Mr Richard Darragh v Mr Seamus Nash

[2015] FWC 436

[2015] FWC 436

FAIR WORK COMMISSION

DECISION

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

Mr Richard Darragh
v
Mr Seamus Nash; Mr Mark Dick
(C2014/6378)

COMMISSIONER BULL SYDNEY, 16 JANUARY 2015

General protections application to deal with contraventions, question of whether application was filed under s.365 or s.372 and whether extension of time required to file application. No public interest in determining the matter.

[1] On 12 September 2014, a General Protections claim was filed in the Fair Work Commission Registry by Turner Freeman Lawyers on behalf of Mr Geoffrey Darragh (the applicant). A Form F8 which was appropriate at the time of filing for both s.356 and s.372 applications was completed.

[2] The applicant was employed by CPS Technology Group Pty Ltd until his termination by way of redundancy which took effect on 18 August 2014. On 8 August 2014 CPS Technology Group Pty Ltd was placed into administration. The applicant is listed as a Preferred (Employee) Creditor, claiming $134,000. 1 The applicant states he was not paid any wages for the notice period or any redundancy pay or for any unused accrued entitlements.2

[3] The two respondents named are Mr Seamus Nash and Mr Mark Dick. Mr Nash was the Director and CEO of CPS Technology Group Pty Ltd and Mr Dick the General Manager Finance and Operations (the respondents).

[4] It emerged at the mediation conference conducted by the Commission on 21 October 2014 that the applicant was relying on s. 550 of the Fair Work Act 2009 (the Act) in alleging that the respondents were involved in a contravention of the General Protections provisions.

[5] At 3.1(i) of the Form F8 completed by the applicant’s representative, it states that the respondents were at all times involved in the unlawful adverse action in that they each “aided, abetted and procured the unlawful adverse action”.

[6] The completed Application Form F8 states at question 1.1 that the applicant has been dismissed. At question 1.2 the applicant states he was dismissed on 18 August 2014 following the expiry of 30 days notice given on 18 July 2014. Reference is then made to the applicant seeking an extension of time to lodge the application.

[7] Question 3 Alleged contravention at 3.1 asks the applicant to: Describe the action of the respondent that has led you to make this the application. The applicant responds by stating at 3.1 (d) - (e) that the applicant had a number of workplace rights being:

• entitlements under the Act and Superannuation Guarantee Legislation being the first workplace right and



• further entitlements on termination under the Act to the payment of accrued unused annual leave and rights to redundancy payments being the second workplace right.

[1] At 3.1(g) the application states that the employer CPS Technology Group Pty Ltd put in place a scheme between May 2014 and July 2014 to ensure that the applicant would not enjoy the first or second workplace rights. The applicant’s written submissions allege that the pattern of conduct of the employer CPS Technology Group Pty Ltd and the new entities that took over from them as typical of a “phoenix arrangement”. 3

[2] At 3.1 (h) the application states:

“(h) The conduct involved in the scheme was undertaken so as to prevent the applicant enjoying the workplace rights and:

i. involved the termination of the applicant’s employment;
ii. injured the applicant in his employment;
iii. altered the applicant (sic) to his prejudice;
iv. discriminated between the applicant and other employees of the respondent 4”

[1] At 3.2 of the F8 it asks: Explain how the action you have described in 3.1 has adversely affected you. The following response is provided:

“(a) Loss of employment;
(b) Loss of the right to claim unpaid entitlements.”

[2] On 21 October 2014, a s.365 conference was held before the Commission. The applicant was represented by Mr David Taylor, a solicitor and the respondents by Mr George Panos, also a solicitor. At the time of the conference neither respondent had filed a response to the application.

[3] The matter proceeded as a s.365 conference and was not resolved. During the conference the respondents’ representative raised the jurisdictional objection that the application was out of time. Directions were issued on the same day for the respondents to file their responses to the application and for the applicant to file submissions relating to the application being out of time.

[4] The respondent Mr Nash filed a response on 29 October 2014 raising the jurisdictional objection that the application was made out of time. Mr Dick filed a response on 11 November 2014 which also raised the out of time jurisdictional objection.

Applicant’s submissions

[5] The applicant filed their written submissions regarding the out of time point taken by the respondents on 14 November 2014. In essence the submission states that the original application was made pursuant to s.372 and accordingly the 21 day time for filing a s.365 application does not apply. The submission put was that the F8 does not ask if it is alleged by the applicant that the dismissal was in breach of the General Protections provisions only whether there was a dismissal and then assumes it that the application is a claim under s.365. I accept that this is a fair reading of the Form F8 and note that a new Form F8C—General Protections Application Not Involving Dismissal now exists.

[6] The applicant states that there is no complaint under Part 3-1 of the Act in regard the applicant’s termination: 5

“In this context while the adverse action involved the termination of his employment, the termination was not in breach of Part 3-1 of the Fair Work Act. If this submission is accepted then the applicant’s claim is properly understood as being made under s.372 of the Fair Work Act and is within time.”

[7] The applicant does not contest that his position was no longer required. 6 The adverse action is said to be the corporate restructure and the placement of the employer into administration, this is said to be part of a deliberate scheme to deprive the applicant of his workplace rights, being various workplace entitlements.7

[8] On the basis that the Commission determines that the claim does involve an allegation of a dismissal in breach of Part 3-1 of the Act, the applicant has also provided reasons why an extension of time to file a s.365 application should be granted, the submission is said to be made out of “abundant caution”. 8

Respondent’s submissions

[9] The respondents’ submit that when the applicant ticked the box on the Form F8 that the applicant had been dismissed, the application procedurally became a s.365 application. 9 This is said to be further supported by the F8 at 3.1 stating that the scheme put in place by the employer was undertaken to prevent the applicant enjoying his workplace rights and “involved the termination of the applicant’s employment” and the applicant’s request for an extension of time. The respondents’ state there can only be one inference that being, the application is made under s.365.

[10] The respondents have provided written reasons why an extension of time to file should not be granted for the “s.365 application.”

Legislative provisions

[11] General Protections are dealt with in Part 3-1 of Chapter 3 of the Act, and the objects of the Part include “to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part.”

[12] Sections 365 and 372 are provisions for dealing with disputes alleging contraventions of Part 3-1 of Chapter 3.

Section 365

[13] Section 365 is found in subdivision A of Division 8 of Part 3-1 - General Protections of the Act and provides as follows:

“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.”

(My underline)

[14] The Explanatory Memorandum to the Fair Work Bill 2008, provides comment in regard to s.365 as follows:

Clause 365 - Application for FWA to deal with a dispute

1478. Clause 365 provides that a person who alleges that they have been dismissed in contravention of Part 3-1, may apply to FWA for a conference to attempt to settle the dispute. An industrial association entitled to represent the industrial interests of the dismissed employee may also make an application to FWA under clause 365.

[15] The time frame for filing an application in the Commission and for accepting out of time applications for a s.365 application is set out in s.366 of the Act:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[16] A matter proceeding as a s.365 application must first be dealt with by the Commission in a compulsory conference for mediation/conciliation. This requirement is found at s.368:

“368 Dealing with a dismissal dispute (other than by arbitration)

(1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).

Note: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute.

(2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).

Note: For conferences, see section 592.

(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:

(a) the FWC must issue a certificate to that effect; and

(b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.

(4) A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.”

Section 372

[17] Section 372 is located in Division 8 - at Subdivision B - Other contraventions

“372 Application for the FWC to deal with a non-dismissal dispute
If:

(a) a person alleges a contravention of this Part; and

(b) the person is not entitled to apply to the FWC under section 365 for the FWC to deal with the dispute;

the person may apply to the FWC under this section for the FWC to deal with the dispute.”

[18] In respect of s.372 the Explanatory Memorandum states:

1492. Where a person alleges a contravention of Part 3-1 but is not entitled to make an application under clause 365, the person has the option of applying under clause 372 for FWA to deal with the dispute rather than proceeding immediately to a court action. Applications can be made under this clause if, for example, an employee was not dismissed, but suffered a reduction in wages because of the alleged contravention.

Conclusion

[19] If the application was made to deal with contraventions involving dismissal, pursuant to s.365 of the Act and the application was made outside the time prescribed in s.366(1), albeit by four days, the Commission must consider whether the time for filing should be extended on the basis that there are exceptional circumstances.

[20] As no agreement could be reached between the parties at the conference on 21 October 2014 to settle the matter, the Commission issued directions with respect to the respondent’s jurisdictional objection of the application being made out of time.

[21] In the decision of Justice Dodds-Streeton of the Federal Court in Shea v TruEnergy Services Pty Ltd (No 1) 10 her Honour was considering whether “the dispute” in a General Protections Court application was limited to claims set out in an application pursuant to s.365. Her Honour made a number of observations relating to a s.365 application.

“[64] The Form F8 headed “Application for FWA to Deal with a General Protections Dispute – Fair Work Act 2009 – ss 365, 372” completed by the applicant in this case is a short document setting out basic questions, including “Alleged contravention(s) of Part 3-1”, “Section(s) allegedly contravened” and “Description of alleged contravention(s).

[81] The regime established in Subdivision A of Division 8 aims, where possible, to avoid litigation about allegedly contravening dismissals by mandating (as a prerequisite to litigation) a preliminary, less costly and relatively informal process in FWA to facilitate conciliation and non-curial resolution”.

(My underline)

[22] Part 3-1 of Chapter 3 categorises disputes as disputes involving dismissal or disputes involving other contraventions. There is clearly a need to categorise a General Protections application as either a s.365 or s.372 application for a least four reasons:

• a s.365 application has a mandatory time limit to file the application within 21 days of the dismissal, a further period may be ordered in exceptional circumstances,



• a s.365 application requires a mandatory conference before the Commission, whereas a s.372 conference is only where both parties agree,



• a s.365 Court application can only be made by a person where the Commission has issued a certificate under s.368(3)(a) having been satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful; and



• Where a certificate has been issued under s.368(3)(a) a person has 14 days in which to make a Court application {s.370(a)(ii)}

[1] Persons alleging contraventions involving dismissal may make an application under s.365 of the Act for the Commission to deal with the dispute, and persons alleging disputes involving contraventions who are not entitled to make an application under s.365, may make an application under s.372 for the Commission to deal with such disputes. The distinction is whether the alleged contravention involves dismissal. While other adverse actions may be pleaded in a s.365 application, the alleged adverse action must include dismissal.

[2] An application including a dismissal as adverse action cannot be brought under s.372 as per s.372(b).

[3] In the decision of Ms Norma Dean-Villalobos v QGC Limited T/A QGC 11 Asbury C (as she then was) held:

[64] Further, I generally do not accept the proposition that a single application, however pleaded, can be made under both sections. The Form F8 is simply a multi-purpose form, which can be used to make either type of application. The form requires an applicant to indicate whether or not the alleged contravention involves dismissal.

[67] While neither s.365 nor s.372 is worded in a way suggesting that the provisions are mutually exclusive, it is clear from the structure of Division 8 that a single application cannot be made under both sections. To hold otherwise would result in a situation where the time limit that the legislature clearly intended to apply to contraventions alleged to involve dismissal, could be subverted, by virtue of the ability for an applicant to make an application under s.372 containing such an allegation, outside of the time limit in s.366 and without establishing exceptional circumstances for an extension of time. Where an application is made under s.372 an applicant may elect to proceed directly to the court without attending a conference before the Commission. If an application alleging a contravention involving dismissal could be made under s.372, the mandatory conciliation process established by s.368 would also be subverted.

[4] In the matter of Dr Linda Munjoma v Salvation Army (NSW) Property Trust for the Social Work 12Hatcher VP also expressed a view that s.365 requires an allegation that a dismissal has occurred in contravention of Part 3-1.

[5] The applicant has submitted that it accepts that a s.365 application must involve an allegation that a person was dismissed in contravention of the general protections provisions. 13

[6] There is no utility in the Commission determining an out of time s.365 application where the applicant states it has made no such claim. The applicant wishes to pursue a s.372 application which does not allow for a claim alleging a dismissal has occurred in contravention of Part 3-1. The form the applicant has completed is appropriate for a s.372 application.

[7] If this application is considered by the Commission to be filed pursuant to s.365 and an extension of time is not granted, the applicant is still able to pursue a claim through the Federal Magistrates Court or Federal Court, as the applicant maintains the claim does not involve a dismissal that has occurred in contravention of Part 3-1.

[8] If an extension of time was granted and a certificate under s.369(3) was issued by the Commission it would serve no purpose as a certificate is not required for a matter to proceed to Court for a General Protections claim that does not allege that a dismissal has occurred in contravention of Part 3-1.

[9] The submissions of the applicant to deal with the extension of time question are for reasons of “abundant caution”. In my view the Commission should not embark on decision making exercises where no public interest is served or the matter is merely hypothetical or academic.

[10] As was held in Veloudos v Young (1981) 56 FLR 182 per Lockhart J at 190 14:

“Courts will not decide a question that is academic in the sense that it is useless, merely hypothetical, raised prematurely or a dead issue; although they preserve a discretion to determine a question which has ceased to be a live issue inter-parties where the determination would be in the public interest.”

[11] In this matter, the applicant has submitted a claim on a Form F8 which at the time was a multi-purpose form for either s.365 or s.372 claims. The Form F8 required the applicant to state whether the applicant had been dismissed. Where the applicant advised that they had been dismissed the Commission’s Registry treated the application as being one made pursuant to s.365. However as the applicant correctly points out, the response that the applicant had been dismissed, which was factually correct, is not an allegation that the dismissal was in breach of Part 3-1 of the Act. The Form F8 does not specifically ask this question.

[12] I can find no reference in the applicant’s Form F8 alleging that a dismissal occurred in contravention of Part 3-1 of the Act. However it was not unreasonable to make this assumption as the applicant has requested an extension of time for filing the claim at 1.2 and refers at 3.2 to the loss of employment being part of the adverse action that has been taken. These two issues were not addressed by the applicant other than to state that the Form F8 cannot prescribe the legal categorisation of the claim. 15

[13] The question to be addressed is whether the application involves an allegation that the applicant’s dismissal was in breach of the General Protection provisions of the Act. The applicant states that the Form F8 makes no such claim (despite some indications to the contrary discussed above), and in any event it has now clarified and put beyond doubt that there is no such claim and it has not made a s.365 application which in any event it cannot make without a concomitant allegation that the dismissal occurred in contravention of Part 3-1.

[14] Despite the unsatisfactory situation that has arisen, I find that on the applicant’s assertion that no s.365 application has been made and there being no contention that the dismissal occurred in contravention of Part 3-1 of the Act, there is no s.365 application before the Commission. On this basis no extension of time application is required or can be dealt with by the Commission. Consistent with the principles enunciated by Lockhart J in Veloudos v Young,I do not intend to decide a matter which is academic.

[15] As noted above the Commission’s forms have been amended to require separate documents to be completed for s.365 and s.372 applications for reasons I assume include the issue raised in this matter.

Final Written submissions

Respondent: 2 December 2014.

Applicant: 16 December 2014

COMMISSIONER

 1   See Report to Creditors from Administrator

 2   Applicant’s written submissions 14 November 2014 at (15)

 3   Applicant’s written submissions 14 November 2014 at 29(d)(iv)

 4   It is noted that the respondents in the application were not the employer

 5   Applicant’s written submissions 14 November 2014 at (24)

 6   Applicant’s written submissions 14 November 2014 at (10) the submission refers to the “respondent” it is assumed this is a reference to the employer

 7   Applicant’s written submissions 14 November 2014 at (23)

 8   Applicant’s written submissions 14 November 2014 at (25)

 9   Respondents’ written submissions 2 December 2014 at 20(c)

 10 [2012] FCA 628 (15 June 2012)

 11   [2013] FWC 1537 (21 March 2013)

 12   [2013] FWC 3337 at[21]

 13   Applicant’s submissions in reply 16 November 2014 at (11)

 14   See also Confederation of Western Australian Industry Inc v Federated Miscellaneous Workers’ Union &Ors (1990) 70 WAIG 1281-2

 15   Applicant’s submissions in reply 16 November 2014 at (12)

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