Mr Jack New v Edition Coffee Roasters Pty. Limited T/A Edition Coffee Roasters Pty. Limited

[2018] FWC 6594

[2018] FWC 6594

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 372 - Application to deal with other contravention disputes

Mr Jack New
v
Edition Coffee Roasters Pty. Limited T/A Edition Coffee Roasters Pty. Limited
(C2018/2814)

DEPUTY PRESIDENT SAMS SYDNEY, 30 OCTOBER 2018

Application to deal with other contraventions dispute – applicant dismissed at time of conference – subsequent application to amend s 372 application to a s 365 application – applicant’s dismissal prior to conference but after initial lodgement of s 372 application – application granted – s 368 certificate issued.

[1] On 24 May 2018, Mr Jack New (the ‘applicant’) made an application to the Fair Work Commission (the ‘Commission’) pursuant to s 372 of the Fair Work Act 2009 (the ‘Act’), alleging contraventions of the general protections provisions of the Act by his employer, Edition Coffee Roasters Pty Ltd (the ‘respondent’).

[2] Pursuant to s 374 of the Act, the matter was listed for conference on 12 June 2018. The day prior to the conference, Mr New’s Solicitor, Mr Kayte Lewis,filed an amended application. Although that application was similarly made under s 372 of the Act, it included a copy of the applicant’s dismissal letter, dated 3 June 2018. The conference proceeded the following day, but was unsuccessful in resolving the dispute between the parties.

[3] Obviously, it is apparent that Mr New’s employment had ended before the s 372 conference was convened on 12 June 2018, but after the lodgement of the application on 24 May 2018. The reasons for his dismissal are plainly connected to the contravention allegations set out in the s 372 application and that his application should have been made unders 365 of the Act.

[4] Section 365 of the Act specifies that a person who has been dismissed, may make an application alleging general protections contraventions, whereas s 372 is the means by which a person may make an application alleging general protections contraventions not involving a dismissal, usually when the applicant is employed at the time and continues in employment.

[5] Both sections are within the Act’s Chapter 3, Part 3-1, Division 8. Section 336 also within Part 3-1, sets out the Objects of the Part as follows;

336 Objects of this Part

(1) The objects of this Part are as follows:

(a) to protect workplace rights;

(b) to protect freedom of association by ensuring that persons are:

(i) free to become, or not become, members of industrial associations; and 

(ii) free to be represented, or not represented, by industrial associations; and

(iii) free to participate, or not participate, in lawful industrial activities;

(c) to provide protection from workplace discrimination;

(d) to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part.

(2) The protections referred to in subsection (1) are provided to a person (whether an employee, an employer or otherwise).

[6] At the time the conference was held on 12 June 2018 the issue of whether the application ought to have been made under s 365 of the Act was not raised by Ms Lewis or the respondent. In fact, there was a significant delay before the issue was raised. Over two months later, on 28 August 2018, Ms Lewis emailed my Chambers asking for an ‘FWA Certificate’, which I assume to be a reference to a s 368 Certificate. My Chambers emailed Ms Lewis to advise that s 368 certificates are not issued in relation to s 372 matters. Ms Lewis responded as follows:

‘[T]he matter did involve dismissal by the time it reached DP Sams.  I was surprised to be advised late yesterday that the application would have to be recommenced in FWA under a different application in order to proceed. My client certainly does not have these funds or time available to him.

I have thought under the circumstances it would have been practical to transfer the matter to a dismissal given this information was before the commission.’

[7] On 14 September 2018, my Chambers emailed the respondent seeking its view on whether the Commission ought to amend Mr New’s s 372 application to a s 365 application. To date, no reply has been received from the respondent.

[8] I am obliged to consider the provisions of s 368 of the Act, which broadly require the Commission to deal with a dismissal dispute, and to do so other than by arbitration. The trigger for the dispute to be taken further is the Commission signing a s 368 certificate of unsuccessful conciliation. I am satisfied, in all the circumstances, that the conference held by me on 12 June 2018 satisfies that obligation and further, that all reasonable attempts to resolve the dispute, have been, or are likely to be, unsuccessful.

[9] Section 586 of the Act empowers the Commission to correct or amend an application, or otherwise waive an irregularity in the form or manner in which an application is made to the Commission, with the section providing as follows:

586 Correcting and amending applications and documents etc.

The FWC may:

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; 
or 

(b) waive an irregularity in the form or manner in which an application is made to the FWC.

[10] In Dr Tareq Abu-Izneid v Charles Darwin University[2016] FWC 33191 the Full Bench of the Commission considered, inter alia, whether an application made under s 372 , could be amended such as to allow it to proceed under s 365 of the Act. The Full Bench referred to the decision in Hewitt v Topero Nominees[2013] FWC 3711 in which the Full Bench there concluded that ‘the Commission does not need to be satisfied that the applicant has been dismissed from their employment before holding a 368 conference and that it is sufficient that the Commission has before it an application that on its face alleges a dismissal in contravention of Part 3-1.’ The Full Bench directed that the relevant file ‘be amended to record that it is made under s.365 of the Act because it was apparent at the time of the application that Mr Abu-Izneid had been dismissed.’ In my view, the circumstances in this case, including the principles of natural justice, are such as to warrant the exercise of my powers to amend Mr New’s s 372 application in order to convert the application to a s 365 application alleging general protection contraventions involving dismissal. To do otherwise, would be to deny Mr New his statutory rights to pursue his general protections application in the Courts, given no s 365 application was made on his behalf, within the time limit for filing an application; being 21 days of his dismissal taking effect (s 366) and no application was made at the conference to 12 June 2018 to convert the s 372 application to a dispute involving contraventions of the general protections provisions involving dismissal.

[11] Accordingly, and having taken into account the respondent has not objected to the request to the amend the application, I grant the application to amend the application and will issue the relevant certificate, pursuant to s 368 of the Act. That certificate is issued concurrently with this decision.

DEPUTY PRESIDENT

Appearances:

K Lewis for the applicant

No appearance for the respondent

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