Mr Darryl Rae v Adecco Australia Pty Ltd
[2018] FWC 6029
•14 DECEMBER 2018
| [2018] FWC 6029 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Darryl Rae
v
Adecco Australia Pty Ltd
(C2018/2167)
COMMISSIONER HUNT | BRISBANE, 14 DECEMBER 2018 |
Application to deal with contraventions involving dismissal – jurisdictional objection – pre-existing application to the Australian Human Rights Commission – was pre-existing application made in relation to dismissal – application of Part 6-1 of the Fair Work Act 2009.
Introduction
[1] Mr Darryl Rae was employed by Adecco Australia Pty Ltd T/A Adecco (Adecco) on a casual on-hire basis, assigned to the Department of Human Services (DHS). He commenced in approximately February 2018. It is not disputed that Mr Rae’s employment ended on 6 April 2018.
[2] On 24 April 2018 Mr Rae made an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that he was dismissed from his employment with Adecco in contravention of the general protections provisions of the Act. Adecco is the only respondent named in the application.
[3] The Form F8 application form asks applicants to the Fair Work Commission (the Commission) the following question:
“1.5 Have you made another claim to the Commission or to any other organisation in relation to your dismissal (eg an unfair dismissal claim)?
[ ] Yes
[ ] No
The Commission cannot consider an application for a general protections remedy if you have made another claim about your dismissal, for example an unfair dismissal application or a complaint in respect of your dismissal to the Human Rights Commission. If you answered yes to question 1.5, you will need to decide which claim is the most appropriate one. If you’re unsure which is the best option for you, read the where to get help section on the cover sheet of this form.”
[4] Mr Rae placed a cross in the “No” box to state that he had not made another claim in relation to his dismissal.
Australian Human Right Commission complaint
[5] On 9 April 2018, approximately 15 days earlier than the application was made to this Commission, Mr Rae lodged a complaint to the Australian Human Rights Commission (AHRC). Mr Rae’s complaint to the AHRC alleged that he had been discriminated against and victimised by both Adecco and DHS on the grounds of his race, ethnic origin or descent as an Aboriginal man, and the imputation that Aboriginal persons are likely to have or do have a criminal record (the AHRC Complaint).
[6] Adecco has objected to Mr Rae’s application being dealt with by the Commission on the grounds that Mr Rae’s application pursuant to s.365 of the Act cannot be made due to Mr Rae’s earlier lodgement of the AHRC Complaint by virtue of the provisions set out in Part 6-1 of the Act.
[7] Mr Rae maintains that the Commission is able to deal with his present application regardless of the AHRC Complaint, as the AHRC Complaint is not made ‘in relation to his dismissal’.
Applicable legislation
[8] Section 365 of the Act states:
“365 Application for the FWC to deal with a dismissal dispute
If:
(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.”
[9] Chapter 6 of the Act contains the provisions of the Act dealing with multiple actions commenced by a single applicant. Part 6-1, Division 3, Subdivision B of the Act contains provisions preventing multiple actions from being brought in relation to a single dismissal event. Those provisions relevant to the present application are 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.”
…
“727 General protections FWC applications
(1) This section applies if:
(a) a general protections FWC application has been made by, or on behalf of, 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) resulted in the issue of a certificate under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful).
(1A) This section also applies if:
(a) a general protections FWC application has been made by, or on behalf of, 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; and
(c) a certificate in relation to the dispute has been issued by the FWC under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful); and
(d) a notification of the parties' agreement to the FWC arbitrating the dispute has been made as referred to in paragraphs 369(1)(b) and (c).
(2) A general protections FWC application is an application under section 365 for the FWC to deal with a dispute that relates to dismissal.”
…
“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.
[10] Read together, the provisions extracted above acknowledge that a person dismissed from employment may have several available options for seeking redress for their dismissal and restrict a person in that circumstance from seeking redress through multiple applications dealing with the same conduct. Once an applicant has chosen an avenue for seeking redress in relation to a dismissal from employment, they cannot seek redress related to the dismissal through another avenue while their first application or complaint has not been withdrawn or failed for want of jurisdiction.
Preparing for hearing
[11] A telephone directions conference of this matter was conducted on 13 July 2018. Directions were set following the conference for each party to provide written submissions on the jurisdictional issue arising in this matter prior to a hearing of Adecco’s objection.
[12] Adecco’s written submissions were filed to chambers on 3 August 2018. Mr Rae’s submissions were filed to chambers on 10 August 2018. At my discretion, I allowed Mr Rae a further opportunity to make written submissions regarding the jurisdictional issue as his submissions of 10 August 2018 did not sufficiently address that issue. Mr Rae’s further submissions were filed to chambers on 23 August 2018.
[13] A hearing of the jurisdictional issue in this matter was convened before me on 29 August 2018 in Brisbane. Mr Rae appeared on his own behalf and gave evidence. Ms Ceri Hohner of the FCB Group appeared for Adecco, instructed by Ms Cheryl Lee of Adecco who appeared by video-link from the Commission’s premises in Melbourne. Leave was granted for Adecco to be legally represented pursuant to s.596(1) of the Act on the grounds that the representative would allow the matter to be dealt with more efficiently, taking into account the complexity of the jurisdictional issue arising in the matter.
Matters for determination
[14] The matters for determination by the Commission are the following:
(a) what constitutes a complaint to the AHRC?
(b) was Mr Rae’s complaint to the AHRC made in relation to the dismissal?
What constitutes a complaint to the AHRC?
[15] Section 46P of the Australian Human Rights Commission Act 1986 (the AHRC Act) sets out how a complaint is lodged to the AHRC and states:
“46P Lodging a complaint
(1) A written complaint may be lodged with the Commission:
(a) alleging:
(i) that one or more acts have been done; or
(ii) that one or more omissions or practices have occurred; and
(b) alleging that those acts, omissions or practices are unlawful discrimination.
Note: Unlawful discrimination is defined in subsection 3(1).
(1A) It must be reasonably arguable that the alleged acts, omissions or practices are unlawful discrimination.
(1B) The complaint must set out, as fully as practicable, the details of the alleged acts, omissions or practices.
(2) The complaint may be lodged:
(a) by a person aggrieved by the alleged acts, omissions or practices:
(i) on that person's own behalf; or
(ii) on behalf of that person and one or more other persons who are also aggrieved by the alleged acts, omissions or practices; or
(b) by 2 or more persons aggrieved by the alleged acts, omissions or practices:
(i) on their own behalf; or
(ii) on behalf of themselves and one or more other persons who are also aggrieved by the alleged acts, omissions or practices; or
(c) by a person or trade union on behalf of one or more other persons aggrieved by the alleged acts, omissions or practices.
(3) A person who is a class member for a representative complaint is not entitled to lodge a separate complaint in respect of the same subject matter.
(4) If it appears to the Commission that:
(a) a person wishes to make a complaint under subsection (1); and
(b) the person requires assistance to formulate the complaint or to reduce it to writing;
the Commission must take reasonable steps to provide appropriate assistance to the person.”
[16] Section 46PA of the AHRC Act sets out how a complaint to the AHRC can be amended, and states:
“46PA Amendment of complaint
(1) Any complainant may at any time amend the complaint, with the leave of the President.
(2) Subsection (1) does not, by implication, limit any other power to amend the complaint.”
[17] The Australian Human Rights Commission has produced on its website an information sheet relevant to the making of a complaint. Relevant parts are extracted as follows:
“Making a complaint
• We can only accept written complaints. You can make a complaint online at [internet address]. If you prefer, you can print off a complaint form, fill it in and post it to us at [postal address] or fax it to [fax number]. We can also send you a complaint form and if necessary, we can help you to write down your complaint.
• Your complaint must be about something that could be unlawful discrimination.
• If we cannot deal with your complaint, we will explain why.
Investigation
• We will contact you to talk about your complaint and we may ask you to provide more information.
• Usually, we will contact the person or organisation you are complaining about (the respondent) and provide them with a copy of your complaint. We will ask for their comments and other information. We will let you know what they say about your complaint.
• Sometimes, we may also need to contact other people you have mentioned in your complaint and provide them with information about your complaint.
• In some cases, we may decide not to investigate or to stop investigating your complaint. If this happens, we will explain why.
• We may talk to you about trying to resolve the complaint by conciliation.”
The AHRC Complaint
[18] It is appropriate to reproduce the AHRC Complaint in full, in order to understand if Mr Rae’s AHRC Complaint was made in relation to the dismissal. Mr Rae’s answers are in bold.
“Part A – About you, the complainant
[Personal details of Applicant not extracted]
If you require assistance to participate in the complaint process, please outline the assistance you require: I have a slight hearing issue therefore I may need assistance in this area, when on the phone and in meetings.
Part B – Who is the complaint about?
Respondent 1: Adecco Recruitment
[Contact details of Respondent not extracted]
What is your relationship to this respondent? Previous employer
Respondent 2: Department of Human Services
[Contact details not extracted]
What is your relationship to this respondent? Previous Employer
Note: If you are complaining about more than two people or organisations, please provide information about each additional person or organisation. Within this complaint, I have been discriminated and victimised by both of the above listed respondents. Both of these respondents were officially notified of this unacceptable and vile conduct, however have failed to act appropriately as they are required to do so under various legislation.
Part C – What are you complaining about?
I am complaining because I believe:
I have been discriminated against because of my
…
☒ Race (this includes colour, national origin, descent or ethnic origin)
What is your race/national or ethnic origin/descent? I have been abused in relation to my Aboriginal heritage including the stereotyping that Aboriginal Australians are al [sic] criminals, that we are primitive people along with other vile and unacceptable comments.
…
☒ I have experienced racial hatred
What is your race/national or ethnic origin/descent? Australian Aboriginal
☒ I have been discriminated against in my employment because of my
☒ Criminal record
What is your criminal record? Nil, but I have been accused by the respondents of having a current record.
…
☒ My human rights have been breached by a Commonwealth government body.
☒ I have been victimised because I made, or tried to make, a complaint about discrimination
When did the alleged event(s) happen? March and April 2018
…
What happened?
Describe the events(s) that you want to complain about. We need to know what you say happened, where it happened and who was involved. Please give us all the dates and other details that you can remember.
If you are complaining about employment, please tell us when you commenced employment, your job title and whether you are still employed.
I commenced the position on 12 February 2018 on a labour hire contract where we were advised that the contract would consist of a minimum of a 12 month to possibly an 18 month time frame. The position title was Compliance Officer and I had been informed on 6 April 2018 that I was not to return to work.
Supporting documents
Please attach copies of any documents that support the claims in your complaint. For example – letters, separation certificate, doctors certificate. If you cannot do this, please tell us about the documents or other information and how this information can be obtained.
I have various forms of evidence including diary notes, emails to immediate managers and senior executive officers of both respondents, details of witnesses (who the respondents have refused to date to interview) and recordings of conversation held between myself and managers.
These are available and can be sent to the AHRC during the course of their investigations.
How do you think this complaint can be resolved?
…
I have attempted to resolve these issues with both of the respondents, however these respondents have failed to take the appropriate action in resolving the issues that I have raised by simply passing the buck between each of them. Furthermore, both respondents have failed to adhere to their own policies and relevant legislation that they must adhere to as employers.
Have you made a complaint to another organisation?
For example, a state anti-discrimination or equal opportunity agency, a worker’s compensation agency, an ombudsman or the Fair Work Commission.
☒ No
Were you referred to the Commission by another organisation?
If so, what organisation? Aboriginal and Torres Strait Islander Legal Service”
[19] Correspondence between Mr Rae and the AHRC regarding the nature of his complaint was produced over the course of this matter. Mr Rae was contacted by Ms Rachel Gieng, a Complaint Information Officer of the AHRC on 13 April 2018. Her email is below:
“Dear Darryl
I refer to your recent contact regarding your former employers, Adecco Recruitment (AR) and the Department of Human Services (DHS).
You say that you have been discriminated against and victimised by AR and DHS. You advise that you were employed in February 2018 and advised you would hold the position for 12-18 months. You advise that you were told not to return to work in April 2018. You say there has been ‘unacceptable and vile conduct’ and raise concerns of race discrimination.
The Australian Human Rights Commission can consider complaints of racial discrimination in various areas of public life including in employment as defined under the Racial Discrimination Act 1975 (Cth) (RDA). Racial discrimination may occur when someone is treated unfairly because of their race, colour, descent, national or ethnic origin.
I appreciate the concerns you raised. Unfortunately, from the information you have provided it is unclear whether the Commission’s Investigation and Conciliation Section can help you with this matter.
Unfortunately, it is not clear what information you have that would support the claim that your employment was ended because of your race. You do not appear to have set out in sufficient detail what your concerns are about (when, where and who was involved) and what information you have to demonstrate a clear link between any unfair treatment being because of your race.
I note in your complaint form you say you have evidence relevant to these allegations. If you wish to pursue this claim, please provide more information about what happened and why you believe you were denied employed [sic] because of your race.
You may wish to get some legal advice or assistance with respect to your options. You can contact:
• Jobwatch (employment) [internet address]
• Legal Aid of QLD [internet address]
• Community legal centre [internet address]
Should you have any further queries or wish to provide clarification, please advise by return email or call out National Information Service on [phone number].
Kind regards
Rachel
Complaint Information Officer
National Information Service”
[20] Mr Rae responded on 26 April 2018 as follows:
“Dear Rachel.
Firstly my apologies for the delay in my reply, After reading the application again, it appears that I have left out some vital information that will assist the Commission with the complaint.
I will now go through these points.
1. I was engaged by the Department of Human Services (DHS) by Adecce (sic) to undertake a role for a period of between 12 – 18 months. The successful applicants, including myself were not provided with a formal written contract.
2. Like employment with any other Commonwealth department (I have worked for a few in the past) a security clearance was required. This included obtaining a Police Clearance.
3. I was informed but no evidence had been supplied that I had been convicted of an offence in NSW in 2008. I did not live in that state in 2008, and have not been convicted of an offence in 2008.
4. Since 2012, I have held government security clearances with the CSIRO, Department of the Prime Minister and Cabinet and Department of Veteran’s Affairs. If a conviction was against my name it would have been identified by the above named departments.
5. I explained to both the DHS and Adecco, that this is not my conviction and that it is either a mistake of a persona with the same name.
6. I have supplied DHS and Adecco a copy of mu security clearance documents issued by the Department of the Prime Minister and Cabinet.
7. I had been contacted by DHS’s security department, Steve Mootoosami who asked me about the above.
8. During these conversations, he made comments to me (a number of them have been witnessed) that ‘all aboriginals are criminals’, that [Aboriginal peoples] ‘are primitive’ and a number of other statements that can only be considered to be vile and a breach of the APS code of conduct.
9. I reported these comments to both Adecco and DHS (including General Manager, Mr Craig Soren) on which, to date there as been no response from either party, expect a response from Adecco which stated ‘that we will not be interviewing any of your witnesses…’
10. This has not only offended me along but a large number of my team including a person who identified as an Indigenous Australian. Before leaving the organisation, this colleague advised me that she had been the subject of similar comments from a DHS staff member, whom I am not sure.
I trust that this is a clear indication of what now the complaint is about and how this can be considered to be a breach of the RDA75… [sic]”
…
[21] Approximately one hour later, a supervisor of AHRC named ‘Rebecca’ replied to Mr Rae as follows:
“Dear Darryl
Thank you for your further contact.
Can you please confirm whether you are still engaged by the Department of Human Services or wither it has ended. If it has ended, please advise why it ended?
Can you please advies (sic) when you spoke with Mr Steve Mootoosami?”
[22] Mr Rae promptly responded:
“Hi Rebecca
Thanks for your email of event date.
I am no longer with DHS after I had my contract cancelled by Adecco on 6 April 2018. I still have not had any written response from either party in relation to my complaint.
There has been several communications with Mr Mootoosami from DHS, including telephone conversations on the following dates:
[dates]…..along with a number of email communications.
I trust that this helps and if any further information in required, please let me know.
Ward regards
Darryl Rae”
[23] The following email was sent by ‘Rebecca’:
“Dear Daryl (sic)
Thanks for that. Was your contract cancelled because of this ‘criminal record’ or for another reason?”
[24] Mr Rae replied:
“Hi Rebecca
I have not been given any firm reason why the contract has been cancelled by Adecco, as they have refused to put anything in writing, however I am of the belief that it is due to the record which they cannot provide any evidence/information on and the fact that I have made a formal complaint in relation to the vilifying comments made against my race.
Regards
Darryl Rae”
[25] During the hearing on 29 August 2018, Mr Rae gave further evidence about his contact with Mr Mootoosami relevant to how Mr Mootoosami’s allegedly discriminatory conduct affected Mr Rae in his employment.
[26] The following exchange occurred relevant to Mr Rae’s requirement to undergo a criminal history check and his discussions with Mr Mootoosami: 1
Mr Rae: Commissioner, this was first brought to my attention on Friday 16 February 2018 and that is where a criminal history check undertaken by the Department of Human Services was - came back. I was then contacted on the Wednesday the 21st from Mr Steve Mootoosami and once again on the 22nd and Friday the 23rd February.
Commissioner: And what was said to you?
Mr Rae: In those conversations with Mr Mootoosami he advised me that he is a member of - or an employee of the Department of Human Services in their security branch. He said:
"A criminal history check has been made through ASIC", that's the Australian Criminal Intelligence Commission "and a record with a person of your same name and your date of birth or a similar date of birth has shown up."
I believe there was two offences - sorry, I'll just get more information here - which relates to a prosecution at Tweed Heads on 30 September 2008. There was two convictions, one is:
Use of carriage of service to menace, harass or offend and also make a false or misleading statement.
Commissioner: And what did you say?
Mr Rae: I told Mr Mootoosami to the words that "That is not me", keeping in mind that I have been an employee of the Federal Government for many, many years beforehand, including the Department of Defence, the Department of Education and Workplace Relations where Mr O'Donnell came from. ………… And also the Department of the Prime Minister and Cabinet. With that later department and also including the Department of Defence if you've got a criminal history you do not work for them.”
Commissioner: All right, so you say that occurred on the 21st, 22nd, 23rd February thereabouts?
Mr Rae: Yes, that's correct.
Commissioner: Right, so when you've ticked "Criminal record. What is your criminal record?" you've answered:
“Nil but I have been accused by the respondents of having a current record.”
Mr Rae: That's correct.
Commissioner: That's not in relation to the dismissal is it?
Mr Rae: No, not at all. If that was the case, and it is the respondent's policy, that's the Department of Human Services, if someone has a criminal record they do not employ them. They must complete and satisfy the criminal history - - -
Commissioner: Yes, but I'm only interested in the words that you used in your application?
Mr Rae: Yes…So that's when I was notified. I was not dismissed on that date.
Commissioner: Right. There's another two months, is there?
Mr Rae: Thereabouts, yes.
Ms Hohner: Commissioner, if I may make a clarification on that one?
Commissioner: Yes
Ms Hohner: Potentially I misspoke. I didn't mean to give the implication that it was immediately on the same day. While I can't give evidence in this matter I am of the understanding that those dates are approximately correct, that potentially there were discussions about the criminal record back in February. For clarification as to that timeframe, I believe it was a change in the department's policies as a difference between allowing people to work on a provisional basis until the check had been cleared to the change of policy where no employees were allowed to be onsite who didn't have a clearance. So this discussion occurred over a period of months but ultimately accumulated in the fact that because Mr Rae was accused - and I say accused because no finding has yet been made - because Mr Rae was accused of having that criminal record that is why he was removed from the assignment from the DHS, because of that record.
Commissioner: On what date was he removed?
Ms Hohner: I believe it was 4 April.
Commissioner: Yes but he's told, isn't he, on 21 February that he looks to have matched somebody with such a criminal record?
Ms Hohner: Correct, and I believe there was a process to challenge that. He made a complaint to actually have that clarified.
Commissioner: And he's still working at this time, is he?
Ms Hohner: Yes, he is still working. So I have notes from DHS that said there was various discussions and escalations of the complaint during February, March.
[27] In cross-examination Ms Hohner put to Mr Rae that his email to Ms Gieng of 26 April 2018 formed part of the AHRC Complaint, and that the matters put forward in those emails favoured that the AHRC Complaint included a complaint that Mr Rae had been discriminated against on the imputation that he must have a criminal record as a person of Aboriginal ethnicity and had been dismissed on that basis. 2 The following relevant exchange occurred:3
Ms Hohner: …if everyone has that email in front of them I’ll take them to the one on the 11:56 on 26 April.
Commissioner: Mr Rae, do you have that with you?
Mr Rae: No, I don't. I don't need it, Commissioner.
Commissioner: You don't need it?
Mr Rae: No, I don't have a copy of it in front of me.
Commissioner: You don't have a copy. Do you need a copy?
Mr Rae: I don't believe so, no.
Commissioner: You may be cross examined on that. Is that what you wish to do, Ms Hohner?
Ms Hohner: No, I don't believe so at this time. It will simply be submissions.
Commissioner: All right. Well, where you refer to something just read it out so that Mr Rae's fully aware of what you're referring to.
Ms Hohner: I can do that. So he sets out a number of bullet points, one to 10. You may recall that, Mr Rae? Bullet point 2, and I quote:
Like employment with any other Commonwealth department (I have worked for a few in the past) a security clearance was required. This included obtaining a national police clearance.
Point 3:
I was informed but no evidence had been supplied that I had been convicted of an offence in New South Wales in 2008.
Now I understand that I've made this submission previously, Commissioner, but when the supporting documents are put against the application that we have just looked through you can clearly see that the references to a criminal record or a police clearance have to relate to this event, that he was basically told that he had an offence on his record. Then if I take you to the second of his emails at 1.38 pm and I quote:
I have not been given any firm reason why the contract has been cancelled by Adecco as they have refused to put anything in writing. However I am of the belief that it is due to the record which they cannot provide.
So, ultimately here he's making a direct connection between his contract being cancelled and the criminal record he has just explained, which he alleges is not his. But otherwise he was told that this was when he was told, but no evidence was supplied, that he had been convicted of this offence - I'm sorry, I'm not sure what's wrong with the microphone - that it was linked to his contract being cancelled by Adecco. So we would say that is very clear evidence on that basis that he is making all of his submissions in regards to criminal record in relation to his dismissal; and while I understand that as we've gone through there are certainly parts of the AHC complaint that don't relate to the dismissal, and we are happy to accept that, we do refer the Commission as we did in our submissions, our written submissions of the 10th - sorry, 3 August as to the matter of Birch v Wesco Electrics.
…
Ms Hohner: So we would say that regardless of the fact that there were certainly representations that there has been vilification or I think it was something like breach of human rights by a Commonwealth body, we would say that there is also a sufficient amount of allegation here that there was a dismissal and that there was something wrong with the dismissal from a human rights or discrimination perspective because of these continuous references to a criminal record and his contract being cancelled.
Mr Rae’s submissions
[28] Mr Rae’s written submissions focused on the conduct directed toward him throughout his placement within the DHS. Mr Rae submitted that the AHRC Complaint dealt with his alleged victimisation, vilification and discrimination on the grounds of race, ethnic origin or descent and the imputation that he must have a criminal record during the period of his work with the DHS. Mr Rae submitted that his application to the Commission related only to Adecco’s withdrawal of Mr Rae from the DHS workplace, which Mr Rae submitted had been done without any reason given, and not the vilification dealt with in the AHRC Complaint.
[29] Mr Rae submitted that the present application and the AHRC Complaint also differed on the basis that the present application named only Adecco as a respondent, whereas the AHRC Complaint named Adecco and the DHS.
[30] At the hearing of this matter, Mr Rae submitted that he had not been provided with any reason for his dismissal from Adecco, while reiterating that he had been wrongly accused of having a police or criminal record. 4
[31] Mr Rae submitted that the AHRC Complaint related only to his alleged discrimination and victimisation in contravention of the Racial Discrimination Act 1975 (Cth) and not any matter dealt with under the Act. 5 In relation to the present application, Mr Rae made the following statement in his oral submissions:6
“…The matter here today is in relation to what has happened under the Fair Work legislation. Being told that I no longer have a job, that ‘You no longer work for us. We’re no longer paying you’ not the matter that’s before the (AHRC) which outlines the vilification, the discrimination. On what? An alleged criminal history, something I do not have…”
[32] Mr Rae submitted that the emails he responded to on account of being prompted by the AHRC, and the information provided therein did not form part of the AHRC Complaint. Mr Rae submitted that the information set out in the email of 26 April 2018 should be put into context with the preceding emails from the AHRC. 7
[33] Mr Rae’s submissions in respect of his emails to the AHRC were that they had been sent in response to telephone conversations that he had had with Ms Caroline Tjoa in respect of the AHRC Complaint. Mr Rae submitted that Ms Tjoa;
“…was clarifying that the matter or content of the complaint that had been lodged with the AHRC was in their jurisdiction and that there was no double up with the matter that had been lodged with the Fair Work Commission…she was simply clarifying the facts of the matter and which jurisdiction was looking at which matter. As Ms Tjoa on behalf of the AHRC was satisfied (after the two clarifying emails of mine, dated 26 April 2018 to the AHRC) the AHRC accepted my complaint…” 8
Adecco’s submissions
[34] Adecco submitted that Mr Rae’s application to the Commission could not be made due to the operation of ss.725, 727 and 732 of the Act as read together.
[35] Adecco submitted that the AHRC Complaint and the present application both named Adecco as a respondent and both related to Mr Rae’s dismissal from Adecco. Adecco submitted that Mr Rae’s present application could not be brought, having made the AHRC Complaint 10 days prior to the present application.
[36] Adecco submitted that the AHRC Complaint related to Mr Rae’s dismissal as it complained of discrimination against Mr Rae on the basis of his criminal record in his employment, following which Mr Rae was told not to return to the DHS workplace. Adecco submitted that Mr Rae had made the same assertion in the present application; that he was told not to return to the DHS workplace on the basis of a prohibited reason.
[37] Before the additional emails between Mr Rae and the AHRC were produced to my chambers by the AHRC, Adecco submitted that Mr Rae’s failure to produce those additional emails and his submissions regarding his contact with the AHRC (as outlined above at [33] and below at [40]) should at the least cast doubt on Mr Rae’s recollection of events, and may demonstrate that Mr Rae was dishonest and misled the Commission about the existence of the additional emails. Adecco submitted that Mr Rae’s failure to produce the additional emails as directed in a timeous fashion should allow the Commission to infer that the additional emails are adverse to Mr Rae’s position in respect of the jurisdictional issue.
[38] Adecco submitted that Mr Rae’s submissions regarding the telephone conversations he had had with Ms Tjoa about the AHRC Complaint were an ‘overly-convenient summary of a discussion which seemingly directly relates to the matter in dispute’.
[39] Adecco submitted that the AHRC Complaint made on 9 April 2018 was modified or supplemented by Mr Rae’s explanatory emails to the AHRC. Adecco submitted that it was not provided with a copy of the AHRC Complaint until it requested a copy from the AHRC on 10 May 2018. Adecco submitted that the copy of the AHRC Complaint was served upon it by email attaching the AHRC Complaint in a single ‘.pdf’ file, which included Mr Rae’s emails as referred to above.
[40] Adecco referred to Mr Rae’s submissions regarding his emails to the AHRC of 26 April 2018, in which he referred to the emails as “…clarifying emails of mine…”. Adecco submitted that Mr Rae himself considered that those emails as providing supplementary information in respect of the AHRC Complaint, rather than making a new complaint or substantively amending the original complaint. Adecco submitted that Mr Rae’s emails of 26 April 2018 did not constitute an amendment to the AHRC Complaint altering the date that the AHRC Complaint was made as it allegedly related to Mr Rae’s dismissal, as contemplated by s.732(3) of the Act.
[41] Adecco submitted that it was clear that the AHRC considered that Mr Rae’s emails formed part of the AHRC Complaint and those emails should be considered to form part of the AHRC Complaint.
[42] Adecco submitted that the AHRC Complaint clearly alleged that Mr Rae had been discriminated against in the course of his employment because of his alleged criminal record, and that he understood the reason that ‘the contract had been cancelled by Adecco’ was due to his alleged criminal record. Adecco submitted that the only reference in the AHRC Complaint to Mr Rae’s alleged criminal record was where Mr Rae alleged that his employment was terminated on the basis of having a criminal record. Adecco submitted that Mr Rae had not raised any circumstances in which he had been discriminated against on the basis of his alleged criminal record other than in relation to his dismissal from Adecco.
[43] It was submitted that the AHRC Complaint does not need to be solely or dominantly related to Mr Rae’s dismissal for s.725 of the Act to be enlivened. Adecco referred to the decision of the Federal Magistrates Court in Birch v Wesco Electrics (1966) Pty Ltd (Birch), 9 as authority for that proposition. Adecco submitted that both the present application and the AHRC Complaint were made ‘in relation to’ Mr Rae’s dismissal as they are expressed in similar terms, share a factual basis and both refer to Mr Rae’s discrimination on the basis of is alleged criminal record, which only relates to Mr Rae’s dismissal from Adecco.
[44] Adecco’s submissions cited the Explanatory Memorandum to the Fair Work Bill 2009, as follows: 10
“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.”
“2715. Clause 732 deals with an application or complaint under another law. This includes an application or complaint made under a law of a State or Territory. This reflects the fact that various State or Territory laws are not excluded by Part 1-3 of the Bill (Application of this Act) and national system employees could therefore seek remedies under those Acts. For example, a person whose employment has been terminated or who has been adversely treated in employment for reasons such as race, colour, sex, sexual preference, age or other discriminatory reasons could seek a remedy under a State or Territory anti-discrimination or equal opportunity law, or a remedy for contravention of general protections under Division 5 of Part 3-1 (General Protections), but not both.”
[45] Adecco submitted that the intent of Part 6-1 of the Act is clear, and has been confirmed in multiple matters before this Commission. 11 Adecco submitted that the intent of Part 6-1 mirrored the well-established principle at common law that it is an abuse of process for two actions to be brought in relation to the same facts in which the same relief is sought.12
[46] It was submitted that the language used in s.725 of the Act did not grant the Commission any discretion to permit or reject an application made contrary to s.725; where the Commission finds that an applicant has already made a claim in relation to their dismissal falling within the ambit of s.732 of the Act, s.725 of the Act has the effect that a general protections application in relation to the dismissal must not be made.
[47] Adecco submitted that any submission by Mr Rae regarding his intent to progress either the present application or the AHRC Complaint was irrelevant, given the fact that no discretion or subjective element exists under s.725 of the Act. Adecco submitted that the Commission did not have the power to restrain or injunct the AHRC Complaint; that power resides with the AHRC.
[48] It was submitted that Mr Rae had attempted during the jurisdictional hearing of this matter to allege that the AHRC Complaint included an allegation that he had been vilified by comments made to him by Adecco personnel, further to the vilification alleged against Mr Mootoosami and other employees of DHS.
[49] Adecco submitted that the AHRC Complaint made no allegation of vilification against Adecco. Adecco referred to an email it had received from the AHRC dated 4 September 2018 which stated, “The complaint as it relates to Adecco alleges criminal record discrimination’. Adecco submitted that the AHRC considered that the AHRC Complaint did not include allegations of vilification against Adecco. Adecco submitted that the AHRC’s assessment of the scope of the AHRC Complaint should be accepted by the Commission.
Line-by-line review of the AHRC Complaint
[50] During the hearing I took the parties through the AHRC Complaint and inquired as to the parties’ views as to whether Mr Rae’s responses could be said to be ‘related to the dismissal’. The following subparagraphs deal with the answers given by Mr Rae in the AHRC Complaint, and the submissions of the parties at the hearing.
(a) Within this complaint, I have been discriminated and victimised by both of the above listed respondents.
Ms Hohner: We would say it would have to be read in the context of the remainder of the complaint. That sentence alone potentially not, but in respect of the fact that both of the respondents have been listed, again the only time respondent 1 was raised was in respect of, in the applicant's words, being withdrawn from the workplace. 13
(b) Both of these respondents were officially notified of this unacceptable and vile conduct however have failed to act appropriately as they are required to do so under various legislation.
Commissioner: Now this could be about anything, couldn't it, Ms Hohner? This could be about during the employment vile things said to him or a poster on the wall. How is it in these limited sentences in relation to the dismissal?
Ms Hohner: I would agree, Commissioner. Potentially that has a wide operation. We do refer to our submissions where we say the whole complaint doesn't have to be in relation to the dismissal.
…that sentence I would say there's nothing that specifically draws it to the dismissal angle. That would potentially be more in relation to the vilification angle, but the lack of detail does make that one difficult to decide. 14
(c) I have been abused in relation to my Aboriginal heritage including the stereotyping that Aboriginal Australians are all criminals, that we are primitive people, along with other vile and other unacceptable comments.
Commissioner: How do you say, Ms Hohner, it's in relation to the dismissal?
Ms Hohner: I would not say that one is in relation to. I believe those were the comments that were allegedly made to Mr Rae. 15
(d) I have been discriminated against in my employment.
Commissioner: Ms Hohner, how is that in relation to the dismissal?
Ms Hohner: Yes, we would say that was certainly in relation to the dismissal.
Commissioner: The words put down there.
Ms Hohner: Yes.
Commissioner: How are they in relation to the dismissal? Because the question is:
I have been discriminated against in my employment.
Ms Hohner: In my employment, in relation to the termination of his employment.
Commissioner: It doesn't say that.
Ms Hohner: It doesn't. In the sense I suppose as I'm not permitted to use the context of the application it's just simply "accused by the respondents of having a criminal record". The facts that Mr Rae has provided, the only time he was accused of such record was in the events that led to dismissal in such that when he was told that he had a criminal record, rightly or wrongly, that was when he was told that he was no longer permitted to work on the site. 16
(e) My human rights have been breached by a Commonwealth Government body.
Commissioner: So that couldn't be in relation to the dismissal relevant to Adecco, could it, Ms Hohner?
Ms Hohner: No, we wouldn't say it was although I'm not quite sure what he was referring to on human rights because no explanation has been provided.
Commissioner: We don't know, but it has "been breached by a Commonwealth Government body".
Ms Hohner: Agreed. 17
(f) I have been victimised because I made or tried to make a complaint about discrimination.
…
Ms Hohner: But you're saying that the victimisation occurred from Mr Mootoosami before the 21st?
Mr Rae: It's not only Mr Mootoosami that we're talking about.
Ms Hohner: Okay, can you give me some of those examples?
Mr Rae: We're talking about Adecco employees, one who referred to me as a black cunt. How would you like me to refer to you as that?
Commissioner: All right. Thank you.
…
This person who is reported to have said that, that was Ms Jennings, was it?
Mr Rae: That's correct.
Commissioner: Thank you. All right, and do you recall when that occurred?
Mr Rae: Yes it would have been - there was quite a few conversations with Ms Jennings. Just please bear with me one moment. It would have been Thursday 1st of March, I've got one noted here. There's also note in my diary here, and this was actually witnessed by a number of people, on Tuesday 6th of March in the Valley office.
Commissioner: So is that - - -?
Mr Rae: Sorry, Wednesday 7th March in the Valley office.
Commissioner: You say that's when that occurred, do you?
Mr Rae: She referred to me that - on quite a few occasions and also - - -
Commissioner: And where did you - how did you tell Adecco about that?
Mr Rae: I contacted Adecco several times through via telephone, also in person as well and also on the 6th - sorry, my apologies. Also on the Thursday the 29th and Tuesday the 3rd, and the conversation on Tuesday the 3rd between myself, Ms Jennings and another Adecco employee was recorded.
Commissioner: All right, so you say the most offensive comment was made to you on Wednesday 7 March?
Mr Rae: Correct.
Commissioner: Yes, and you then report that to Adecco?
Mr Rae: I also reported it to DHS as it happened on their property.
…
Commissioner: All right, you answered "When did the alleged events happen?" You said "March and April 2018."?
Mr Rae: That's correct, yes.
Commissioner: All right, so what do you say about that answer there, Ms Hohner?
Ms Hohner: March and April 2018, according to the applicant the victimisation and vilification had already occurred by that point. April 2018, one of the only events being in that case was the alleged dismissal.
Commissioner: What do you say I should do with the fact that he's also identifying March?
Ms Hohner: March we understand would likely be the victimisation or the vilification. We don't say that the entirety of this complaint relates to the dismissal, so we would not submit that March relates to dismissal. But the mention of April makes it clear that the complaint is at least partially in relation to the dismissal. 18
(g) If you are complaining about employment please tell us when you commenced employment, your job title and whether you are still employed.
I commenced the position on 12 February 2018 on a labour hire contract where we were advised that the contract would consist of a minimum of 12 months to possibly an 18 month timeframe. The position title was compliance officer and I had been informed on 6 April 2018 that I was not to return to work.
Commissioner: You say that that's not in relation to the dismissal?
Mr Rae: That's not in relation to the dismissal. That was the background of the matter and that's something that the AHRC has clarified with me and I suspect that they may be in the notes that Ms ….Hohner, or Mr O’Donnell has had conversations with the AHRC about.
Commissioner: So do you say that you were answering the question that's put when you've said - you have been asked whether you are still employed and you've said:
... I had been informed on 6 April 2018 that I was not to return to work.
Mr Rae: Yes, because I was not employed at that time. I was told not to return to work nor will I be paid.
Commissioner: So how do you say, Ms Hohner, it's in relation to the dismissal?
Ms Hohner: Yes, any subsequent interpretation of this is all well and good but obviously it depends on the claim that was made at the time and I would say I understand that the paragraph immediately preceding his comment:
If you are complaining about your employment tell us whether you're still employed.
Absolutely that would be a valid background as opposed to the complaint. But if we look at the actual question which is"
What happened? Describe the events that you want to complain about.
We would say the reference of not returning to work is a reference to his dismissal.
Commissioner: In the context of "If you are complaining about employment" and then "tell us if you're still employed" and he simply does that, how do you say then that he's complaining in relation to the dismissal?
Ms Hohner: I would say that that's probably a very confusing question on this form because ultimately it asks you two questions. Now if it can be seen that Mr Rae was simply following the latter instructions we would say yes, it is background fact, nothing in relation to the complaint. However the entirety of the question to be answered includes "The events that you want to complain about".
Commissioner: Well, he couldn't leave that blank, could he?
Ms Hohner: That's correct. No. 19
(h) Please attach copies of any documents that support your complaint.
I have various forms of evidence including diary notes, emails to immediate managers and senior executive officers of both respondents, details of witnesses (who the respondents have refused to date to interview) and recordings of conversation held between myself and managers. These are available and can be sent to the AHRC during the course of their investigations.
Commissioner: It doesn't refer at all to the dismissal, does it, Ms Hohner?
Ms Hohner: No, again there's a lack of clarity. For instance "emails to immediate managers" could have been in relation to the dismissal, could have not. Because we don't have those emails, unless they are the emails actually attached to the complaint now, we cannot say that that would be in relation to the dismissal merely the possibility of such. 20
(i) How do you think this complaint could be resolved?
I have attempted to resolve these issues with both of the respondents however these respondents have failed to take the appropriate action in resolving the issues that I have raised by simply passing the buck between each of them. Furthermore both respondents have failed to adhere to their own policies and relevant legislation that they must adhere to as employers.
Commissioner: You say that doesn't relate to the dismissal, Mr Rae?
Mr Rae: No it doesn't. That just simply outlines I've tried to resolve the issues and all the issues including the vile comments, the comments from Mr Mootoosami, the incorrect identification on the police check with the relevant respondents, and that they have failed to act appropriately.
Commissioner: Thank you. Ms Hohner?
Ms Hohner: I would submit very similarly to the last paragraph for instance the reference to complying with relevant legislation. We don't know what that is. Is it discrimination legislation or is it potentially the Fair Work Act that prohibits say job protections.
Commissioner: You're welcome to ask Mr Rae what he meant when he filled that out. We need to look at these words on face value but you've got him here and you can ask him any question that you wish.
Ms Hohner: So, Mr Rae, if I could take you to the paragraph that the Commissioner has just read out starting with the word "Furthermore".
Commissioner: You're welcome to ask him any question you like on all this material that we've covered today. I'm not limiting you to just that paragraph.
Ms Hohner: Fantastic. Then if that is possible I may refer to the previous one under the title of "Supporting documents", the quote:
“I have various forms of evidence including diary notes, emails to immediate managers.”
Are you able to specify - and I understand there may be a few, but which emails you are talking about?
Mr Rae: These various emails. I don't know if you have them. The AHRC to date has not asked for them. There's various recordings, voice recordings also made and also statements from witnesses.
Ms Hohner: So in relation to voice recordings specifically, how many recordings do you have?
Mr Rae: I currently have two.
Ms Hohner: And what recordings are they of, what events?
Mr Rae: The recordings of conversations, face to face conversations.
Ms Hohner: And are you able to tell us which conversations these were?
Mr Rae: Yes, with Adecco staff. One with Ms Jennings and one with her manager.
Ms Hohner: Would that be Erica?
Mr Rae: No.
Ms Hohner: No?
Mr Rae: Ms - I can't recall her name. A Scottish lady who's based here in Brisbane.
Ms Hohner: Yes, no problem, and did either of those meetings related to discrimination?
Mr Rae: Yes.
Ms Hohner: Did either of those meetings relate to the termination of your assignment?
Mr Rae: No.
Ms Hohner: So the termination of assignment was never mentioned in either of those meetings?
Mr Rae: Not at those meetings, no. 21
Consideration
What constitutes a complaint to the AHRC?
[51] Having regard to s.46P and s.46PA of the AHRC Act, I consider that Mr Rae’s AHRC Complaint was complete when he made it to the AHRC on 9 April 2018. He made a written complaint, as required.
[52] He was asked further questions by relevant AHRC officers in the following weeks. As referred to in the information sheet provided by the AHRC, I understand this is to assist the officers determine the nature of the complaint. However, the complaint was the written form made on 9 April 2018, and at no time did Mr Rae state that he wished to obtain the leave of the President of the AHRC to amend the complaint. By virtue of s.46PA, the complaint has not been amended because I consider that:
(a) Mr Rae has not attempted to do so; and
(b) Even if he had attempted to do so, on the information before the Commission, the President of the AHRC has not granted leave pursuant to s.46PA.
[53] I do not consider that s.46P(4) applies, as I consider that Mr Rae made his complaint, and he is not a person who required assistance to formulate the complaint. He was asked for more information, but I do not consider that the further information requested by the AHRC officers, nor the information provided by Mr Rae forms part of the AHRC Complaint. I do not find that the supplementary documents, including the various emails between the various AHRC officers and Mr Rae forms part of the AHRC Complaint.
[54] If I am wrong on this point, having regard to the emails sent by Mr Rae in response to requests from the AHRC officers, I find in respect of the emails the following:
(a) the email sent on 26 April 2018 at [20] makes no reference to the employment ending, and therefore there is no reference to the dismissal.
(b) the email at [21] from the AHRC officer named Rebecca asks Mr Rae if he is still engaged, or has it ended? He was asked if the engagement had ended, why had it ended? Mr Rae simply stated a fact; his contract was cancelled by Adecco on 6 April 2018. He did not assert that it was related to the discrimination and vilification he says he was subjected to which is the AHRC Complaint.
(c) Mr Rae’s email at [24] speculates two reasons for his contract ending; he believes that it is due to DHS determining (incorrectly) that he has a criminal record, and secondly, he had made a formal complaint in relation to vilifying comments made against his race.
[55] In my view, only the statement, “…however I am of the belief that it is due to the record which they cannot provide any evidence/information on..” would be sufficiently related to the dismissal.
Relevant authorities
[56] It is not for the Commission to determine whether Mr Rae was dismissed from his employment. The Full Bench authority in Hewitt v Topero Nominees Pty Ltd T/A Michaels Camera Video Digital[2013] FWCFB 6321 (Hewitt) held that: 22
“[50]…the Commission does not need to be satisfied that an applicant has been dismissed before holding a conference under s.368 of the Act. It is sufficient that the Commission has before it an application that on its face alleged a dismissal in contravention of Part 3-1.”
[57] In Alex v Costco Wholesale Australia, Deputy President Gostencnik considered Hewitt in the context of s.725 of the Act, and stated:
“[11] … Here we are not concerned with whether any of the constituent elements of a cause of action under Part 3 – 1 of the Act are established. Rather we are concerned with whether an application under s. 365 of the Act may be made to the Commission given the prohibition in s. 725. That question goes to the jurisdiction of the Commission to deal with this application under s. 365. It does not go to any question that will determine any legal rights that the Applicant might have under Part 3 – 1 of the Act. The jurisdiction of the Commission to conduct a conference under s. 368(1) of the Act is conditional on an application being made under s. 365. As s. 725 prohibits such an application in this case, there is no power under s. 368 to conduct a conference.”
[58] In Hazledine v Wakerley & Giddings [2017] FWCFB 500 (Hazledine) a Full Bench of this Commission considered when s.725 may prevent a person from making an application under s.365 of the Act where an application or complaint had already been to the AHRC, and considered: 23
“[10] There is no dispute that Ms Hazledine lodged a complaint with the Australian Human Rights Commission (AHRC) against her former employer, Arthur J Gallagher & Co. (Aus) Limited (AJG) in relation to her dismissal, with the result that s.732 applies. There is also no dispute that Ms Hazledine subsequently made an application to the Commission under s.365 against Mr Wakerley and Mr Giddings. If that application relates to Ms Hazledine’s dismissal, there is no dispute that s.727 applies.
[11] A general protections application involving a dismissal must be made under s.365 of the Act. If such an application is made under s.365, the Commission must conduct a conference in accordance with s.368 of the Act. Put another way, the jurisdiction of the Commission to conduct a conference under s.368 of the Act is conditional on an application being made under s.365 of the Act.
[12] The expression “must not make an application” in s.725 of the Act imposes a prohibition on an applicant making a general protections application if they have already made an application or complaint of a kind to which one of ss.726-732 of the Act apply. It follows that if an applicant is prohibited by s.725 from making a general protections application under s.365 of the Act, the Commission has no jurisdiction to conduct a conference in accordance with s.368 of the Act.
[13] Accordingly, the content, structure and purpose of Subdivision B of Division 3 of Part 6-1 of the Act, read together with ss.365 and 368, support a conclusion that the Commission is empowered by s.725 to determine whether the general protections application and the relevant application or complaint under ss.726 to 732 relate to the dismissal of the applicant. [footnotes omitted]”
[59] The AHRC Complaint was made on 9 April 2018. The AHRC Complaint is an ‘application or complaint’ as contemplated by s.732 of the Act. At the time that Mr Rae made the present application under s.365 of the Act on 24 April 2018, the AHRC Complaint had not been withdrawn or failed for want of jurisdiction.
Is the AHRC Complaint in relation to the dismissal?
[60] In light of the above authorities, the only matter that remains for me to determine is whether the AHRC Complaint has been made in relation to the dismissal. If so, then Mr Rae’s application under s.365 was not ‘made’ on 24 April 2018 and cannot proceed. If not, then Mr Rae’s application under s.365 was ‘made’ and a conference under s.368 of the Act must be convened.
[61] The application of s.725 of the Act and the ambit of the words “in relation to” as they appear in s.725 of the Act was considered in the case of Birch as referred to by Adecco. In Birch, the Court stated: 24
“…in any event, the use of the phrase “in relation to” does not require exclusivity or predominance, but rather a relationship, other than a tenuous or remote relationship”.
[62] It follows that the AHRC Complaint does not need to have been made solely in relation to Mr Rae’s dismissal for ss.725 and 732 of the Act to have application. It is enough that the subject matter of the AHRC Complaint bears a relationship to Mr Rae’s dismissal, regardless of any other allegations of victimisation or vilification that may be present in the AHRC Complaint.
[63] Having undertaken a thorough, line-by-line of Mr Rae’s responses within the AHRC Complaint, for the reasons below, I am not satisfied that the AHRC Complaint has been made in relation to the dismissal.
[64] The respondent was provided with every opportunity to demonstrate which particular answers within the AHRC Complaint relate to the dismissal, and as can be seen at [50] above, there were numerous concessions that the words used by Mr Rae did not necessarily relate to the dismissal. The respondent implored the Commission to read the complaint as a whole document.
[65] In my view, the respondent’s submissions are essentially that the Commission should make inferences relevant to the answers given by Mr Rae within the AHRC Complaint. The Commission is not, however, to make inferences. On examination of each of the answers given by Mr Rae in the AHRC Complaint, he certainly discussed his employment. The only reference he made to his employment having ended was when he was asked if he was complaining about his employment, when he commenced, his job title, and whether he was still employed or not?
[66] It is important that Mr Rae’s reference to his employment in his AHRC Complaint is not conflated with his dismissal.
[67] Mr Rae answered the question in a most appropriate manner. He stated that he commenced on 12 February 2018 on a labour hire contract; he was advised it would consist of a minimum 12 month period; his position was compliance officer, and he was informed on 6 April 2018 that he was not to return to work.
[68] It would not have been appropriate for Mr Rae to decline to answer the question. If all complainants to the AHRC answering this question relevant to their employment were automatically barred from bringing an application before this Commission, because the question asks the person to nominate if they are still employed, that would be a travesty. The question posed by the AHRC is relevant to a complaint about the person’s employment. Mr Rae has properly answered that his complaint is in relation to his employment.
[69] I do not accept that Mr Rae answering ‘March and April 2018’, with April 2018 being the period where the dismissal occurred to mean that the alleged event in April 2018 must mean or could mean ‘the dismissal’. Mr Rae was still being accused in April 2018 of having a criminal record which he states that he does not have.
[70] I do not find that the AHRC Complaint, being a complaint about vilification and discrimination in the employment, bares a relationship to the dismissal.
Conclusion
[71] I consider that the AHRC Complaint is an application or complaint under another law, but that it has not been made by Mr Rae in relation to the dismissal.
[72] Accordingly, I determine that there is no prohibition on Mr Rae having made his application to this Commission.
[73] The parties will be programmed to participate in a conference pursuant to s.368 of the Act.
COMMISSIONER
Appearances:
Mr Darryl Rae for the applicant, self-represented
Ms Ceri Hohner for the respondent, FCB Group
Ms Cheryl Lee for the respondent, Adecco Australia Pty Ltd
Hearing details:
29 August 2018, Brisbane
Final written submissions:
Submissions by Mr Darryl Rae, 10 August and 23 August 2018;
Submissions by Adecco Australia Pty Ltd, 3 August, 5 September and 4 October 2018
Printed by authority of the Commonwealth Government Printer
<PR700857>
1 PN113 – PN119.
2 PN304.
3 PN306 – PN320.
4 PN472 – PN474.
5 PN481 – PN482.
6 PN482.
7 PN483 – PN484.
8 Submissions of Mr Darryl Rae, received 31 August 2018.
9 [2012] FMCA 5.
10 Fair Work Bill 2009, Explanatory Memorandum, [2707], [2715].
11 Ilardo v Rail Corporation New South Wales t/as Rail Corp [2010] FWA 3892; Du v University of Ballarat [2011] FWAFB 5225; Belford v Swan Transit Services Pty Ltd [2016] FWC 5201; Hazeldine v Wakerley & Giddings [2017] FWCFB 500.
12 Hu v Li-Chien Liu [2011] FMCA 21, [11].
13 PN66.
14 PN69 – PN72.
15 PN81 – PN82.
16 PN96 – PN104.
17 PN141 – 144.
18 PN193 – PN213.
19 PN218 – PN233.
20 PN238 – PN239.
21 PN244 – PN263.
22 [2013] FWCFB 6321, [50].
23 [2017] FWCFB 500, [10] – [13].
24 Above n 10, [84].
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