Mr Ludwig Cugura v Frankston City Council & Melissa King

[2011] FWA 2292

[2011] FWA 2292

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Ludwig Cugura
v
Frankston City Council & Melissa King and others
(C2011/3810)

COMMISSIONER ROE MELBOURNE, 14 APRIL 2011

Decision - general protections dispute- jurisdiction: extension of time and multiple applications.

[1] On 28 March 2011 Mr Ludwig Cugura (the Applicant) made an application pursuant to Section 365 of the Fair Work Act 2009 (the Act) alleging contravention of Part 3-1 of the Act involving dismissal.

[2] On 6 April 2011 Macpherson and Kelly lawyers for the Frankston City Council and Melissa King, Steven Dickson, Jane Homewood and George Modrich (the Respondents) wrote to Fair Work Australia raising two jurisdictional objections to a conciliation conference being conducted pursuant to Section 368 of the Act.

[3] The two objections are firstly, that the Application is out of time and an extension has not and should not be granted, and secondly, that the Application is barred due to the operation of Section 725 in that the Applicant has made an application under the Equal Opportunity Act 1995 (Vic) (the EO Act) in relation to his dismissal.

[4] If the second jurisdictional objection is made out then the Application must be dismissed and there is no need to consider an extension of time.

[5] The sequence of events relevant to this matter can be summarised as follows:

• The Applicant was dismissed by the Frankston City Council on 3 September 2010 for gross misconduct.



• On or about 14 September 2010 the applicant filed a complaint with the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) alleging that in terminating his employment, the respondent had discriminated against him on the basis of impairment, carer and parental status in the area of employment. The Applicant sought relief relating to the termination of his employment.



• On 30 September 2010 the Respondent employer provided a response to the complaint to the VEOHRC.



• On 8 November 2010 the Applicant filed a Section 365 General Protections dispute application with Fair Work Australia in almost identical terms to the present application.



• On 9 November 2010 VEOHRC advised the Respondent employer that it had closed its file on the basis that conciliation was unlikely to be successful. Pursuant to Section 113(2) of the EO Act the Applicant had 60 days to advise that he wished to proceed with the matter in the Victorian Civil and Administrative Tribunal (VCAT).



• On 30 November 2010 Deputy President Hamilton at Fair Work Australia conciliated the Section 365 General Protections Application and issued a certificate that the matter was not resolved through conciliation which enabled the matter to proceed in the court.



• On 13 December 2010 the Applicant commenced proceedings in the Federal Magistrates Court in respect to the general protections application.



• On 14 January 2011 the VEOHRC issued a Notice of Dismissal of Complaint with respect to the VEOHRC Complaint.



• On 10 March 2011 the matter was heard by Federal Magistrate O’Sullivan.



• In the proceedings before his Honour the Applicant claimed that he had in fact withdrawn the VEOHRC complaint prior to filing the general protections application with the Federal Magistrates Court. The Applicant claimed that on 15 October 2010 he informed an employee of VEOHRC, Ms Karin Wu, that he was not pursing his complaint with the VEOHRC. A handwritten note was submitted as evidence supporting this contention.



• The parties and the Federal Magistrate proceeded on the basis that the VEOHRC complaint and the general protections dispute are both in relation to the dismissal. Therefore, the general protections dispute is statute barred unless the VEOHRC complaint was either withdrawn or failed for want of jurisdiction prior to the commencement of the Federal Magistrates Court proceedings.



• The Federal Magistrate O’Sullivan found in his decision of 25 March 2011 1 that the withdrawal of the complaint probably needed to be in writing. His Honour found that the evidence of documents from the VEOHRC supported a finding that the application was still on foot. His Honour was not convinced by the evidence produced by the Applicant of withdrawal. His Honour found that “I am not satisfied that the complaint had been withdrawn before this application was filed”.2



• His Honour also noted that the Applicant “can apply again to Fair Work Australia” pursuant to Section 366 of the Fair Work Act 2009. 3 Section 366 provides for the granting of an extension of time in exceptional circumstances. The Applicant referred to this comment of the Federal Magistrate in his new application which I am currently considering.

[6] The Respondents contend that the VEOHRC complaint has still not been withdrawn or failed due to want of jurisdiction. It was certainly the case at the time the previous application was filed with the Federal Magistrates Court on 13 December 2010. The Federal Magistrate has made this finding and I consider myself bound by that finding. However, on 14 January 2011 the VEOHRC issued a Notice of Dismissal of Complaint with respect to the VEOHRC complaint. I must consider whether or not this means that the VEOHRC complaint has been withdrawn at the time of the commencement of these proceedings, that is, 28 March 2011.

[7] I set down this matter for hearing of the jurisdictional objections on 12 April 2011. The Applicant appeared for himself. The Respondent was represented by lawyers Mr Sam Eichenbaum and Ms Michelle Dawson. The Applicant did not object and I granted leave for them to appear in this matter.

[8] The matter was part heard on 12 April 2011 and then I decided to adjourn into conference with the consent of the parties. During that conference I explored whether or not there was a prospect for resolution of the matter. At the conclusion of the conference the parties agreed that:

• Conciliation of the matter was unlikely to be successful.



• I should hand down a decision in respect to the first jurisdictional question, that is, whether or not the application is barred due to the operation of Section 725 which prevents multiple actions. The submissions in respect to this matter were fully canvassed prior to the adjournment into conference.



• I should relist the matter of whether or not an extension of time should be granted in the event that I find in favour of the Applicant in respect of the first jurisdictional objection.



• The Applicant would consider whether or not to seek to withdraw or amend his Application particularly in respect to the inclusion of named individual employees as parties given that they had not been included in his original application.



• The Applicant would provide a copy of an email withdrawing his application which he said he had sent to the VEOHRC.

[9] The Fair Work Act provides that:

“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.

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] The Fair Work Act Explanatory Memorandum states in respect to Sections 725 to 732 of the Act that:

“In all cases the anti-double dipping provisions will not apply where the initial application has been withdrawn or failed for want of jurisdiction.

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 realised another remedy may be more appropriate than the remedy they initially sought.” 4

[11] It has been accepted that the purpose of these provisions and similar but by no means identical provisions in earlier legislation is to prevent an employer from being “twice vexed”. 5 However, it should not be used to enable an employer to avoid being vexed entirely.

[12] The Equal Opportunity Act 1995 does not include any specific provision concerning withdrawal of applications. The Act provides the following at Section 113:

“What happens if conciliation is inappropriate?

113. What happens if conciliation is inappropriate?

(1) f the Commissioner does not consider it reasonably possible that a complaint may be conciliated successfully the Commissioner must notify the complainant and the respondent in writing.

(2) Within 60 days after receiving the Commissioner's notice under subsection (1), the complainant, by written notice, may require the Commissioner to refer the complaint to the Tribunal for hearing under Division 7.

(3) The Commissioner must comply with a notice from the complainant under subsection (2).

(4) If the complainant does not notify the Commissioner under subsection (2), the Commissioner may dismiss the complaint and the complainant may take no further action under this Act in relation to the subject matter of the complaint.

(5) As soon as possible after a dismissal under subsection (4), the Commissioner must, by written notice, notify the complainant and the respondent of the dismissal.”

[13] There is no evidence that the Applicant did anything after 15 October 2010 to further his VEOHRC complaint. There is no evidence that the Respondent was required to do anything further in respect to the VEOHRC complaint after 15 October 2010. The Applicant never had “his day in court” in respect to the matters associated with his dismissal through the VEOHRC action. The Respondent was never required to expend any great resources in defending itself against the VEOHRC action. A preliminary response was required and provided in respect to the VEOHRC complaint but this was only at the initial conciliation stage. The failure to actively pursue the VEOHRC application is consistent with the Applicant realising that “another remedy may be more appropriate than the remedy they initially sought”. 6

[14] After 14 January 2011 there was no possibility of the Applicant doing anything further in respect to the VEOHRC complaint as the VEOHRC had advised that the complaint was dismissed. The complaint was not dismissed due to anything other than a lack of any action or intention on the part of the Applicant to pursue it. It was not dismissed following any process or hearing. The actions of the VEOHRC in issuing a notice of dismissal was effectively an acknowledgment that the action had been discontinued or withdrawn. To require that the Applicant must send a letter of discontinuance after the Applicant and the Respondent had received the notice of dismissal from the VEOHRC would be an act of futility. It would not add any greater security against the possibility of double dipping for the Respondent.

[15] The Equal Opportunity Act 1995 recognises this would be an act of futility in that it specifically provides that “the complainant may take no further action under this Act in relation to the subject matter of the complaint”. It is clearly not possible for the Applicant to withdraw his complaint after it has been dismissed for want of prosecution. To require the Applicant to withdraw his complaint after it has been dismissed would be to require the Applicant to take “further action” in respect to the complaint.

[16] It would be contrary to the clear purpose of the legislation and the obiter comment of Federal Magistrate O’Sullivan in this closely related matter to bar the new application on the grounds of Section 725. I am satisfied that at the time of the making of this new application the Respondent is only vexed by one application. The earlier VEOHRC was not actively proceeded with and prior to the making of this new application has been effectively withdrawn by the applicant. The Applicant was specifically advised that if he failed to act within 60 days of the notice his VEOHRC complaint would be dismissed. It was the actions of the Applicant in not prosecuting the VEOHRC complaint which led to the notice of dismissal being issued by the VEOHRC on 14 January 2011. These actions constituted a withdrawal of the application by the Applicant.

[17] Subsequent to the hearing on 12 April 2011, the Applicant has filed a third Application under Section 365 of the Fair Work Act. The third application is in identical terms to the second application save for that facts that:

• the third application has been received by Fair Work Australia on 13 April 2011; and



• it excludes the named individual employees as Respondents; and



• it is accompanied by an email which firstly withdraws and amends the second application (C2011/3810) and secondly attaches an email which was sent by the Applicant to Ms Wu of the VEOHRC on 7 April 2011 “to confirm that VEOHRC File Number 3086157 regarding my complaint against Frankston City Council is withdrawn, cancelled and terminated”.

[18] I am satisfied that the Applicant took the action of filing a third Application under Section 365 in response to the strongly put submissions of Mr Eichenbaum for the Respondent at the hearing on 12 April 2011 that the Application was barred due to Section 725 because the Applicant has still not clearly withdrawn his VEOHRC application prior to the date of making the second Application under Section 365.

[19] I am therefore satisfied that if I am wrong that the second application is not barred by reason of Section 725 then I am satisfied that the third application is not barred by reason of Section 725.

[20] I will now list the matter for further hearing to determine the second question, namely do exceptional circumstances exist that would justify an extension of time?

COMMISSIONER

Appearances:

The Applicant appeared for himself.

Mr Sam Eichenbaum and Ms Michelle Dawson for the Respondent.

Hearing details:

2011
Melbourne
12 April

 1   2011 FMCA 195.

 2   Ibid at para 45.

 3   Ibid at para 44.

 4   Paras 2710 and 2711.

 5   Madgwick J in Stannard v McIntyre & Others (2004) 14 FLR 249.

 6 Fair Work Act Explanatory Memorandum, paras 2710 and 2711.

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