that the second respondent was not a party to the dispute as it was presented in the application to the Fair Work Commission. The court found that the second respondent was not a party to the dispute as it was presented in the application to the Fair Work Commission and that the failure to name the second respondent in the application to the Fair Work Commission and subsequently bringing proceedings against the second respondent in the Federal Court of Australia pursuant to section 370 of the Fair Work Act was an "unreasonable act or omission" for the purposes of section 570 of the Fair Work Act. The court dismissed the proceeding against the second respondent for want of jurisdiction, with no order as to costs.

Orders

Orders of the court

1. The proceeding against the Second Respondent be dismissed for want of jurisdiction.

2. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

I temporarily adjourned the proceedings to consider the interlocutory application of the second respondent. I have reached the view that the matter should be dismissed insofar as concerns the second respondent, with no order as to costs. Now follow my reasons for this decision.BACKGROUND On 1 December 2023 the applicant in this proceeding, Dr McGrory, filed an originating application under the Fair Work Act 2009 (Cth) making claims of adverse action, coercion, undue influence or pressure and misrepresentation against the first and second respondents. To date, no evidence of Dr McGrory has been filed in this proceeding. Her statement of claim filed on 1 December 2023 however sets out her concerns at length. It does not appear to be in dispute that Dr McGrory had a contract of employment with the first respondent (Horizon One) signed 15 June 2023. It further does not appear contentious that Horizon One, which I understand conducts a business as a recruitment agency, placed Dr McGrory as a statistician with its client – the second respondent – on or about 19 June 2023. Ms Robyn White, the Assistant Secretary of the People Branch of the second respondent, deposed in her affidavit dated 27 March 2024 that the second respondent had a contractual relationship with Horizon One, and that the contract relating to the engagement of Dr McGrory with the second respondent was terminated on 14 September 2023. Dr McGrory made an application to the Fair Work Commission (in the form of a Form F8 application) dated 5 October 2023. A copy of the application is annexed to Ms White’s affidavit. Dr McGrory identifies herself as the Applicant, being “the person who has been dismissed”. In her application to the Fair Work Commission, however, Dr McGrory did not provide the legal name of the employer, as the application form required. Relevant details in the form provided by Dr McGrory were as follows:·In response to the question “1.1 What date did you begin working for the employer?” Dr McGrory stated “19 June 2023.”·In response to the question “1.2 What date were you notified of your dismissal?” Dr McGrory stated “14 September 2023.”·In response to the question “1.3 What date did your dismissal take effect?” Dr McGrory stated “15 September 2023.”·In response to the question “3.1 Describe the actions of the employer, including any reasons given for your dismissal, that have led you to make this application” Dr McGrory stated:Out of the blue I was told by the host client I worked for via HorizonOne that there would be no more hours for me. The reasons were not adequately explained and came after many odd delays since the start of my employment with them. I received nothing in writing.The procedures for termination of the contract set out in the contract I signed with the HorizonOne recruitment agency were not followed at all.·In response to the question “3.2 Which section(s) of the Fair Work Act 2009 did the employer contravene when they took, threatened or organised the above actions against you?” Dr McGrory marked as relevant ss 340, 343, and 351 of the Fair Work Act.·In response to the question “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” Dr McGrory stated:The general protections laws protect most people from harmful (adverse) action and coercion. In addition, the employer should not take or threaten to take adverse action to force an employee to do something because of their features or attributes as that constitutes discrimination.I believe what happened to me while employed under a contract by HorizonOne and working with host client the Australian Federal Government Department of Health contravenes all three prohibited actions mentioned above. Sadly, it is a pattern I have seen repeated many times before since moving to Australia, hence it is crucial to also find out who distributes this type of information and who co-ordinates the discrimination and coercion. It is an ongoing, escalting problem that has caused much devastation not just for me personally.In the lead up to me being dismissed without any cause or justification, and without the proper procedure being followed, I was finding I wasn't being allocated enough work to do in some areas or being given direction when I asked for it. This was then followed by references being made to things that remind me of early childhood traumas, although it was just treated as a joke. Then comments were made again that alluded to things that remind me of how it is often brought up jokily in the Australian workplace that me and my baby sister, and possibly some deceased/missing toddlers, had I ruined some 'engagements' as they seem to put it, for some rich Middle Eastern people, by not performing or doing enough 'work', which in that sense means refusing to perform sex acts for adults (so just to be clear as I find many here claim they don't understand these things, that includes discrimination and harassment over refusal to perform acts on them, or with other children for their entertainment, or with dogs even for them to watch and enjoy), or running away from them if they tried to entice one as a child into their car or something. These incidents that mostly get referred to in the workplace date back to the late 70s before I was born, or to the early 80s when I was at most a toddler, although the owners and ring leaders are still very much active in ongoing crimes of a similar nature. Those rich persons seemed to have been clients of some inexplicably rich kiddie party supplies business formely owned as I understand it, by an airline worker who amassed a great fortune. The key issue in relation to workplace protections though is that then I was told there was no more work for me very soon after which suggests to me that's the real underlying cause of my dismissal here. It falls into a similar pattern to workplace abuse I have previously experienced in Australian workplaces.The way I have been mistreated is shocking and it's destroying my life as the ongoing discrimination, coercive control and organised sham arrangements to bully and depress me have made it almost impossible for me to live, work and provide for my family safely here in addition to being linked to loss of family inheritance back in the 1980s and other payments and rewards for honest, lawful and hard work undertaken by me over the years since.(errors in original)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In respect of the issue of jurisdiction, Dr McGrory submitted in summary:·Although the second respondent was not explicitly named as a respondent to her application to the Fair Work Commission, or named on the s 368 certificate, the second respondent was explicitly named within Dr McGrory’s Fair Work Application Form F8, as was the first respondent.·To any reasonable person “the dispute” would be taken to mean the situation described within the Form F8 which explicitly named both respondents.·The commencement of proceedings by Dr McGrory in the Federal Court, which named both respondents, was at the suggestion of the Fair Work Commissioner.CONSIDERATION Relevant provisions of the Fair Work Act are as follows:Section 365 Application for the FWC to deal with a dismissal disputeIf:(a) a person has been dismissed; and(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part; the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.…Section 368 Dealing with a dismissal dispute (other than by arbitration)(1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).Note: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute.(2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).…(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:(a) the FWC must issue a certificate to that effect; and(b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly....Section 370 Taking a dismissal dispute to courtA 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;… Section 370(a)(ii) of the Fair Work Act was recently considered by Logan J in Kelly v Corporation of the Synod of the Diocese of Brisbane [2023] FCA 829. Section 370(a)(ii) requires that a general protections court application be made within 14 days after the day a certificate under s 368(3)(a) is issued by the Fair Work Commission. As the general protections application in Kelly v Diocese was not filed within the 14 day period, the question for Logan J to determine was whether an extension of time should be granted in line with the discretion given to the Court under s 370(a)(ii) of the Fair Work Act. Relevantly his Honour observed:44.It seems to me that these statutory conditions are not mere limitations, but rather conditions of the kind to which Dixon J referred in the passage quoted from Parisienne Basket Shoes. They are conditions in respect of the Court’s jurisdiction. They are conditions which govern whether a person is entitled to invoke the Court’s jurisdiction.(emphasis added)