Mr Eran Lande v Elbit Systems of Australia Pty Ltd T/A Elbit Systems of Australia
[2012] FWA 4503
•1 JUNE 2012
[2012] FWA 4503 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Eran Lande
v
Elbit Systems of Australia Pty Ltd T/A Elbit Systems of Australia
(U2012/4908)
COMMISSIONER JONES | MELBOURNE, 1 JUNE 2012 |
Multiple Applications.
Introduction
[1] On 10 February 2012, Mr Eran Lande (the Applicant) applied under s.394 of the Fair Work Act 2009 (the Act) for relief from unfair dismissal (unfair dismissal application).
[2] The Respondent, Elbit Systems of Australia Pty Ltd T/A Elbit Systems of Australia (Elbit Systems of Australia), filed an objection to the application under Subdivision B of Part 6-1 - Multiple Actions of the Act.
[3] The objection is that the Applicant had earlier applied, on 31 January 2012, under s.365 of Part 3.1 - General Protections of the Act for Fair Work Australia (FWA) to deal with a dispute involving dismissal.
Legislation
[4] The relevant provision of the Act are as follows:
Sections 725 and 727, Division 3 of Part 6-4 Multiple Actions provide:
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 FWA applications
(1) This section applies if:
(a) a general protections FWA 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(i) been withdrawn by the person who made the application; or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 section 369 (which provides for FWA to issue a certificate if FWA is satisfied that all reasonable attempts to resolve a dispute have been, or are likely to be, unsuccessful).
(2) A general protections FWA application is an application under section 365 for FWA to deal with a dispute that relates to dismissal.
Sections 365 and 366(1) Division 8 of Part 3-1 General Protections of the Act relevantly provide that:
365 Application for FWA to deal with a 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 FWA for FWA to deal with the dispute.
366 Time for application
(1) An application under section 365 must be made:
(a) within 60 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (2).
Background
[5] The facts in this matter are not disputed:
● The Applicant commenced employment with the Respondent on 15 August 2011;
● On 31 January 2012, the Applicant filed in FWA an Application for FWA to Deal with a General Protections Dispute - Form F8 (general protections application). The Form was completed by the Applicant’s solicitor and in response to question 3.1, “Did the alleged contravention involve dismissal of the Applicant...”, the “Yes” box was marked.
● The Applicant was notified of his dismissal on 22 September 2011 and the dismissal took effect on 6 February 2012;
● On 10 February 2012, the Applicant filed an unfair dismissal application
● Conciliation was conducted by FWA on 17 February 2012 in relation to the general protections application
● The Applicant’s Solicitor by correspondence dated 28 February 2012 to the Respondent’s solicitor’s stated:
“We write to advise that we sent a letter to Fair Work Australia (FWA) on 20 February 2012 seeking to amend the General Protections Dispute Application (the Application), which we filed on behalf of our client on 31 January 2012, to remove the reference to dismissal.
On 24 February 2012, FWA confirmed that the reference to dismissal in our client’s Application had been removed and that the remainder of the Application stands.”
Respondent’s Submission
[6] The Respondent submits that the Applicant was precluded by s.725 of the Act from making the unfair dismissal application and the application should accordingly be dismissed.
[7] Its Submissions are put as follows:
● S.725 is a preventative provision in the form of a statutory prohibition: Explanatory Memorandum to the Fair Work Bill 2008 (Explanatory Memorandum) at [2707].
● S.725 of the Act imposes a “personal prohibition” on a person who would otherwise seek to file an unfair dismissal proceeding: Pitrau v Barrick Mining Services Pty Ltd [2012] FWA 186.
● The Applicant has sought to obtain his remedies in respect of his dismissal.
● The Applicant’s general protections applications filed on 31 January 2012 included matters directed to the Applicant’s dismissal including:
● the allegation that the Respondent dismissed the Applicant because he was Israeli and because it wanted to make the Company "more Australian";
● that the Applicant sought various relief including for "loss of employment";
● Following the date upon which the Applicant’s dismissal took effect (6 February 2012) the Applicant filed the unfair dismissal application on 10 February 2012. This application included allegations that:
● one of the reasons for dismissal was that the Respondent wanted to make the Company "more Australian";
● the Respondent dismissed the Applicant because he was Israeli.
● At the time the Applicant filed the unfair dismissal application (on 10 February 2012) the Applicant's general protections application had not:
(a) been withdrawn; or
(b) failed for want of jurisdiction; or
(c) resulted in the issue of a certificate under section 369 of the FW Act.
● Consequently, s.725 of the Act operated to impose a statutory bar on the Applicant from filing the unfair dismissal application.
● In respect of the operation of s.725, there is no warrant for construing s.727 to apply only if a general protections claim has been validly made.
● Construing s.727 to require that an application under s.365 must be a valid application offends principles of statutory construction by:
● Reading into the provision words which are not there: JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 at [51].
● Rendering subsection 727(1)(b)(iii) otiose as the subsection would have no work to do.
[8] The Respondent submits that, whilst the unfair dismissal application was premature and susceptible to be dismissed on grounds of jurisdiction, on 10 February 2012 the application had not been dismissed, had not failed for want of jurisdiction and was not a nullity: Berowa Holdings Pty Ltd v Gordon (2006) 225 CLR 364.
Applicant’s Submission
[9] The Applicant submits that the unfair dismissal application is not statute barred by the operation of ss.725 and s.727 of the Act because the Application did not make a “general protections FWA application... under section 365”: see 727(2) of the Act.
[10] The crux of their argument is as follows:
● The General Protections Application was filed on 31 January 2012, that is, six days before the Applicant's dismissal. A "general protections FWA application" under section 365 can only be made by a "person who has been dismissed" (past tense) within the time frame allowed under section 366(1) of the Act: a time frame which starts "after the dismissal took effect" and ends 60 days later. Beasley v Australian National University[2010] FWA 7308. Therefore, the 31 January 2012 application was not "a general protections FWA application" within the meaning of section 727 or section 365.
● As a result, as at 10 February 2012 (the date of the unfair dismissal application) there was no "general protections FWA application" which had been made (within the meaning of section 727 and 365) and therefore no statutory bar to the commencement of the unfair dismissal application: Shegog v. ABC Transport Pty Ltd. 1
[11] The Applicant concedes that the decisions at first instance and on appeal in Shegog concerned the construction of s.366(1), however, it asserts that the approach to emerge from those decisions are relevant to the construction of s.725 generally. In particular, reliance is placed on the following extracts from the first instance decision of Senior Deputy President Kaufman:
[9] The applicant contends that the mere act of making an unfair dismissal application does not confer jurisdiction (sic) Fair Work Australia to deal with it. Prior to dealing with the matter Fair Work Australia must be satisfied that the requirements of section 394(2) have been met. Unless either subsection (a) or (b) has been satisfied no application has been made.
[13] I do not accept the respondent's submission that regard to the overriding objective of section 725 of the Act - “to avoid the problems that arise from ‘double-dipping’ - ” supports its contentions. That objective only arises where there have been two valid dismissal remedy applications made.
[12] It is submitted by the Applicant that the principle underlying this approach is that an application is made when it is validly made; that is when the requirements of the section are met.
[13] The Applicant submits that the decision of the High Court in Brewowa is to be distinguished on the grounds that the decision concerned the impairment of an existing common law right whereas under the general protection provisions there is no existing common law right; rather the rights are a creature of statute. The Applicant further submits that the decision of the Federal Magistrates Court of Australia is Pitrau did not concern multiple actions within the meaning of Part 6-4 of the Act but whether the application on grounds of unlawful termination was validly made.
Consideration
[14] This matter is to be resolved solely by statutory construction in circumstances where:
● A general protections application was filed in FWA alleging dismissal on 31 January 2012.
● The Applicant was dismissed on 6 February 2012.
● An unfair dismissal application was filed in FWA on 10 February 2012.
[15] There is no dispute that the general protections application alleging dismissal was flawed as a consequence of representative error. The Respondent submits that, notwithstanding this error, the Applicant is statute barred by s.725 of the Act as the general protections application was an application under s.365 of the Act and that application had not been withdrawn, failed for want of jurisdiction or resulted in the issue of a certficate. The Applicant argues that the general protections application was not validly made and it, therefore, was not an application under s.325. Consequently, the prohibition made under s.725 does not operate.
[16] In considering s.725 of the Act for the purpose of this matter I have applied the accepted principles of statutory constructions expressed in Project Blue Sky Inc v Australian Broadcasting Authority:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent". 2
[17] It is settled principle that, as a general rule, a construction which reads into a statutory provision words which are not there should be avoided 3 and statutory provisions are to be giving some meaning and practical effect.4
[18] S.725, the General Rule, prohibits a person who has been dismissed from making an application or a complaint of a kind referred to in any one of ss.726 to 732 in relation to the dismissal if any other of the sections applies.
[19] I am satisfied that the words “must not make” contained in s.725 of the Act impose a statutory bar 5 on making an application under one of the provisions of the Act referred to in subsections 726 to 732 where any other section applies.
[20] There are no specific Objects to Part 6-1 - Multiple Actions. The observations of the Full Bench in Shegog as to the purpose of s.725 (in circumstances where an unfair dismissal proceeds a general protections application) are to be noted:
The effect of that section is, inter alia, to prevent a person from ‘double-dipping’ by pursuing a general protections dispute in relation to a dismissal if they have previously made an unfair dismissal application in relation to the same dismissal, unless the latter application has been withdrawn or failed for want of jurisdiction. 6
[21] It is instructive to refer to the relevant paragraphs of the Explanatory Memorandum to the Fair Work Bill 2008 (Explanatory Memorandum).
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.
...
2710. In all cases the anti-double dipping provisions will not apply where the initial application has:
• been withdrawn; or
• failed for want of jurisdiction.
2711. This is intended to ensure that a person does not miss out on a remedy because they were unable to make a competent application for another remedy or where they have realised another remedy may be more appropriate than the remedy they initially sought.
[22] In this matter, the Applicant had been dismissed when he made an unfair dismissal application on 10 February 2012. The Applicant had earlier filed a general protections application (on 31 January 2012). An unfair dismissal application is an application referred to in s.729, hence the issue to be determined is whether s.727 applies.
[23] S.727 of the Act applies in circumstances where an application under s.365 for FWA to deal with a dispute that relates to dismissal has been made, except if:
● The application has been withdrawn by the person who made the application; or
● Failed for want of jurisdiction; or
● Resulted in the issue of a certificate under s.369.
[24] In Shegog the unfair dismissal application was made more than 14 days after the date the dismissal took effect. Senior Deputy President Kaufman held that unless an application satisfied subsections 394(2)(a) or (b) of the Act, no application had been made. As a consequence “section 725 is not triggered”. 7
[25] On appeal, the Full Bench, approved Senior Deputy President Kaufman’s approach, stating:
[11] The appellant submits that that the appeal is about the word ‘made’. That is far too narrow an approach. The word ‘made’ must be read in context. The text of s. 394(2) deals with two possible situations. First, an application for an order under Division 4 granting a remedy (an unfair dismissal remedy) can be made within 14 days after the dismissal took effect (an ‘in-time’ application.) Secondly an application can be made more than 14 days after the dismissal took effect (an ‘out of time’ application) - but only if a further period for the making of the application is allowed by FWA. If FWA has not allowed this further period, such an application cannot be made. As a matter of grammatical logic, no application has been made until allowed by FWA. 8
[26] In this case, the Applicant had not withdrawn the general protections application nor has a s.369 certificate been issued.
[27] I accept the Respondent’s submission, based as it is on a settled principle, that the exception specified in subsection 727(1)(b)(ii) must have some practical effect. Logically that exception would not have work to do if the reference to “made” in subsection (1)(a) of s.727 referred only to applications within jurisdiction. This is particularly so where subsection 727(1)(a) and (1)(b) are expressed conjunctively.
[28] I am satisfied that approaching the relevant provisions in accordance with the principles indentified at [16] and [17], s.727 is to be construed such that the exceptions specified in subsection 727(1)(b) condition the satisfaction that “a general protections FWA application has been made”.
[29] Black’s Law Dictionary (7th edition) defines the phrase “want of jurisdiction” as:
want of jurisdiction: A court’s lack of power to act in a particular way or to give certain kinds of relief. A court may have no power to act at all, may lack authority over a person or the subject matter of a lawsuit, or may have no power to act until the prerequisites for its jurisdiction have been satisfied.
[30] “Failed” is an adjective and the dictionary meaning of the verb “fail” includes “to be or become deficient or lacking; fall short...” 9 Likewise “fail” is defined in Black’s Law Dictionary (7th edition) as “1. To be deficient or unsuccessful.”
[31] It is manifest that the right of a person to apply under s.365 for FWA to deal with a dispute is contingent upon the requirement that:
● The person has been dismissed (s.365(a)); and
● The application is made within 60 days after the dismissal took effect or within such further period as FWA allows (s.365(1) and (2).
[32] In circumstances where a person makes an application under s.365 alleging he/she was dismissed in contravention of Part 3-1 but has not been dismissed, as occurred in this matter, then a requirement for the purpose of FWA exercising its power to conduct a conference (s.368) has not been met.
[33] In the circumstances, the application is deficient and FWA has no power to act.
[34] Having regard to the undisputed facts, I am satisfied that the application under s.365 of the Act filed by the Applicant on 31 January 2012 failed for want of jurisdiction.
[35] As s.727(1)(b)(ii) of the Act operates to condition s.727(1), the application was not made in the sense as found in Shegog at first instance and on appeal.
[36] In circumstances where the general protections application under s.365 of the Act failed for want of jurisdiction, s.725 does not apply. Consequently, s.725 does not have effect in respect of the Applicant’s unfair dismissal application.
[37] This approach and conclusion is consistent with the Explanatory Memorandum at [2711], that the exceptions in s.727(1)(b) are “intended to ensure that a person does not miss out on a remedy because there were unable to make a complete application”.
[38] The Respondent’s objection pursuant to s.725 of the Act is therefore dismissed. An Order to this effect will be issued today.
COMMISSIONER
Appearances:
Mr M. Champion - Counsel for the Applicant
Mr T. Jacobs - Counsel for the Respondent
Hearing details:
2012
Melbourne
May, 25
1 [2012] FWA 201, upheld on appeal in ABC Transport Pty Ltd v Shegog[2012] FWAFB 3212.
2 (1998) 194 CLR 355 at 381 to 382 per McHugh, Gummow, Kirby and Hayne JJ. See also JJ Richards per Flick J at [49] to [51].
3 Ibid at [51]
4 Project Blue Sky, Op Cit at 382; Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 per Gummow J at 574.
5 Pitrau, Op Cit at [34] in relation to s.723 of the Act.
6 [2012] FWAFB 3212 at [3]
7 [2012] FWA 101 at [14]
8 [2012] FWAFB 3212
9 The Macquarie Dictionary Online (c) Macquarie Dictionary Publishers Pty Ltd
Printed by authority of the Commonwealth Government Printer
<Price code C, PR524434>
0
6
0