Monir Mottaghi v Adelaide Community Healthcare Alliance Incorporated T/A the Memorial Hospital
[2012] FWA 5362
•28 JUNE 2012
[2012] FWA 5362 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Monir Mottaghi
v
Adelaide Community Healthcare Alliance Incorporated T/A The Memorial Hospital
(U2012/439)
COMMISSIONER HAMPTON | ADELAIDE, 28 JUNE 2012 |
Termination of employment - jurisdiction - whether multiple applications made - whether notification to workers compensation authority is an application or complaint in relation to applicant’s dismissal - whether Act operates to prevent unfair dismissal application being made - operation of the Workers Rehabilitation and Compensation Act 1986 (SA) discussed - not a relevant application or complaint - no double dipping - unfair dismissal application not statute barred.
BACKGROUND AND CASE OUTLINE
[1] This matter arises in the context of an application by Ms Monir Mottaghi (the applicant) seeking a remedy for an alleged unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the FW Act). The respondent is Adelaide Community Healthcare Alliance Incorporated T/A the Memorial Hospital.
[2] The respondent contends that the application is statute barred as a result of the provisions directed towards preventing multiple applications set out in Chapter 6, Part 6-1, Division 3 of the FW Act. This contention has been heard as a jurisdictional objection in advance of the conciliation and potential hearing of the substantive application.
[3] It is sufficient for present purposes to note that the applicant had been subject to a work related incapacity and made a claim pursuant to the Workers Rehabilitation and Compensation Act 1986 (SA) (the WRC Act). At some point prior to her dismissal on 17 or 20 February 2012 1 the applicant returned to work, apparently performing alternative duties. There is evidently a dispute about the applicant’s capacity and the basis of the dismissal.
[4] Following the dismissal of the applicant, United Voice, ostensibly acting on her behalf, contacted the South Australian WorkCover Corporation by phone, advised that the applicant had been dismissed and contended that this action was in breach of a particular provision of the relevant legislation; namely s.58B of the WRC Act.
[5] Section 58B of the WRC Act provides as follows:
“58B—Employer's duty to provide work or pay wages
(1) If a worker who has been incapacitated for work in consequence of a compensable disability is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer from whose employment the disability arose must provide suitable employment for the worker (the employment being employment for which the worker is fit and, subject to that qualification, so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was employed immediately before the incapacity).
Maximum penalty: $25 000.
(2) Subsection (1) does not apply if—
(a) it is not reasonably practicable to provide employment in accordance with that subsection (and the onus of establishing that lies in any legal proceedings on the employer); or
(b) the worker left the employment of that employer before the commencement of the incapacity for work; or
(c) the worker terminated the employment after the commencement of the incapacity for work; or
(e) the employer currently employs less than 10 employees, and the period that has elapsed since the worker became incapacitated for work is more than 1 year.
(3) If a worker who has been incapacitated for work in consequence of a compensable disability undertakes alternative or modified duties under employment or an arrangement that falls outside the worker's contract of service for the employment from which the disability arose, the employer must pay an appropriate wage or salary in respect of those duties unless otherwise determined by the Corporation.”
[6] The s.394 unfair dismissal application was lodged with Fair Work Australia on 5 March 2012 and this contends, amongst other matters, that the dismissal was unfair because it was due to incapacity arising from an injury which had been accepted pursuant to the WRC Act and the applicant was not afforded procedural fairness.
[7] The issue of alleged non-compliance with s.58B of the WRC Act is being investigated by the WorkCover Corporation, which is the statutory authority charged with administration of that Act.
[8] The respondent contends that the “complaint” made to the WorkCover Corporation is an application or complaint by or on behalf of the applicant in relation to her dismissal and as such falls within the scope of s.732 of the FW Act. As a result, the respondent contends that the unfair dismissal application is a multiple application which is prevented by s.725 of the FW Act.
[9] The applicant contends that there is no multiple application as contemplated by the FW Act and the respondent’s jurisdictional objection should be dismissed. The applicant led evidence from Mr Graham Young, a compliance officer employed by the WorkCover Corporation who has responsibilities, amongst other matters, to deal with issues arising under s.58B of the WRC Act including in connection with the applicant in this matter.
THE IMMEDIATE STATUTORY CONTEXT
[10] Section 725 of the FW Act provides as follows:
“725 General rule
A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.”
[11] This rule potentially applies to the s.364 unfair dismissal application in this matter by virtue of s.729 of the FW Act, which provides as follows:
“729 Unfair dismissal applications
(1) This section applies if:
(a) an unfair dismissal application has been made by the person in relation to the dismissal; and
(b) the application has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction; or
(iii) failed because FWA was satisfied that the dismissal was a case of genuine redundancy.
(2) An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal.”
[12] The respondent’s jurisdictional objection is based upon the operation of s.732 of the FW Act, which provides as follows:
“732 Applications and complaints under other laws
(1) This section applies if:
(a) an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and
(b) the application or complaint has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction.
(2) An application or complaint under another law is an application or complaint made under:
(a) a law of the Commonwealth (other than this Act); or
(b) a law of a State or Territory.
(3) For the purposes of this Subdivision, if a complaint under the Australian Human Rights Commission Act 1986 relates to a dismissal only as a result of an amendment of the complaint, the complaint is taken to be made when the complaint is amended.”
[13] For completeness, I also note that s.733 of the FW Act provides as follows:
“733 Dismissal does not include failure to provide benefits
For the purposes of this Subdivision, a reference to an application or complaint made in relation to a dismissal does not include a reference to an application or complaint made only in relation to failure by the employer concerned to provide a benefit to which the dismissed person is entitled as a result of the dismissal.”
THE RESPONDENT’S SUBMISSIONS
[14] Mr Addison, who appeared with permission for the respondent, contended as follows:
- The WRC Act is a State Act that continues to apply as a result of s.26 and s.27 of the FW Act;
- A complaint has been made on behalf of the applicant under that law;
- The complaint was made in relation to the applicant’s dismissal;
- Section 58B establishes an obligation on an employer to provide suitable duties to injured workers in certain circumstances 2;
A compliant in that regard will be subject to the normal statutory processes including investigation and determination and it does not matter that the applicant apparently does not have the capacity to raise a prosecution in her own right; and
- the complaint has not been discontinued or dismissed for want of prosecution.
[15] In terms of the approach to be taken to s.732 of the FW Act, the respondent relied upon the Full Bench decision in Ilardo v Rail Corporation of New South Wales T/A Railcorp[2010] FWAFB 6473 3 (the Ilardo appeal) and the decision in that matter at first instance. In particular, it was contended that this meant the existence of a remedy in the other application or complaint was not a relevant consideration and the provision should be applied without reading it down to include any other conditions.
[16] To the extent that the nature of s.58B is relevant, and this was not conceded by the respondent, it was argued that there was a clear nexus between the dismissal, the complaint and the issues arising from the WRC Act. Further, the prosecution or additional payments (to the worker through workers compensation payments or the employer through increased insurance costs) that might arise were also said to be a remedy for present purposes.
THE APPLICANT’S SUBMISSIONS
[17] Mr Dean, who appeared for the applicant, contended that s.58B should be considered in the context of the WRC Act generally. In that light, the provision is intended to penalise employers who fail to meet their obligation to provide suitable work to injured workers and in so doing, created additional costs for the system.
[18] The applicant further contended as follows:
- There is no remedy for the applicant from the s.58B process, only the potential for additional costs to be levied upon the employer and/or a prosecution;
- The nature of the s.58B process does not give rise to a duplication of applications or remedy and it is not capable of being discontinued by a “complainant” or failing for want of jurisdiction; and
- Section 58B does not establish a relevant jurisdiction or process as envisaged by s.732 of the FW Act.
[19] The applicant also contended that it was the clear intention of Parliament that the provisions were directed at applicants who sought to double dip on remedies 4 and that the approach urged by the respondent would mean that workers could be denied any remedy merely because they had contacted the WorkCover Corporation to advise that they had been dismissed. This, it was argued, would offend the “golden rule”; being that the words of the statute should not be applied in such a manner as to lead to unintended and absurd results that would be contrary to the statutory objects.5
CONSIDERATION
[20] The s.394 application is one of the applications contemplated by s.725 and that provision will operate to prevent its valid lodgement if any one of the other relevant sections of the FW Act applies. The notification to the WorkCover Corporation is said to fall within the scope of s.732 of the FW Act, which is one of the other relevant kinds of application or complaint for that purpose.
[21] Before dealing with the import of s.732, it is important to note the operation and context of s.58B of the WRC Act.
Section 58B and the WRC Act
[22] The WorkCover Corporation is established by the WRC Act to administer workers compensation arrangements in South Australia. It is also in effect, the insurer of most employers in relation to their liabilities under that Act. There are also a significant number of self-insurers under the WRC Act, however that is not presently relevant. 6
[23] Subject to various conditions and the payment of the initial part of a claim, the WorkCover Corporation undertakes payments to injured workers on behalf of the insured employers in return for levies (premiums) that are paid by the employers.
[24] There is a significant focus upon rehabilitation and return to work within the WRC Act. The provisions of s.58B of that Act are designed to reinforce that focus and to provide some sanction against relevant employers who do not meet their responsibilities in that context. Further, s.58B is used as a reference point by the WorkCover Corporation to penalise employers (through supplementary levies) who increase the compensation costs of the system by not meeting the suitable employment or wage payments obligation.
[25] Section 58B of the WRC Act operates, subject to the qualification of being reasonably practicable and the exclusions in s.58B(2), to require the employer of a worker who has been incapacitated for work as a consequence of a compensable disability to provide suitable employment or wages when that worker is able to return to work. The exclusions do not include where the employment has been terminated by the employer and subject to the qualifier referred to earlier, is capable of applying after such a termination of employment has taken place.
[26] There is no formal mechanism to notify the WorkCover Corporation of a suspected breach of s.58B however, an administrative arrangement has been put in place where “complaints” from workers, unions, the contracted claims manager or from within the Corporation more generally are referred to an Officer who investigates the issue. Where that Officer forms the view that a breach may have occurred, discussions with the employer concerned will be held, with the potential for a supplementary levy to be imposed and/or a prosecution to be launched. Where the Officer forms the view that there is no or insufficient substance to the allegation, following the request for any further information, no action may be taken.
[27] There is no apparent statutory or other formal capacity for a person or organisation raising the allegation to dispute the views formed by the Officer. There is also no apparent capacity to withdraw the allegation or to take a review or other proceedings in relation to the matter. The handling of the matter lies solely within the discretion of the Corporation. This is to be contrasted with a dispute about the actual entitlement to payments under the WRC Act 7 or to the imposition of supplementary levies where the relevant party has a formal right to review, and in many cases, appeal the determination made by or on behalf of the Corporation.
Does the notification to the WorkCover Corporation in this case fall within the scope of s.732 of the FW Act?
[28] It is accepted that the WRC Act is a State law that continues to operate as part of the national system. 8 It is also accepted, or at least not contended to the contrary, that United Voice advised the WorkCover Corporation of the applicant’s dismissal and its views about non-compliance with s.58B, on behalf of the applicant.
[29] The notification has not been withdrawn or failed for want of prosecution. These concepts are not in reality applicable under s.58B and I will return to this aspect shortly.
[30] On that basis, the notification to the WorkCover Corporation will preclude the unfair dismissal application if it is an application or complaint in relation to the dismissal of the applicant within the meaning of s.732 of the FW Act.
[31] The application of this provision has been subject to consideration by a Full Bench in the Ilardo appeal. 9 This was an appeal of a decision by Cargill C10 concerning a matter where an applicant employee had made an appeal under a New South Wales Act to a statutory body in relation to his dismissal, which had been rejected on merit grounds, and then sought to apply under s.394 of this Act. The Commissioner found:
“[66] It is clear that the applicant’s appeal to the TAB has been made under another law, in this case, of the State of New South Wales. The question is, is it an application or complaint in relation to his dismissal? I note that there is no definition of “application or complaint” in the FW Act. The phrase is set out in section 12, however, it merely refers back to section 732.
[67] The notice of appeal, Exhibit Respondent 3, does not contain the word “application” or the word “complaint”. However, the definition of “application” in the Macquarie Dictionary, 2nd edition, relevantly includes “the act of applying” and “a written or spoken request or appeal”.
[68] In my view, on its plain and ordinary meaning, the applicant’s notice of appeal to the TAB should be characterised as an application. It is clearly in relation to his dismissal. The claim was not withdrawn by the applicant nor did it fail for want of jurisdiction. It follows that it is an application to which section 732 applies.
[69] I do not accept that the legislation requires that, in order that a subsequent claim is barred from being made, both claims have to be of the same kind. The reference in section 725 to “of a kind” is not expressed in such a fashion.
[70] As I have found that the applicant’s appeal to the TAB is an application to which section 732 applies, by virtue of the operation of section 725, he is unable to make his present claim under section 394. In the light of this conclusion, there is no requirement for me to consider the other contentions put forward by the respondent in relation to jurisdiction or the extension of time issue.”
[32] In the Ilardo appeal, the Full Bench pointed out that the FW Act operated more broadly to prevent multiple applications and complaints than its predecessor and found as follows:
“[19] Moreover, what is evident from the following extract of the Explanatory Memorandum is that there is a clear legislative intention to set a limit on the number of remedies that an applicant can seek where multiple remedies are available:
“Clause 731 – Applications and complaints under other laws
2707. This Subdivision is intended to prevent a person ‘double-dipping’ when they have multiple potential remedies relating to a dismissal from employment by seeking to limit a person to a single remedy.
2708. Clauses 726 to 732 set out all of the potential remedies that may apply. Clause 725 is the key operative provision. It provides that if a person has made an application that falls within any of the clauses 726 to 732 then they may not bring an application that falls within any of the other clauses.”
(our emphasis)
[20] It is not contested by the party’s that Mr Ilardo’s appeal to the TAB went to a full hearing of the merits. Mr Ilardo did not withdraw that application, nor did it fail for want of jurisdiction. Rather, the TAB dismissed his appeal. Shortly after the TAB issued its decision, Mr Ilardo instructed his solicitor to lodge an application at FWA in relation to the same termination of employment that was the subject of the TAB proceedings. Presumably had Mr Ilardo’s appeal to the TAB been successful, he would not have made such an application.
[21] It is clear that it is this very act of ‘double-dipping’ that s 725 of the Act attempts to prevent. Section 725 provides that a person must not make an application in relation to their dismissal under ss 726 to 732, if those sections apply.
[22] Mr Ilardo’s unfair dismissal application at FWA was made in relation to the termination of his employment by RailCorp. It is an application for a remedy for unfair dismissal under s 394(1) of the Act and therefore it is an application within the meaning of s 729. Mr Pearce conceded that this was not a fact in contention between the parties before the Full Bench.
[23] Mr Ilardo’s previous appeal to the TAB was an application made under the Transport Appeals Board Act 1980 (NSW). It was an ‘application or complaint under another law’ being an application or complaint made under a law of a State or Territory (s. 732 of the Act). Applying the rule in s. 725, Mr Ilardo is barred from making an application of a kind referred to in s. 729 (an unfair dismissal application) as s. 732 applies.
[24] Despite the submissions of Mr Pearce, we are not persuaded that s 732 requires a further inquiry into the type of remedy sought in the previous proceedings and that that remedy is to be distinguished from the remedy sought in proceedings commenced at FWA. To interpret s 732 of the Act in this fashion would serve to add a further test to this provision that is beyond its plain and ordinary meaning and stated legislative intention.”
[33] The facts of the Ilardo appeal and this matter are significantly different given the nature and operation of s.58B of the WRC Act. However, the principles emerging from that decision are of course relevant authority.
[34] What is clear from the Full Bench is that the provision must be given its plain and ordinary meaning so as to give effect to its stated intention. That intention being to set a limit on the number of remedies that an applicant can seek where multiple remedies are available.
[35] Further, the nature of the ‘other’ application or complaint does not need to involve the same considerations or remedy as the unfair dismissal application but must be made under the other Act in relation to the relevant dismissal.
[36] Applying that approach, in my view, the s.58B notification is not an application or complaint in relation to the dismissal as contemplated by s.732 of the FW Act. My reasons for that conclusion are as follows.
[37] The terms “application” or “complaint” in s.732 are to be given their ordinary and natural meaning. Provided the complaint had discernable substance, it could probably be made orally, 11 as in this case. The approach to these concepts must also recognise that certain relevant causes of action may arise from a complaints process. A complaint dealt with under Part IIB of the Australian Human Rights Commission Act 1986 is such an example.12 This involves a complaint being made to a statutory authority about actions said to be in breach of relevant legislation. Importantly for present purposes, such a complaint is subject to a formal right under that Act to lodge the complaint and a right to have the matter ultimately advanced to a Tribunal or Court of competent jurisdiction to determine the matter. These matters are also capable of being discontinued and have a proper jurisdictional basis for their operation in relation to the complaint. In my view, these elements are also likely to be characteristics of an application or complaint that will attract the operation of s.732 of the FW Act given the legislation’s stated intention.
[38] The notification to the WorkCover Corporation and the allegation in relation to s.58B may be a “complaint” in the general sense of that term. That is certainly how it has been characterised by the WorkCover Corporation. However, there is no formal right or procedure under the WRC Act to make an application or complaint under that Act in relation to s.58B. The fact that, sensibly, the Corporation has provided an administrative process to permit parties to notify it of alleged breaches does not make such a notification an application or complaint under the WRC Act.
[39] Although s.732, and the related statutory charter, does not require comparable remedies, the stated purpose of the provision is to avoid the potential for multiple applications and remedies dealing with the dismissal. Section 58B does not involve any relevant form of remedy for the applicant. It is directed at the potential prosecution of an employer for a breach of the Act, or indirectly, the potential provision of a supplementary levy upon the employer. This may have the effect of encouraging an employer to pay wages or provide suitable employment but there is no power under that provision to direct that outcome. To the extent that a worker may also derive compensation, this arises from the operation of the WRC Act more generally and not as a remedy under s.58B.
[40] I do not accept that the potential prosecution of the employer is a benefit to the worker for present purposes.
[41] Although the notification to the WorkCover Corporation arose from the dismissal, any meaningful allegation about s.58B must relate to the duty to provide suitable employment or wages. Given that this applies irrespective of a termination by an employer, I do not consider that the notification was in relation to the dismissal, at least within the meaning of s.732 of the FW Act.
CONCLUSIONS
[42] In light of the above findings, this application is not barred by the operation of s.725 of the FW Act or the related statutory regime. The respondent’s jurisdictional objection is dismissed.
[43] The unfair dismissal application will be referred for conciliation.
COMMISSIONER
Appearances:
P Dean of United Voice for Ms Monir Mottaghi.
M Addison of counsel, with permission, for Adelaide Community Healthcare Alliance Incorporated T/A The Memorial Hospital.
Hearing details:
2012.
Adelaide:
June 19.
1 There is an apparent dispute about the date of the dismissal however it is not presently relevant.
2 Couto v P&O Catering and Services Pty Ltd AIRC Print S5929, 15 May 2000 per Larkin C.
3 [2010] FWAFB 6473, 13 September 2010 per Hamberger SDP, Hamilton DP and Simpson C.
4 Reference was made by Mr Dean to the Ilardo matters and to the Explanatory Memorandum cited by the Full Bench in that appeal.
5 The applicant referred to Grey v Pearson (1857) 6 HLC 51 and Footscray City College v Ruzicka [2007] VSCA 136 as being illustrative of the application of the so called “golden rule”.
6 Self-insurers are subject to s.58B, and the WorkCover Corporation’s role in that regard, in the same manner as other employers.
7 The SA Workers Compensation Tribunal has an extensive jurisdiction to deal with entitlements and claims made under the Act. See Part 6 and Part 6A of the WRC Act.
8 As a result of s.26 and s.27 of the FW Act.
9 See also Du v University of Ballarat[2011] FWAFB 5225, 9 August 2011 per Acton SDP, Hamilton DP and McKenna C.
10 [2010] FWA 3892.
11 See Boyce v Owen [2000] NTCA 7.
12 There are many other examples of similar statutory complaints processes of this kind including those applying under State equal opportunity and anti discrimination laws.
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