Melissa Bell v Moranbah Boxing and Sporting Club

[2020] FWC 4263

[2020] FWC 4263

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Melissa Bell
v
Moranbah Boxing and Sporting Club
(U2020/7359)

COMMISSIONER HUNT BRISBANE, 19 AUGUST 2020

Application for an unfair dismissal remedy - application for substantive proceedings to be dismissed pursuant to s.587 - application made on the basis that claim has no reasonable prospects of success - contested facts – introduction of jurisdictional objections - relevance of JobKeeper scheme to maximum amount awardable - application refused.

Background

[1] On 27 May 2020, Ms Melissa Bell made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that Moranbah Boxing and Sporting Club (the Respondent) unfairly dismissed her.

[2] Ms Bell was employed by the Respondent as a casual Personal Trainer/Boxing Trainer from 16 June 2016 until 26 May 2020. She was paid an hourly rate of $46.00.

[3] In its Form F3, the Respondent did not raise any jurisdictional objections to the Commission’s jurisdiction to determine the application. It stated the reasons for the dismissal as follows:

“The Applicant was dismissed because she was retained on Jobkeeper payments, but when required to return to work declared herself unavailable, while continuing to work for another similar organisation in the same capacity, and while also launching her own business in competition with the Respondent.”

[4] A conciliation conference before a Fair Work Commission (Commission) staff conciliator was held on 2 July 2020 and the matter was allocated to my Chambers on 8 July 2020.

[5] On 10 July 2020, directions were issued to the parties. The directions required:

•  The parties to participate in a preliminary teleconference on Wednesday, 22 July 2020;

•  Ms Bell to file and serve her material by no later than Friday, 31 July 2020;

•  The Respondent to file and serve its material by no later than Friday, 21 August 2020;

•  Ms Bell to file and serve any reply material by no later than Friday, 28 August 2020; and

•  The matter to proceed to hearing by telephone at 10:00am on Tuesday, 1 September 2020.

[6] The parties participated in the preliminary teleconference on 22 July 2020, however the matter remained unresolved.

[7] In accordance with directions, Ms Bell filed and served her materials on 30 July 2020.

Application to dismiss

[8] On 31 July 2020, the Respondent filed a Form F1 making an application for the Commission to dismiss the substantive unfair dismissal application pursuant to s.587 of the Act. The basis for the application may be summarised as follows:

(a) The Respondent has determined the maximum amount Ms Bell could be awarded by the Commission as compensation and has offered that amount to Ms Bell, being an amount of $2,158.65;

(b) That amount has been calculated by the Respondent to be an amount of $239.85 per week for a period of nine weeks;

(c) Ms Bell has rejected the offer put by the Respondent, claiming a higher weekly amount plus payment of three weeks’ notice;

(d) The Respondent requested Ms Bell reconsider her offer given its assertion that compensation would not be awarded at the JobKeeper rate of $750 per week, and instead would be awarded at the average weekly earnings of $239.85 per week, and noting she was employed as a casual employee, no notice is owing;

(e) Ms Bell had not responded to the Respondent’s offer and instead has continued to file and serve her material in the proceedings, demonstrating her intention to pursue the application;

(f) Ms Bell’s submissions contend that she is entitled to 26 weeks’ pay at the JobKeeper rate;

(g) The Respondent provided to Ms Bell a two week “support payment” which it had not been required to pay, but did so on account of the facilities being closed during COVID-19 restrictions;

(h) The Commission would be required to take that payment into account if awarded compensation in the “highly unlikely event that the claim succeeded”; and

(i) The claim has no reasonable prospects of success because Ms Bell is seeking to obtain compensation for a span of time where she had declared herself unavailable to work.

The Respondent’s submissions

[9] In submissions in support of its application, the Respondent submitted the following, and curiously raised jurisdictional arguments for the first time. I note that the jurisdictional objections had not been raised in the Form F3 Employer Response, nor the Form F1 application to dismiss:

(a) The claim is without merit;

(b) The claim lacks utility as an offer of settlement superior to any order which may be made by the Commission has been rejected by Ms Bell;

(c) Ms Bell is not a person protected from unfair dismissal;

(d) The Respondent did not dismiss Ms Bell; and

(e) The actions surrounding the substantive application have rendered the relationship between the parties untenable such that no future employment was feasible.

Claim commenced without reasonable prospect of success

[10] The Respondent submitted that Ms Bell was in receipt of JobKeeper payments and was required to make herself available when the Respondent’s operations resumed after an enforced lockdown. Ms Bell declared herself unavailable but made herself available to another organisation in the same role during that time.

[11] Ms Bell’s availability to resume work for the Respondent was contingent upon the Respondent’s creche being available to care for her children so that she could instruct fitness classes. The creche was not available at that time due to restrictions, and it was not available until 22 July 2020. At least for some part the creche was available to paying clients, not staff.

[12] The Respondent submitted that limited work was available, and Ms Bell ought to have known that refusal of work might lower expectations of continuing work. Ms Bell’s failure to make herself available for work would potentially result in no further work for her “for months”. Any loss would be as a result of Ms Bell’s actions. It was submitted that commencing an unfair dismissal claim on that basis has no reasonable prospect of success and the application should be dismissed.

Ms Bell not a person protected from unfair dismissal

[13] It was conceded that Ms Bell had been engaged on a regular and systematic basis as a casual employee and had a reasonable expectation of ongoing employment in prior years and leading up to the COVID-19 crisis. The Respondent submitted that by opting to work for a third party, and declining work for the Respondent, notifying that she would only be able to work when the creche was operational, Ms Bell had severed her regular and systematic employment with the Respondent.

[14] It was submitted that Ms Bell’s actions had the effect of removing any notion that she could have a reasonable expectation of ongoing employment with the Respondent. The Respondent submitted that at the time the unfair dismissal claim was lodged, Ms Bell no longer satisfied the criteria of having regular and systematic employment, nor of having a reasonable expectation of continuing regular and systematic employment.

[15] The Respondent submitted that Ms Bell’s application should be dismissed as she is not a person protected from unfair dismissal.

[16] Further, it was submitted that when the Respondent wrote to Ms Bell as follows, it was not dismissing her as the Respondent had concluded that Ms Bell had already opted to part the company:

“Due to your lack of availability to work, we are no longer in a position to re-employ you and as per advice from the ATO we are therefore no longer eligible to collect JobKeeper payments on your behalf.”

JobKeeper payments as a consideration in compensation

[17] The Respondent submitted that Ms Bell had been ruled “ineligible” by the Australian Tax Office (ATO) for JobKeeper payments as a result of her declaring herself unavailable to work shifts. It was submitted that this was not as a result of the Respondent’s actions.

[18] In submitting what the Commission might award in compensation in the event of a finding of unfair dismissal, the Respondent stated that it would be capped at Ms Bell’s remuneration for the previous six months, but the JobKeeper payment, being approximately three times her normal earnings should not be applied, and her usual earnings pre-JobKeeper should be adopted by the Commission.

[19] The Respondent submitted a finding of unfair dismissal must be regarded as extremely unlikely, and even if such a finding was made, an award of compensation would be most unlikely. Any compensation ordered would be minimal.

Future costs application

[20] The Respondent submitted that there is authority for the Commission to make a costs order against a successful party where the party failed to agree to terms of settlement that could have led to the application being discontinued. It was submitted that where the Respondent has made a “significant” offer to settle the application, and the application is dismissed or an unfair dismissal finding is made but without an award of compensation, an applicant is in serious jeopardy of having costs awarded against them.

[21] Further, it was put that where an applicant has declined an amount which is significantly more than is awarded, an applicant might still be liable for a costs order under s.400A. The Respondent stated that this occurs “in various jurisdictions under the Calderbank principle.”

Correspondence – Respondent to Ms Bell

[22] The Respondent saw fit to provide to the Commission correspondence sent by its representative, Mr Craig Joy of Craig Joy Workplace Consulting. The correspondence was sent to Ms Bell prior to the Respondent’s application to dismiss. The correspondence was marked “without prejudice save as to costs” however the Respondent has now brought the communication to the attention of the Commission and it is now, accordingly, open correspondence. Whilst it appears that Ms Bell had forwarded such correspondence to my Chambers prior to the Respondent doing so as part of its s.587 application, the correspondence was not brought to my attention until such time as the Respondent’s application was made. I would have had no regard to Ms Bell’s forwarding of without prejudice communication sent by her in what I consider to be naivety of such convention.

[23] On 24 July 2020, the Respondent sent the following correspondence to Ms Bell:

“WITHOUT PREJUDICE SAVE AS TO COSTS:

Good afternoon

Moranbah Boxing and Sporting Club Inc have considered the position of your Unfair Dismissal claim, and note that your claim lacks any merit and will clearly be dismissed if it gets to hearing.  The Commission’s attitude during the conference should have made that perfectly clear to you.  The commission was particularly unimpressed that you could not even make yourself available for three hours a week, but managed to arrange baby-sitting and participate in a session for another party during the same period.  The Commission is not yet aware that you attended a session in company with your husband, as participants, also during the time you were declared as being unavailable.  When that becomes known to the Commission, any prospect you may have had, will be gone.

The Commission is limited to awarding compensation on the basis of lost earnings resulting from the dismissal.  Even if yours actually was a case of Unfair Dismissal, the most the Commission would be permitted to award you, would be $2,158.65 gross.  That is based on the following table:

DATE OF AVAILABILITY TO PROPOSED LAST DAY OF WORK (INCLUDING THE PROPOSED USE OF CRECHE)
Remuneration period - 12/06/20 to 23/08/20
Date of availability to last day of work before having a baby
Includes weeks of availability as per husband's roster and from the date creche reopened (06/07/20)
12/06/20 to 06/07/20 only weeks of availability as per husband's roster (2 weeks)
07/07/20 to 23/08/20 weekly basis as creche reopened on 06/07/20 (7 weeks)
9 weeks @ $239.85 = $2,158.65 - Rate based on average gross wage over 6 month period prior to COVID-19 business closure on 23/03/20
PAYMENTS ALREADY PROVIDED WITHIN THE LAST 12 MONTHS FROM THE DATE OF TERMINATION
31/03/20	$310.00	First aid and CPR course
9/03/20	$92.30	Blue Card renewal
30/03/20	$479.69	COVID-19 Support Payment - Provided by MBSC
$881.99

Our not-for-profit, community based organisation is prepared to pay you that maximum amount that you could be awarded, regardless of the fact that your claim has no prospect of succeeding, and regardless of the fact that we have incurred an additional $881.99 of costs in providing you with accreditations, and a support payment that they were under no obligation to pay to you. 

If you wish to accept this amount we give you three days to advise us to that effect.  Settlement of the claim will be subject to a Deed of Settlement, which will specify that the amount be paid to you within seven days of you signing the Deed, that the payment is in settlement of all claims arising in or out of your employment including the termination of that employment (other than claims for superannuation or workcover), that the claim and the resolution of the claim is to remain confidential between the parties, and that the parties will not disparage each other.

If you do not accept this offer we will then make application to the Commission for your claim to be dismissed on the basis that it has no reasonable prospect of success.  The commission works on the basis that if a reasonable offer is made by one party and rejected by the other, the claim can be dismissed as having no reasonable prospect of success.  The fact that we are offering the maximum that could be awarded to you, means that your claim would then be dismissed.

If the commission is not persuaded to dismiss the claim prior to hearing, we will defend the claim, and as you have heard, costs will be incurred by the Respondent.  It is very unusual for costs to be awarded against parties in the industrial commission, but there are exceptions.  In instances where a party refuses the maximum amount, it is highly likely that costs would be awarded against them.  In that event we would be seeking an order for costs against you, and we estimate that the costs of the Respondent at that point would be in order of two thousand dollars, plus the cost of making the costs application.

If you wish to accept the offer, please let us know, otherwise we will proceed as detailed above.

Yours sincerely

Craig Joy

Craig Joy Workplace Consulting”

[24] The settlement offer was rejected by Ms Bell. In her response, Ms Bell asserted that her wage prior to termination was the JobKeeper payment amount of $750 per week.

[25] On 27 July 2020, the Respondent sent the following further correspondence to Ms Bell regarding the settlement offer:

“Good afternoon

We note your response, and particularly paragraphs 6 and 7.  The compensation that can be ordered by the commission is limited to your earnings that are likely to have been payable for work performed in the six months after the dismissal.  Your JobKeeper payments had stopped due to direction of the ATO, on the basis that you had declared yourself unavailable.  Had you returned to work during the following six months you would not have been entitled to the Jobkeeper payments as your eligibility had already been revoked by the ATO.

In any case, receipt of an entitlement from the federal government is not payment for work and any compensation is therefore not based on the JobKeeper amount, but on the amount that you would actually have earned during the relevant time span, which is what our calculations are based on.  We believe it was made clear to you during the conference that any compensation would be limited to your actual earnings, not the JobKeeper amount.

With regard to your paragraph 7 in relation to notice being payable, minimum notice periods apply to full-time and part-time employees, not casuals.  You were a casual employee and therefore not entitled to notice, so that provision is not relevant to you.

You may wish to give further consideration to accepting the offer.  If not, please advise to that effect and we can instigate the necessary further steps.

Yours sincerely

Craig Joy

Craig Joy Workplace Consulting”

Correspondence – Chambers to the Respondent

[26] On 4 August 2020, my Chambers sent correspondence directing Ms Bell to file and serve submissions regarding the s.587 application by no later than 4:00pm on 6 August 2020. The correspondence further noted that:

“(a) Whilst the correspondence between the Respondent and the Applicant is marked “without prejudice save as to costs” it appears that the Respondent wishes to have the communication as open communication for the Commission’s consideration;

(b) It is inappropriate for the Respondent to suggest to the Applicant how the Commissioner conducted herself during the telephone conference on 22 July 2020.  The Commissioner will not form a view as to the merits of the matter until such time as all of the material is before the Commission and the evidence has been heard;

(c) The Respondent has made an assumption that the Commission might be limited, in considering s.392(2)(c) to the amount exclusive of JobKeeper payments.  The Commissioner notes a recent decision of Deputy President Saunders in Freebairn [2020] FWC 3915 where an award of compensation included an amount equal to JobKeeper payments.  The Commissioner notes that she is not bound to follow a decision of a single member;

(d) The Respondent, it appears, has not factored in the Commission’s ability to award an amount of superannuation.”

[27] Further submissions were received by the Respondent on 6 August 2020 and by Ms Bell on 11 August 2020. All submissions have been taken into consideration.

Relevant legislation

[28] Section 587 of the Act provides:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

Consideration

[29] The power in s.587 of the Act is discretionary. The discretion is broad and the grounds in s.587(1)(a), (b) and (c) do not limit the Commission’s power to dismiss applications for other reasons.

[30] The application presently before the Commission is that Ms Bell’s unfair dismissal application should be dismissed pursuant to s.587(1)(c), that the application has no reasonable prospects of success. The Respondent was invited to provide material and submissions relevant to such an application.

[31] In providing written submissions in support of its application, the Respondent took it upon itself to expand on the reasons why it says the application should be dismissed. Fresh jurisdictional objections were made including that Ms Bell’s casual employment was not regular and systematic and it was severed, which I understand to mean that the Respondent argues that the minimum employment period has not been met. A further jurisdictional objection was made that there had not been a dismissal at the Respondent’s initiative.

[32] I consider it extraordinary for the Respondent to make such submissions in such fashion. It did not make jurisdictional objections in its Form F3, completed with the assistance of Craig Joy Workplace Consulting, it seems, as a Form F53 was completed on the same day noting the following:

“The representative at this point is acting in a voluntary capacity, and is not a lawyer and consequently does not require permission to represent the Respondent. Should the matter proceed beyond conciliation and the representative continues to represent the Respondent, the arrangement will change to that of paid agent at that time.”

[33] Nor did the Respondent make such jurisdictional objections known to the Commission during the conference before me on 22 July 2020. If the Respondent had done so, I would have amended the directions that had been issued to the parties, requiring the Respondent to file its material first relevant to the jurisdictional objections it wished to press. Instead, the Respondent was silent on these issues in its communication with the Commission, allowed Ms Bell to file her substantive material, made this present application on 31 July 2020, and then advanced such submissions on 6 August 2020.

[34] I have had regard to the decision of Deputy President Asbury in Brown v The Trustee for Belgravia Leisure unit Trust T/A Ferny Hills Swimming Pool[2019] FWC 2181 where the Deputy President stated the following (references omitted):

“[47] Section 587(a) empowers the Commission to dismiss an application on the grounds that it is not made in accordance with the Act. This ground may generally be relevant where an application is one which the Commission has no power to entertain. However, as Vice President Hatcher observed in Munjoma v Salvation Army v Salvation Army (NSW) Property Trust as Trustee for the Social Work, regardless of whether s. 587(1)(a) is the precise source of power to dismiss a matter for want of jurisdiction or not, that power exists. His Honour also observed that for the Commission to dismiss a case for want of jurisdiction before hearing evidence is akin to civil litigation where a no-case submission is made at the outset of proceedings, and referred to the Decision of a Full Bench of the Commission in Marigene Larew Micheletto v Korowa Anglican Girls School which gave the following explanation of the exercise of that power:

“[17] In civil litigation there are circumstances in which a no-case submission may be made at the outset of proceedings and before the plaintiff's evidence commences. The court has a discretion to dismiss an application before any evidence is heard on the basis of the pleadings and other material filed by the plaintiff. In General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others (General Steel), Barwick CJ accepted that "the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion."…

[18] It is apparent that a decision to dismiss an application before the plaintiff has put its case should be reached with extreme caution and only on the basis that the application is manifestly untenable or groundless.

[19] In our view the Commission may properly dismiss an application pursuant to s.170CE(1)(a) in response to a no-case submission made before the applicant has put its case. In considering such a submission the Commission should be guided by the principles in General Steel, that is, the decision should be taken with extreme caution and only on the basis that the application is manifestly untenable.”

[48] Section 587(b) empowers the Commission to dismiss an application on the grounds that it is frivolous or vexatious. The approach to deciding whether an application is vexatious is to consider the motive of the applicant in instituting the proceeding. As Justice North observed in Nilsen v Loyal Orange Trust a proceeding will be instituted vexatiously where the predominant purpose in instituting proceedings is to harass or embarrass the other party or gain a collateral advantage. The term “frivolous” has an ordinary meaning as lacking seriousness, trifling or silly and in my view is coloured by the term “vexatious”.

[49] Section 587(c) empowers the Commission to dismiss an application on the basis that the application has no reasonable prospects of success. A conclusion that a case has no reasonable prospects of success should only be reached with extreme caution and in circumstances where it is manifestly untenable or groundless or so lacking in merit or substance as to be not reasonably arguable.

[50] It is important to note at the outset that there has been no substantive hearing in relation to the Respondent’s jurisdictional objections. Although material has been filed by the parties in relation to the jurisdictional objections the hearings to date have been in relation to the s. 399A and s. 587 applications where the Respondent has sought that the Applicant’s unfair dismissal application be dismissed. The evidence of the parties in relation to the jurisdictional objections has not been tested.”

[35] The Deputy President went on to say the following:

“[53] I am also unable to accept that the application should be dismissed on the basis that it is not made in accordance with the Act or that the Commission has no jurisdiction to entertain the application as provided in s. 587(1)(a). Whether the Applicant is a long term casual as defined in s. 12 of the Act is not to the point. The question of whether the Applicant is a person protected from unfair dismissal is determined by whether he has completed the minimum employment period. As provided in s. 384 of the Act, a period of service as a casual employee does not count towards an employee’s minimum period of employment unless the employment as a casual employee was on a regular and systematic basis and during the period of service as a casual employee the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis as provided in s. 384(2)(a) of the Act. The Respondent’s submission that it is determinative that the Applicant’s employment ceased at the conclusion of each casual engagement, is misconceived. As a Full Bench of the Commission observed in Shortland v Smiths Snackfood Co Ltd:

[11] The criteria in s.384(2)(a) make it clear that s.384 does not proceed on the basis that a casual employee’s period of employment for the purposes of the unfair dismissal remedy starts and ends with each engagement as understood in the common law of employment.

[12] Moreover, it is more than tolerably clear that s.384 is concerned with how an employee’s period of employment is calculated for the purposes of s.382(a). Section 384(2) draws a distinction between a period of service and a period of employment. It also draws a distinction between a period of continuous service and a period of service: a period of continuous service can be made up of a series of periods of service, some of which count towards the period of continuous service (ie. where the conditions in s.384(2)(a)(i) and (ii) are met) and some of which do not (ie. where one of the conditions in s.384(2)(a)(i) or (ii) is not met). It is clear from the language of s. 384(2) that an employee may have series of contiguous periods of service with an employer that may count towards a single period of employment with that employer. Any given period of service in such a contiguous series of periods of service will count towards the employee’s period of employment only if the requirements in s.384(2)(a)(i) and (ii) are met. Section 384(2) is concerned only with determining which periods of service in such a contiguous series count toward the employee’s period of employment with the employer for the purposes of s.382(a).

[13] Continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements. The gaps between individual engagements in a sequence of engagements should not be seen as interrupting the employee’s period of continuous employment within the meaning of s.384. In particular, a period of continuous service within the meaning of s.384(1) is not to be seen as broken by a period of ‘leave’ or an absence due to illness or injury.”

[54] That the Applicant was not a long term casual employee was also not relevant to the general protections application, contrary to the Respondent’s response to that application. In the present case, neither party appears to dispute that the Applicant’s employment with the Respondent has ended. The gravamen of the Respondent’s jurisdictional objections (other than the objection made on the grounds of multiple actions) is that the Applicant has not completed the minimum employment period. The determination of the objections will require consideration of when and in what circumstances the Applicant’s employment ceased. In its submissions and material filed in relation to the Applicant’s unfair dismissal application, including its response to the Applicant’s earlier general protections application, the Respondent has variously contended that:

•  The Applicant was not dismissed by the Respondent in May 2018 or at any time prior to that date and remained in the pool of casual employees who may be offered shifts by the Respondent;

•  The Applicant’s assertions that he was dismissed by email dated 30 May 2018 were false; and

•  The letter sent to the Applicant by email on 30 May 2018 (dated 24 May 2018) was sent so that there would be no doubt in the Applicant’s mind that he ceased to be an employee of the Respondent from 29 April 2018.

[55] I am not satisfied that I have all of the requisite material or the necessary assistance from the parties to form a view that the Applicant’s unfair dismissal application has no reasonable prospects of success and that it should be dealt with summarily under s. 587(1)(c). Neither party has been of assistance to the Commission. As previously stated, the Respondent has raised jurisdictional objections which are based on approbating and reprobating the Applicant’s assertions in an earlier general protections application. The Applicant has failed to comply with Directions of the Commission and when he has filed material it has not properly responded to the matters in issue. While this is partly because of the apparently contradictory position that the Respondent has taken, the Applicant’s conduct in his interactions with the Commission has left much to be desired. Notwithstanding this I have determined that I will not exercise discretion under s. 587 to summarily dismiss the Applicant’s unfair dismissal application.”

[36] Dealing with this interlocutory application, I adopt the above authorities, and consider it appropriate to tread with extreme caution in being asked to conclude that this application has no reasonable prospects of success.

[37] On the Commission’s consideration as to any award of compensation if it is so inclined to award compensation on a finding of unfair dismissal, I consider the Respondent extraordinarily presumptuous to suggest that the Commission would be limited to awarding to Ms Bell the amount of $2,158.65. The Respondent’s calculations are based on a number of assumptions including:

(a) Ms Bell’s earnings should be considered against earnings prior to COVID-19, and not at the JobKeeper rate of $750.00 per week; and

(b) The compensation awarded would not be greater than for nine weeks on account of Ms Bell’s impending childbirth.

[38] As addressed in my correspondence of 4 August 2020 to the parties, there are a number of considerations the Commission might have in making an order of compensation, including if an amount should include a JobKeeper payment, and superannuation. These are all matters that would properly be argued before me at hearing of the substantive application. It would be appropriate to have regard to s.392(2)(c) of the Act which requires the Commission to take into consideration the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed. My preliminary view is that this does not limit the Commission’s consideration that Ms Bell might have received $750 per week, if eligible for JobKeeper payments, and should instead, as submitted by the Respondent, be awarded at most $239.85 per week.

[39] I consider that the Respondent has conflated the Calderbank principle with the application to dismiss where the Commission were to find that the application has no reasonable prospect of success. Clearly, if Ms Bell were to succeed in a finding of unfair dismissal, even without being awarded a remedy of compensation, her application could never have been dismissed because it has “no reasonable prospects of success”. Simply because the Respondent wishes to offer to Ms Bell what it considers to be a “generous” sum of money that does not mean that Ms Bell’s application has no reasonable prospects of success.

[40] Relevant to the recent jurisdictional objections made by the Respondent in submissions, but not in any earlier application, when regard is had to the Full Bench authority in Shortland discussed at [34] of this decision, there is strong argument that any break does not impact on the minimum employment period. Noting that Ms Bell has served almost four years as a casual employee, it would appear prima facie that Ms Bell has met the minimum employment period. This may be further explored if the Respondent so presses at a further hearing of this matter.

[41] Relevant to the recent jurisdictional objection that the Respondent did not dismiss Ms Bell, there is a factual contest that may be explored by the Respondent if it so presses at a further hearing of this matter. The Respondent is reminded of its response at [3] where it asserted that Ms Bell’s employment was dismissed at the Respondent’s initiative.

[42] As to the potential of a future costs application, that is a consideration for another day.

[43] I consider it appropriate to conclude that the interlocutory application presently before me is without merit, and in my view, should not have been made by the Respondent. Where there is an extraordinary amount of applications presently before the Commission awaiting determination, including reserved matters, interlocutory applications as baseless as this one before me unfairly divert the Commission’s resources from attending to the determination of reserved matters.

Conclusion

[44] The application to dismiss pursuant to s.587 of the Act is dismissed.

[45] The substantive application will proceed as programmed. If the Respondent wishes to file any further material relevant to any jurisdictional objections it wishes to pursue, it will be required to do so by 21 August 2020 per the directions that have been issued.

COMMISSIONER

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