Mistie Sibraa v Government of New South Wales in the Service of the Crown
[2022] FWC 1454
•9 JUNE 2022
| [2022] FWC 1454 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Mistie Sibraa
v
Government of New South Wales in the Service of the Crown
(C2021/8942)
| DEPUTY PRESIDENT EASTON | SYDNEY, 9 JUNE 2022 |
Application to deal with contraventions involving dismissal – jurisdictional objection – employee of the Government of New South Wales in the Service of the Crown – application dismissed.
Ms Sibraa was dismissed from her employment on 7 December 2021 because she did not meet her employer’s COVID-19 vaccination requirements. Ms Sibraa worked for the New South Wales Health Service in the Murrumbidgee Local Health District and her employment appears to be subject to New South Wales Public Health Orders that required her to be vaccinated against COVID-19. Ms Sibraa alleges that her employer contravened the general protection provisions of the Fair Work Act 2009 (Cth) in dismissing her from her employment.
This decision relates to the identity of the employer, whether general protection provisions of the Fair Work Act 2009 (Cth) (FW Act) apply to the employer, and whether Ms Sibraa’s application under s.365 was properly made.
For the reasons that follow I find that the proper employer is the Government of New South Wales in the Service of the Crown, that the general protection provisions do not apply to the actions of the employer, and that Ms Sibraa’s application under the FW Act was not properly made and must be dismissed.
The Commission’s jurisdiction
The Fair Work Commission (FWC) can deal with general protection applications under s.365 of the FW Act by way of conciliation or mediation under s.368. If the FWC is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful it can issue a certificate under s.368(3). Section 370 imposes a substantial restriction[1] upon applicants by preventing a general protections court application being made unless the FWC has issued a certificate under s 368(3)(a) in relation to the dispute.
The Full Court in Coles Supply Chain v Milford (2020) 300 IR 146, [2020] FCAFC 152 (“Milford”) made the following relevant observations about the FWC’s capacity to deal with applications under s.365 and antecedent disputes about dismissal:
a)The FWC’s non-determinative powers to deal with a dispute under s.368 are only enlivened if an application is properly made under s.365. The proper making of an application under s.365 is an essential precondition to the FWC’s authority to perform its functions under s.368 (at [51]).
b)the FWC is entitled to determine the limits of its authority to deal with a dispute under s.368, although it has no authority to conclusively determine those limits (at [43]).
c)in so determining the limits of its authority the FWC may determination matters of fact (at [71]).
d)the Federal Court or the Federal Circuit Court has the power to judicially determine whether a person is entitled to make an application to the FWC (at [74]). The FW Act establishes alternative pathways for an applicant and prospective litigant and a court might decline to recognise an “application” or resulting certificate is valid when determining an objection to competency of a legal proceeding under s.370 of the FW Act (at [75]); and
e)the determination by the FWC is not authoritative in the sense of being final. If the FWC errs in determining a question upon which its authority depends, it will commit jurisdictional error by wrongfully denying that it has the authority to “deal with the dispute” under s.368 of the FW Act (at [79]).
The proper identity of the employer
Ms Sibraa commenced her proceedings on 24 December 2021, identifying “Murrumbidgee Local Health District, NSW Health” as the employer Respondent.
On 24 January 2022 a Form 8A - Response to General Protections Application was lodged which identified the “named respondent” to be “Murrumbidgee Local Health District” but clearly and unambiguously indicated that the proper employer is the “Government of New South Wales in the Service of the Crown”, referring specifically to s.115 and 116 of the Health Services Act 1997 (NSW).
In her original application Ms Sibraa identified Mr Glenn Floyd to be her representative. In his email footer Mr Floyd describes himself as “Pro Bono U.N. Reporter / Advocate”, which seems to be a reference to the fact that in March 2016 Mr Floyd wrote to the Office of the High Commissioner for Human Rights at the United Nations and received a reply acknowledging his communication.
Mr Floyd appeared for Ms Sibraa at a telephone directions hearing on 7 April 2022. Ms Sibraa, through Mr Floyd, was asked whether she wanted to amend her application to name a different entity as the employer (being the entity that has claimed from the outset to be the employer). Ms Sibraa, through Mr Floyd, declined the invitation to amend her application.
Directions were then set to program the matter for hearing. In accordance with the directions the Respondent filed detailed written submissions going to the correct identity of the employer, and written submissions spelling out its jurisdictional objection in even more detail than the already detailed response document filed earlier.
No submissions or evidence was filed by or on behalf of Ms Sibraa in response.
At the hearing Mr Floyd appeared for Ms Sibraa but did not have instructions, at least initially, about who Ms Sibraa says was the employer.
Eventually at the hearing Ms Sibraa sought to amend her application to name the ‘Government of New South Wales in the Service of the Crown’ as the Respondent. Ms Sibraa’s application to amend was granted pursuant to s.586.
Do the general protection provisions of the FW act apply to the Respondent?
As referred to above, the Respondent filed comprehensive written submissions, properly containing a detailed analysis of the relevant parts of the applicable statues: the FW Act, the Health Services Act 1997 (NSW), the Industrial Relations Act 1996 (NSW) and the Industrial Relations (Commonwealth Powers) Act 2009 (NSW).
No were filed by on behalf of Ms Sibraa.
When given the opportunity at the interlocutory hearing Mr Floyd made no submissions at all about whether or not the general protection provisions of the FW Act apply to the Respondent.
I am satisfied that, as a matter of law, the Respondent’s jurisdictional objection must be upheld.
In light of the thoroughness of the helpful submissions from the Respondent, my reasons for this finding can be shortly stated:
a)the general protection provisions are found in Part 3.1 of the FW Act;
b)Part 3.1 only applies to the extent provided by ss338-339 of the FW Act;
c)the Government of New South Wales in the Service of the Crown is not a Constitutional corporation (s.338(2)(a));
d)the Government of New South Wales in the Service of the Crown is not otherwise a constitutionally covered entity (s.338(1)(a));
e)any action taken by the Respondent is not, therefore, “action taken by a constitutionally covered entity” or any other kind of action described in s.338(1);
f)the Respondent is not a National System Employer for the purposes of s.30N of the FW Act; and therefore
g)Part 3.1 of the FW Act does not apply to the actions of the Respondent generally nor apply to the Respondent’s action in dismissing Ms Sibraa from her employment.
As such Ms Sibraa cannot properly make an application under s.365 because it is not possible for the Respondent to contravene the general protection provisions.
Accordingly, I will make an order dismissing the application.[2]
DEPUTY PRESIDENT
Appearances:
Mr G Floyd and Ms M Sibraa for the Applicant
Ms E Gruschka for the Respondent
Hearing details:
2022.
Sydney (By Video using Microsoft Teams)
June 8.
[1]Ward v St Catherine’s School [2016] FCA 790 at [3].
[2] PR742470.
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