Ms De Silva Mangala v Kilmore International School
[2013] FWC 2683
•2 MAY 2013
[2013] FWC 2683 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.773 - Application to deal with an unlawful termination dispute
Ms De Silva Mangala
v
Kilmore International School
(C2013/3110)
COMMISSIONER ROE | SYDNEY, 2 MAY 2013 |
Application to deal with an unlawful termination dispute.
[1] I issued the following Statement and Directions in this matter following a conference on 28 March 2013:
“[1] At the conference on 28 March 2013 the parties agreed on a without prejudice basis to attempt to resolve the dispute. As a consequence of the conciliation conference I am satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful. However, I am concerned that there may be a jurisdictional barrier to the issuing of a certificate pursuant to Section 777 of the Fair Work Act 2009 (the Act).
[2] To bring a general protections action the employer must be a constitutionally covered entity, or a trade and commerce employer (Section 338). It appears likely that Kilmore International School Limited which is the legal name of The Kilmore International School is either a national system employer or a constitutionally covered entity. In the circumstances of this case the Applicant alleges breach of Section 772(1)(f), that is termination on the grounds of race or ethnicity. The matters protected by general protections in the provisions of Section 351 are in relevantly identical terms. The provisions of Section 723 prohibit the making of an application under Section 773 if the person can make a general protections application in relation to the conduct.
[3] The representative for the Applicant did not accept my preliminary view. I have decided to consider written submissions of the parties prior to making a decision in respect to this matter. I am satisfied and the parties accepted that I should make the decision based upon the papers without the need for a hearing.
[4] Should I determine that the Application can be made under Section 773 given that I am satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful I will issue the certificate pursuant to Section 777. Should I determine that the Application cannot be made under Section 773 I will dismiss the Application.
[5] As advised to the parties my reservations about the merits of the case combined with the fact that there has already been an earlier unfair dismissal application which was withdrawn following the conciliation conference have led me to conclude that it would not be appropriate for me to exercise any discretion I may have to correct or amend the application to be a general protections application pursuant to Section 365 should I decide that the application cannot be made under Section 773.
[6] The Applicant is to make any written submissions they wish to make by 11 April 2013. The Respondent is to make any submissions in reply by 24 April 2013. If submissions are not received in accordance with these directions the decision may be made without further proceedings.”
[2] I received submissions in response to these directions.
[3] Upon receipt of the Applicant’s submission my Associate requested further information on 11 April 2013 from the Applicant as follows:
“Thank you for your submission of 8 April 2013. The Commissioner would appreciate further advice by 17 April 2013 in respect to point 8 in the Background section of the submission and the section headed “statement and directions of the Commissioner” as follows. The Commissioner notes that the F9A Employer Response to the Application submitted on 20 February 2013 describes the Legal Name of the Respondent as “The Kilmore International School Limited” and the Trading Name as “The Kilmore International School”.
1. The FWC has in place a process whereby a person who makes an application under Section 773 is contacted by the Registry and has their attention drawn to Section 723 and is thereby encouraged to consider if an alternative general protections application should be made. Could you please confirm that the registry did draw your attention to Section 723 and that you elected to proceed with the unlawful termination application?
2. Is your submission in the section headed “statement and directions of the Commissioner” that:
• You accept that Kilmore International School is either a national system employer (as extended by section 30D(1)) or a constitutionally covered entity but it was an understandable error given the complexity of the law; OR
• You maintain that Kilmore International School is neither a national system employer nor a constitutionally covered entity.”
[4] The Applicant’s representative responded on 12 April 2013 as follows:
“Thanks for the e-mail requesting us to provide further advice on the matter no: C2013/3110. Our advice is given below;
In reply to Para one and 2nd point of your letter, I wish to draw the attention of the Commissioner to the Form F3 (Attached) which was submitted to Fair Work Commission by the same employer in responding to the unfair dismissal claim which was withdrawn by the Applicant in circumstances. This is very clearly shows that both legal name and trading name as “Kilmore International School”. In form F9A they indicated Legal Name of the Respondent as “The Kilmore International School Limited” and the Trading Name as “The Kilmore International School”. In case, if the Commissioner decides to reinstate the unfair dismissal application, it is only “Kilmore International School” not “Kilmore International School Limited”. Even in Form 9A (Attached) they have very clearly indicated the Respondent as “The Kilmore International School”. Material factor to be noted here is that the Respondent failed to give a clear clarification at the conference on this and therefore, they can do nothing at this stage. In absence of other materials and without exploring evidence clearly, it is submitted that, at this stage, simply categorizing the Kilmore International School as a national system is unfair.
In referring to point 1 of your letter, I made inquiries from the Applicant and the relevant lawyer who was responsible in making the Form9 to Fair Work Commission on behalf of the Applicant. Based on their explanations, We confirm, Fair Work Commission at no time had contacted them and brought to their attention to consider Section 723 in making their application under unlawful termination.”
[5] The Respondent provided their submissions on 24 April 2013. The representative for the Applicant then objected to FWC providing the Respondent with a copy of the Applicant’s submissions. I am satisfied that this was clearly contemplated by the directions issued which provided for the “Respondent to make any submissions in reply” by a date two weeks after the Applicant made their submissions. There is nothing unusual about this practice. The Applicant seeks the opportunity to make further submissions to new claims made by the Respondent. However, I am satisfied that the material of the Respondent is an appropriate submission in response and that there is no unfairness in proceeding to make the decision in this matter in accordance with the directions which were agreed to by the parties at the conference.
[6] The referral of powers in Victoria and the operation of Section 30D of the Act mean that Kilmore International School Limited Trading As Kilmore International School is a national system employer. ”Employer” is defined in the original Victorian referral legislation as follows: “"employer" includes a person employing an employee, including the Crown and a public body and, in relation to a person who is a law enforcement officer, means the person nominated by the Governor in Council as the employer of that person”. 1
[7] The Fair Work (Commonwealth Powers) Act 2009 at Section 4 provides:
“(1) Subject to section 5, the following matters are referred to the Parliament of the Commonwealth—
(a) the matters to which the initial referred provisions relate, but only to the extent of the making of laws with respect to those matters by including the provisions set out in the scheduled text in the Commonwealth Fair Work Act, as originally enacted, in the terms, or substantially in the terms, set out in the scheduled text;”
[8] Section 30D of the Fair Work Act 2009 (the Act) provides as follows:
“30D Extended meaning of national system employer
(1) A national system employer includes:
(a) any person in a State that is a referring State because of this Division so far as the person employs, or usually employs, an individual; and
(b) a holder of an office to whom subsection 30E(2) applies.
(2) This section does not limit the operation of section 14 (which defines a national system employer).
Note: Section 30H may limit the extent to which this section extends the meaning of national system employer.
30N Extended meaning of national system employer
(1) A national system employer includes:
(a) any person in a State that is a referring State because of this Division so far as the person employs, or usually employs, an individual; and
(b) a holder of an office to whom subsection 30P(2) applies.
(2) This section does not limit the operation of section 14 (which defines a national system employer).
Note: Section 30S may limit the extent to which this section extends the meaning of national system employer.”
[9] The definition of national system employer in Section 14 of the Act is as follows:
“14 Meaning of national system employer
(1) A national system employer is:
(a) a constitutional corporation, so far as it employs, or usually employs, an individual; or
(b) the Commonwealth, so far as it employs, or usually employs, an individual; or
(c) a Commonwealth authority, so far as it employs, or usually employs, an individual; or
(d) a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:
(i) a flight crew officer; or
(ii) a maritime employee; or
(iii) a waterside worker; or
(e) a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or
(f) a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.
Note 1: In this context, Australia includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see paragraph 17(a) of the Acts Interpretation Act 1901).
Note 2: Sections 30D and 30N extend the meaning of national system employer in relation to a referring State.”
[10] There are a number of exemptions and limitations but none of them are relevant to this situation.
[11] I am satisfied that the Respondent in this matter is an employer in the State of Victoria covered by the referral of powers and is therefore covered by the extended definition of employer and national system employer if they were not already covered by the definition of national system employer (for example, if they are a constitutional corporation).
[12] On the question of whether or not the Respondent is a national system employer because it is a constitutional corporation the Respondent provided detailed submissions as to why this is the case. In particular the Respondent points to the fact that the school is incorporated and is a company limited by guarantee. The ACN is 083505131 and the ABN is 21083505131. The ABN appears on the letterhead on correspondence between the Respondent and the Applicant. The employment of the Applicant is covered by The Kilmore International School Enterprise Agreement 2012-2014. Clause 3 of that Agreement provides that “the Kilmore International School means “the Kilmore International School Limited ABN 21083505131”. The decision of FWA in approving the agreement identifies the employer as the Kilmore International School Limited. 2
[13] The school is a trading corporation in that the majority of its income comes from fees charged to parents, particularly parents of international students. The fees cover accommodation, meals and a range of services. The school seeks to make a surplus each year of trading although it is a not for profit entity. I am satisfied that if I am wrong about the Respondent being a national system employer by virtue of the relevant Referral legislation, the Respondent is a national system employer by virtue of it being a constitutional corporation.
[14] There is no requirement in Victoria for an employer to be incorporated for it to be a national system employer. The definition of employer in the original referral legislation is much wider than that. For the reasons outlined earlier, there is no doubt that Kilmore International School is an employer of a large number of employees in the State of Victoria. It is not public sector employer or an employer covered by any of the exemptions or exclusions in the referral legislation.
[15] I am therefore satisfied that the Applicant as an employee of a national system employer is able, pursuant to Section 338 and 339 of the Act, to make a general protections application under Section 365.
[16] Sections 338 and 339 of the Act provide as follows:
“338 Action to which this Part applies
(1) This Part applies to the following action:
(a) action taken by a constitutionally-covered entity;
(b) action that affects, is capable of affecting or is taken with intent to affect the activities, functions, relationships or business of a constitutionally-covered entity;
(c) action that consists of advising, encouraging or inciting, or action taken with intent to coerce, a constitutionally-covered entity:
(i) to take, or not take, particular action in relation to another person; or
(ii) to threaten to take, or not take, particular action in relation to another person;
(d) action taken in a Territory or a Commonwealth place;
(e) action taken by:
(i) a trade and commerce employer; or
(ii) a Territory employer;
that affects, is capable of affecting or is taken with intent to affect an employee of the employer;
(f) action taken by an employee of:
(i) a trade and commerce employer; or
(ii) a Territory employer;
that affects, is capable of affecting or is taken with intent to affect the employee’s employer.
(2) Each of the following is a constitutionally-covered entity:
(a) a constitutional corporation;
(b) the Commonwealth;
(c) a Commonwealth authority;
(d) a body corporate incorporated in a Territory;
(e) an organisation.
(3) A trade and commerce employer is a national system employer within the meaning of paragraph 14(d).
(4) A Territory employer is a national system employer within the meaning of paragraph 14(f).
339 Additional effect of this Part
In addition to the effect provided by section 338, this Part also has the effect it would have if any one or more of the following applied:
(a) a reference to an employer in one or more provisions of this Part were a reference to a national system employer;
(b) a reference to an employee in one or more provisions of this Part were a reference to a national system employee;
(c) a reference to an industrial association in one or more provisions of this Part were a reference to an organisation, or another association of employees or employers, a purpose of which is the protection and promotion of the interests of national system employees or national system employers in matters concerning employment;
(d) a reference to an officer of an industrial association in one or more provisions of this Part were a reference to an officer of an organisation;
(e) a reference to a person, another person or a third person in one or more provisions of this Part were a reference to a constitutionally-covered entity;
(f) a reference to a workplace law in one or more provisions of this Part were a reference to a workplace law of the Commonwealth;
(g) a reference to a workplace instrument in one or more provisions of this Part were a reference to a workplace instrument made under, or recognised by, a law of the Commonwealth;
(h) a reference to an industrial body in one or more provisions of this Part were a reference to an industrial body performing functions or exercising powers under a law of the Commonwealth.”
[17] The Applicant has made an unlawful termination application under Section 773 of the Act alleging that the termination was for reasons including “race, colour or national extraction” (Section 772(1)(f)). Termination for a reason including “race, colour or national extraction” is a breach of general protections and Section 351 in particular. I am satisfied that the Applicant could have sought a remedy for the alleged conduct by making a Section 365 general protections application.
[18] Section 723 of the Act provides as follows:
“723 Unlawful termination applications
A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.”
[19] I am therefore satisfied that the Applicant must not make an unlawful termination application in relation to the alleged conduct. If the Applicant must not make the application in my view it follows that I cannot issue a certificate pursuant to that application under Section 777 that would enable the Applicant to make an unlawful termination court application.
[20] The Registry of the Fair Work Commission has in place a procedure whereby those who make an unlawful termination application are contacted and advised of Section 723 and the need to consider whether or not the application should more appropriately be made under Section 365. The Registry have advised me that this occurred in respect of this Application. The supplementary submission of the Applicant’s representative dated 12 April 2013 quoted earlier is that FWC did not bring Section 723 to their attention. In the circumstances it is not necessary to determine this matter.
[21] The legal representative of the Applicant says that they were supplied with all relevant materials on 22 November 2012. The dismissal took effect from 14 December 2012. The lawyer was requested to lodge an unfair dismissal application prior to 28 December 2012 under Section 394 of the Act. Due to oversight in the lawyer’s office the application was not filed until 7 January 2013 and in a properly signed form on 16 January 2013.
[22] The matter proceeded to conciliation on 8 February 2013 where the issue of the fact that the application was out of time was raised by the employer and also that the termination appeared to be a genuine redundancy. The Respondent lodged an objection to the jurisdiction on the grounds of genuine redundancy and that the Application was made out of time on 1 February 2013. The correct legal name of the employer was included in the F4 employer response form. It is not in contention that the Applicant along with a number of other employees was made redundant around this time and were paid their redundancy entitlements. The Respondent provided information about the changes to the level of enrolments which they say led to the need for redundancies. The Applicant disputes these figures and the interpretation to be placed upon them.
[23] The Applicant elected to discontinue her unfair dismissal application on 12 February 2013 and made an unlawful termination application on the same date.
[24] It was not in contention that the Applicant was not the only person made redundant and that others who were made redundant were persons of differing “race, colour or national extraction”.
[25] I consider that there are two courses of action available to me. One is to dismiss the application under Section 587(1)(a) on the grounds that it must not be made pursuant to Section 723. The other is to exercise powers under Section 586 to correct or amend the Application. The Applicant suggested that I could as an alternative reinstate the unfair dismissal application. I am not satisfied that it is open to me to take such action in circumstances when the unfair dismissal matter was not before me, was the subject of earlier proceedings and was withdrawn by the Applicant. If I am wrong about that matter I consider that it would not be appropriate to take such action given that the application was the subject of objection and was following that objection withdrawn and given the length of time since that occurred.
[26] Sections 586 and 587 of the Act state:
“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.
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.”
[27] The legal representative for the Applicant did not concede that the Section 773 Application had been made in error. The representative points to the fact that on a form in response to the withdrawn unfair dismissal application the employer referred to its legal name as Kilmore International School whilst on the form in response to the current application the employer referred to its legal name as Kilmore International School Limited. The Applicant argues that there is no basis for establishing that the employer is a national system employer. The submissions make it clear that the Applicant’s representative maintains the position that the employer is not a national system employer and that a general protections application can therefore not be made. In this sense it could not be said that the Applicant is seeking to now make an application under Section 365. In that situation I would not be “allow(ing)” a correction or “waiv(ing)” an irregularity. I am prepared to accept that the Applicant is putting an implied alternative argument that should I find that the Respondent is a national system employer then I should exercise discretion to amend the application to be an application pursuant to Section 365.
[28] In any case I have decided not to exercise discretion to amend the application to be an application pursuant to Section 365 general protections. I do not consider it appropriate to exercise discretion in this case because:
• The parties have already been inconvenienced by the cost of an unfair dismissal application which was, due to representative error, made out of time and which the Applicant’s representative concedes had limited prospects of success and was therefore discontinued after unsuccessful conciliation. I consider that it would have been appropriate to exercise discretion to amend the application in the circumstances of this case if there had not been an earlier unfair dismissal application which had been the subject of conciliation and had then been withdrawn.
• The Fair Work Act has been in place for almost four years. The Applicant has the benefit of legal representation. The fact that Victoria has referred its industrial powers to the Commonwealth in respect to virtually all employers is common knowledge. It would not require complex examination to be satisfied that the Respondent in this case is a national system employer. Having got it wrong once it would be reasonable to expect the Applicant’s representative to take some care to ensure that the new application was correctly made.
• If the Applicant’s representative believed that the Respondent was not a national system employer then the Applicant’s representative should have been aware that he could not bring an unfair dismissal application.
• On the material before me in the conference I consider that a general protections application would have limited prospects for success. I considered that the merits of the application are weak given the extent of information about the reasons for redundancy and that redundancy was not confined to persons of a particular race, colour or national extraction. That said I have not heard all of the evidence and it is not my role to hear and determine the evidence in these matters. However, my judgment concerning the merits of the matter are relevant in exercising discretion as to whether or not to amend the application. This is a consideration but not the major consideration in deciding not to exercise my discretion. Even if this factor was excluded I consider it would still not be appropriate to exercise my discretion.
• If I fail to exercise discretion the Applicant could still make a new application and seek an extension of time in respect to that application.
[29] The Application has not been validly made under the Act and is therefore dismissed.
COMMISSIONER
Final written submissions:
The Applicant filed submissions on 8 and 12 April 2013.
The Respondent filed submissions on 24 April 2013.
1 Commonwealth Powers (Industrial Relations) Act 1996, Section 30.
2 [2012] FWAA 5665.
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