Mr Bjorn Thomasson v Toll Perkins Shipping

[2011] FWA 7911

[2011] FWA 7911

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.773 - Application to deal with an unlawful termination dispute

Mr Bjorn Thomasson
v
Toll Perkins Shipping
(C2011/6022)

VICE PRESIDENT WATSON SYDNEY, 16 NOVEMBER 2011

Validity of application - whether general protection court application could be made -improper communications with FWA - Fair Work Act 2009, ss 338, 674, 723, 772, 773.

Introduction

[1] On 28 September 2011 Mr Bjorn Thomasson lodged an application under s773 of the Fair Work Act 2009 (the Act) for Fair Work Australia to deal with an unlawful termination dispute regarding the dismissal from his employment by Perkins Shipping Pty Ltd (Perkins) by letter of 19 July 2011. The application was lodged in the Penrith office of the Fair Work Ombudsman and forwarded to Fair Work Australia. Perkins is based in Darwin, Northern Territory. Mr Thomasson was employed by Perkins as a marine employee on the cargo ship MV Kimberley Queen.

[2] The application was signed by Mr Thomasson and indicated contact details of his solicitor Mr Collins. The application provided no details of the alleged contravention of s772(1) of the Act as required by the Fair Work Australia Rules 2010. The application indicated that for the purposes of s723 of the Act the applicant did not consider that he cannot make a general protections court application.

[3] My Associate contacted the applicant’s representative Mr Collins to ascertain the desired location for a conference on the matter as Mr Collins is based in Katoomba, NSW. Mr Collins was unaware of the application and my Associate forwarded a copy of the application to him. On 12 October 2011 Mr Collins confirmed that he acts for Mr Thomasson in relation to the matter.

[4] My Associate also forwarded a copy of the application to Perkins. On 14 October 2011 Mr A Saundry filed a Notice of Representative Commencing to Act on behalf of Perkins and an Employer’s Response to the Application. Perkins contended that no contravention of the Act is alleged and rejected the allegation that the reasons for termination include any ground that contravenes s772(1) of the Act.

[5] Given the geographic distance between the parties I decided to convene a telephone conference to deal with the matter with the consent of the parties. A telephone conference was scheduled for 20 October 2011. On Friday 14 October 2011 my Associate was advised that Mr Collins would be unavailable on the day of the telephone conference and that Mr J St. Vincent Welch (Mr Welch) would be appearing for the Applicant. This arrangement was confirmed by Mr Welch by email to my Associate and the Respondent on 18 October 2011. At the telephone conference Mr Welch represented Mr Thomasson and Mr A Saundry represented Perkins.

[6] At the telephone conference I raised with the parties the operation of s723 of the Act and the acknowledgement in relation thereto by Mr Thomasson in his application. As Mr Welch was not prepared to deal with that matter I requested that he file a written submission in relation to s723 by Friday 28 October 2011. I subsequently agreed to an extension of time for the filing of the submission by consent of the parties to 31 October 2011.

[7] A letter dated 30 October 2011 from Mr Welch was forwarded to my Associate on 31 October 2011. The letter asserts certain matters in relation to the events leading to the termination and contested the assertion by Perkins that the reasons for termination were as stated in the termination letter. Mr Welch’s letter alleges a breach of certain provisions of s772, that Mr Thomasson was denied due process and “craves the opportunity of putting his case before a Tribunal.” There is no mention of s723 in Mr Welch’s letter.

Jurisdiction

[8] Section 723 of the Act provides:

“Unlawful Termination Applications

A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.”

[9] General protections court applications may be made by employees in relation to action taken by a constitutionally covered entity, a term which encompasses a constitutional corporation: s338. The conduct that may be subject to a general protections court application includes all of the grounds of unlawful termination in s772. It is clear therefore from these provisions that an employee of a constitutional corporation can only make a general protections court application in relation to conduct of a nature dealt with in s772 and is expressly excluded from making an unlawful termination application under s773.

[10] In this matter the application expressly concedes the lack of jurisdiction by virtue of the operation of s723 in response to a question on the form which explains the terms of s723. Mr Welch was unable to explain how there was jurisdiction when the matter was raised with him at the telephone conference. I gave him an opportunity to put written submissions on s723. However in the written submission filed on 31 October 2011 he did not deal with s723. His description of the dispute confirmed that it was of the nature of a general protections court application and included allegations of unfair treatment outside the scope of the application in any event.

[11] I do not consider it appropriate to relist the matter for a further conference of the parties. I have no alternative other than to dismiss the application.

Telephone Communications

[12] On 11 November 2011 Mr Welch telephoned my Associate at approximately 10am and left a voicemail with his return phone number. My Associate returned Mr Welch’s call and spoke with him at approximately 11.30am. He asked where the decision on the jurisdictional point was as “it has been two weeks” since he had submitted his written submission of 31 October 2011.My Associate informed him that she would advise me that Mr Welch had called and would respond when instructed to do so.

[13] At approximately 4.30 pm on 11 November 2011 my Associate received a further telephone call from Mr Welch. In the telephone conversation Mr Welch said words to the effect:

“It has been two weeks. Two weeks is too long. You tell the Vice President to get his arse into gear and to do his job. I am a taxpayer who pays his wages. You also tell him that I’ll be giving Justice Giudice a call shortly.”

Mr Welch confirmed that he wished these comments to be conveyed to me.

[14] At approximately 4.40pm Mr Welch phoned my Associate again and left a voicemail message. The message was as follows:

“My name is John St Vincent Welch and you’ve heard it before and two weeks is too long for my client. Just tell the Vice President to do what he’s paid to do and if he’s got a complaint contact me directly because I pay his salary.”

[15] At approximately 5.00pm on the same day Mr Welch again phoned my Associate and asked when the decision would be available. He said “I want an answer.”

[16] The comments to my Associate and the request that they be conveyed to me were intemperate and grossly improper. Further, they may constitute an offence under s674 of the Act.

Conclusion

[17] The application has not been validly made under the Act and is therefore dismissed.

VICE PRESIDENT WATSON

Appearances:

Mr J. St Vincent Welch for Mr Thomasson.

Mr A. Saundry for Perkins Shipping Pty Ltd

Hearing details:

2011.
Sydney
20 October.

Written submissions:

Submissions on behalf of Mr Thomasson filed on 31 October 2011.

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