Mr Moreno Mioni v Department of Environment and Primary Industries

[2014] FWC 6571

[2014] FWC 6571

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Moreno Mioni
v
Department of Environment and Primary Industries
(U2014/11451)

COMMISSIONER WILSON MELBOURNE, 19 SEPTEMBER 2014

Application for relief from unfair dismissal - whether application already dealt with; Commission's jurisdiction to deal with the application.

[1] Mr Moreno Mioni has made an application (the 2014 Application) to the Fair Work Commission (the Commission) against the Department of Environment and Primary Industry, which I take to be a reference to the Department of Environment and Primary Industries (which I refer to hereafter as DEPI). The nomination of DEPI as the Respondent is apparently as successor to the Department of Sustainability and Environment, being the department from which the Applicant was dismissed.

[2] The 2014 Application was received by the Commission on 5 August 2014 and discloses a date of dismissal of 31 May 2004. The application is plainly out of time.

[3] The Commission’s Form F2 - Unfair Dismissal Application includes the following question;

1.5 Have you made another claim to the Commission or to any other organisation regarding your dismissal (e.g. a general protections application)?

The Commission cannot consider an application for an unfair dismissal remedy if you have made another claim in relation to the dismissal, for example a general protections dispute in relation to the dismissal or a complaint to the Human Rights Commission in relation to the dismissal. 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 in the cover sheet of this form.

[4] In response to that question, the Applicant answered “no”.

[5] On 15 November 2005, Commissioner Raffaelli issued a decision 1 (the 2005 Decision) refusing an extension of time for the making of an application under s.170CE of the Workplace Relations Act 1996, relating to the termination of Mr Moreno Mioni by the Department of Sustainability and Environment on 31 May 20052, which was the subject of an application by him to the Australian Industrial Relations Commission in 2005 (the 2005 Application). Section 170CE of the Workplace Relations Act 1996 provided for applications to be made to the Australian Industrial Relations Commission for “relief in respect of the termination” of an employee’s employment.

[6] Holding a concern that the 2014 Application relates to the same matter already dealt with by the Commission in the 2005 Decision, I issued a Statement to the parties indicating my concerns and gave the parties an opportunity to provide such material as they wished in response for me to consider. My Statement to the parties advised I held a concern;

● that if the Applicant in this matter is the same person as referred to in Commissioner Raffaelli’s 2005 Dcision, and the 2014 Application pertains to the same termination of employment, there is either no jurisdiction for the Commission to proceed to take any steps to hear and determine the application or, if there is jurisdiction, it may not be proper to do so; and

● that there would be no, or insufficient, basis to re-open the matter originally before Commissioner Raffaelli if the 2014 Application is an application to do that.

[7] My Statement further advised that these concerns are held separately to any consideration that may be required to be given by the Commission to the question of whether there are exceptional circumstances that would allow an extension of time for the making of the 2014 Application.

[8] I also drew the parties’ attention to the decision by the Full Bench in the matter of Spotless Cleaning Services Australia Ltd v Wookey and Topham 3. The deliberation of the Full Bench in the matter included consideration of whether (in the context of an unfair dismissal matter) the Commission had been functus officio at the time it proceeded to act. Having considered the authorities on the matter, the Full Bench noted as follows;

“[30] From our examination of the authorities we derive the following considerations:

• the act of re-opening a case is an exceptional step;



• whether or not a decision of an administrative tribunal means that the power to make a decision is spent will depend on the legislation under which the decision-maker is acting;



• a tribunal cannot revisit its own decision because it has changed its mind or recognises it has made an error within jurisdiction or because there has been a change of circumstances;



• the principle of "functus officio" should not be strictly applied if the tribunal has failed to discharge its statutory function;



• the jurisdiction to re-open after judgment is discretionary and is to be exercised having regard to the public interest in maintaining the finality of litigation;



• finality is a powerful consideration;



• misapprehension of the facts or the law cannot be attributed solely to the applicant's neglect or default;



• it is preferable if a single judge rectifies a decision that has miscarried rather than an appeal court;



• circumstances can arise where a rigid approach to the principle of "functus officio" is inconsistent with good administration and fairness;



• if an administrative error is made the tribunal should not be bound by technicalities or legal forms and should act according to substantial justice;



• the principle of "functus officio" should be applied more flexibly and less formally in respect of decisions of administrative tribunals which are subject to appeal only on a point of law; and



• if a jurisdictional error is made there is no legal impediment under the general law to a decision-maker making such a decision.”

[9] I advised the parties that I considered several of the principles referred to in Spotless Cleaning Services Australia Ltd v Wookey and Topham to be relevant to consideration of Mr Moreni’s 2014 Application and that I was concerned the 2014 Application could be construed either as an application for the Commission to “revisit its own decision” or to re-open a matter after a decision has been made, perhaps contrary to “the public interest in maintaining the finality of litigation”.

[10] Finally, I advised the parties that it was my preliminary view that it may be appropriate to proceed to dismiss Mr Mioni’s 2014 Application pursuant to s.587(1) of the Fair Work Act 2009 (the Act) for one or several of the reasons provided for in that section. Section 587 provides the following;

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[11] As a consequence of holding these concerns I advised the parties I proposed to consider and determine the following Preliminary Question;

Should Mr Mioni’s application to the Fair Work Commission for an unfair dismissal remedy dated 5 August 2014 with the reference number U2014/11451 be dismissed by the Commission without further hearing, whether pursuant to the provisions of s.587 or another section of the Act?

[12] Directions were given inviting the parties to provide such further material as they wished to have taken into account by me. In response to the Directions, the parties provided further submissions and material, which include the following;

On behalf of Mr Mioni

• Mr Mioni advised my Associate by telephone on 1 September 2014 that he had only received a copy of my Statement on 25 August, despite the Australia Post tracking service indicating the letter was delivered on 11 August.



• Mr Mioni’s medical practitioner contacted my Associate by telephone on 1 September and by email on 4 September 2014 and indicated certain views about Mr Mioni’s medical condition. Dr Ngu’s correspondence was confirmed as not being a confidential submission, and includes views about Mr Mioni’s health and level of confusion since 2004. Dr Ngu advised she has been Mr Mioni’s principal medical carer since his dismissal in 2004. For reasons of privacy, I do not repeat Dr Ngu’s views here, however I confirm I have read and considered what she has reported on behalf of her patient.




On behalf of DEPI

• DEPI filed an Employer Response Form on 5 September, which included the following objection to the continuation of Mr Mioni’s 2014 Application;

• Having been dismissed on 31 May 2004, Mr Mioni’s unfair dismissal application was lodged more than a year late on 7 September 2005.



• Since the dismissal of his application in November 2005 by Commissioner Raffaelli, Mr Mioni “has relentlessly pursued DEPI via different forums, in an attempt to exact compensation for his alleged unfair dismissal”; and his dismissal from DEPI in May 2004 remains a contentious issue for him.



• While Mr Mioni “remains aggrieved over his dismissal, the relentless pursuit of a settled matter cannot eventually procure a favourable outcome by repeatedly raising it through every possible avenue”.



• There are grounds to dismiss the 2014 Application pursuant to s.587(1) of the Act and DEPI submits the application should be so dismissed “because it pertains to the same termination of employment which has previously been dealt by Commissioner Raffaelli in his decision of 15 November 2005” and “in DEPI's view, there is no basis for the Commission to re-open the matter. Therefore, the Commission should not proceed to take any steps to hear and determine the application.”

On behalf of Mr Mioni

• Following provision of the DEPI response material, Mr Mioni provided a short reply submission, which included that;

• “...had Commissioner Raffaelli been in possession of my current medical history (as submitted in this application) and more fully aware of the total vacuum in which I was then operating he might have found fair and reasonable grounds to have allowed the September 7 2005 lodgement to have gone forward. Alternately, had Commissioner Raffaelli been more aware of the fact that I was actively pursuing DEPI over the unfairness of my dismissal (even though I was suffering from ongoing trauma) that fact alone in the words of Brodie Harris v MTV Publishing might have favoured ‘The granting of an extension of time’.”



• He was traumatised by the DEPI decision to dismiss him and for the reasons it did;



• He was denied natural justice in the course of the DEPI investigation that led to his dismissal, and that in particular he was never given the chance to respond directly to the allegations “before they became charges”. The investigation was flawed from the beginning.



• In relation to Commissioner Raffaelli’s 2005 Decision, the Applicant submitted that given his circumstances, “viewed objectively the delay should on some level be understood and perhaps excused” and that his case should be seen as in the public interest; and that not to hear his case could be seen as a precedent.

[13] There is no evidence of a contract of employment being formed between Mr Mioni and DEPI or any of its predecessor departments after the 2005 Decision to dismiss the 2005 Application, and no party has submitted there was such a new contract of employment.

[14] As a result of this consideration, together with all material filed by the parties, I consider the 2014 Application does not have a prospect of success if it were allowed to go forward. An “application will have no reasonable prospects of success if it is so lacking in merit or substance as to be not reasonably arguable” 4.

[15] On the basis of the material provided to the Commission, the 2014 Application pertains to the same contract of employment about which Mr Mioni made an application to the Australian Industrial Relations Commission in 2005, and which Commissioner Raffaelli determined to finality in November 2005. For the reason Commissioner Raffaelli has already determined the 2005 Application to finality, it is unlikely that, were the matter to proceed, the Commission could find, in respect of the 2014 Application, that Mr Mioni is a person protected from unfair dismissal (see s.382) or that he has been dismissed or unfairly dismissed (ss.385 and 386).

[16] It is foreseeable that if the 2014 Application proceeded, the Commission would be invited to find there were no grounds or jurisdiction to reopen the 2005 Application, and that, in respect of the 2014 Application, the Commission’s only jurisdiction would be to consider whether there had been an unfair dismissal of Mr Mioni in relation to a contract of employment formed after the 2005 Decision was issued. The evidence would likely show that no such contract existed. The 2014 Application is not reasonably arguable.

[17] Consequently, I must dismiss Mr Mioni’s 2014 Application pursuant to the provisions of s.587(1)(c) of the Act.

[18] An order to the above effect will be issued in conjunction with this decision.

COMMISSIONER

 1   (2005) unreported, Print PR964813, relating to matter number U2005/5375

 2   Ibid, at [2]

 3   (2003) unreported, Print PR929400 (Marsh SDP, Blain DP, Deegan C)

 4   Smith v Barwon Region Water Authority, (2009) 187 IR 276, at [48]

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