Ms Diane Miles v Hansen Yuncken Pty Ltd and Leighton Contractors Pty Ltd T/A HYLC Joint Venture

[2013] FWC 1394

[2013] FWC 1394

FAIR WORK COMMISSION

DECISION

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

Ms Diane Miles
v
Hansen Yuncken Pty Ltd & Leighton Contractors Pty Ltd T/A HYLC Joint Venture
(U2012/10488)

COMMISSIONER HAMPTON ADELAIDE, 14 MARCH 2013

Termination of employment - jurisdiction - whether application discontinued or abandoned - whether power to re-open application exists - whether discretion arises and should be exercised - matter to be listed for arbitration.

1. Background

[1] This matter arises in the context of an application pursuant to s.394 of the Fair Work Act 2009 (the Act) by Ms Diane Miles (the applicant) seeking a remedy for an alleged unfair dismissal. The respondent is Hansen Yuncken Pty Ltd & Leighton Contractors Pty Ltd T/A HYLC Joint Venture.

[2] The unfair dismissal application was lodged with Fair Work Australia (as it was then known) on 14 June 2012 claiming in effect that the alleged redundancy dismissal was not genuine and was unfair. The respondent subsequently filed a response denying the allegations and raising a jurisdictional issue based upon the dismissal being a genuine redundancy within the meaning of s.389 of the Act.

[3] It is common ground that the application was subject to a voluntary conciliation process conducted by Fair Work Australia in early July 2012. I add that in the lead up to and during the conciliation, the applicant provided material outlining a series of sexual harassment and related allegations that were said to be the real reasons for the dismissal.

[4] The matter was not resolved, however based upon discussions with the parties at a resumed telephone conference on 5 July 2012, the conciliator issued the following email to the parties:

“I note Diane’s advice that she is not going to proceed with this, her unfair dismissal application. In consequence I will be marking the file as settled and I request Diane to file a Notice of Discontinuance (From 50). Any filing fee associated with the application will then be refunded within about 4-6 weeks.

If you have any queries or concerns please contact me.”

[5] The applicant did not file a notice of discontinuance (NOD) at that time, or subsequently, however the file was treated by the conciliator in the manner proposed in that email.

[6] The parties held some further independent conciliation discussions on 11 July 2012 during which various allegations and settlement proposals were advanced, but a resolution was not agreed. These discussions were initiated by the respondent however some of the context for those discussions is in dispute.

[7] In late July 2012, the applicant sought legal advice having not been represented to that stage. Following the attainment of two counsel opinions, her solicitors approached Fair Work Australia in October 2012 to ascertain the status of the application and were informed that the application had in effect been closed.

[8] The applicant’s solicitors wrote to the respondent on 10 October 2012 and set out the applicant’s allegations, noted that there was an unfair dismissal application before Fair Work Australia, and advised that they were presently providing advice about a potential complaint to the Australian Human Rights Commission (AHRC).

[9] A written request to “re-open” the application was made to Fair Work Australia by the applicant’s solicitors on 19 October 2012.

[10] I add that in late November or early December 2012, the applicant also lodged an application for compensation pursuant to the Workers Rehabilitation and Compensation Act 1986 (SA) (the WR&C Act).

2. The parties’ contentions and evidence

[11] The applicant, who was represented with permission by Mr Deegan, contended as follows:

• The indication of discontinuance of the unfair dismissal matter was understood by the applicant to refer only to part of her unfair dismissal application and this meant that the sexual harassment aspect would continue before the Commission;



• In any event, the discontinuance was subject to her lodging a NOD with FWA, which was not done;



• The FWA conciliator had no power to discontinue the matter and the applicant did not discontinue the matter in accordance with the procedural rules;



• Any discontinuance must be made in accordance with the procedural rules unless a Member of the Commission waives compliance in accordance with powers given to them under the Act;



• The applicant understood that her application remained on foot and this was evidenced by her approach in the further settlement discussions with the respondent and to the solicitors; and



• The applicant did not change her mind about the matter and even if she did so, this was not inappropriate given that she had sought to obtain legal advice at the conclusion of the FWA conciliation process.

[12] The applicant also contended in the alternative that if the application had been properly closed by Fair Work Australia, there was power to re-open an application under the Act. Further, this should be done given the circumstances of this matter including that the applicant genuinely misunderstood the conciliator’s “advice” and email, and did not have any intention to discontinue the application before Fair Work Australia.

[13] The applicant gave evidence and also relied upon the evidence of Ms Kara Palombo, Solicitor with Brian Deegan Lawyers, who acted for her in this matter.

[14] The respondent, which was represented with permission by Mr Kidman, contended as follows:

• The re-opening of the application should not be entertained as it was statute-barred by virtue of the workers compensation claim made by the applicant and the operation of s.726 to s.732 of the Act;



• The application was discontinued by the applicant during the course of the second Fair Work Australia conciliation conference and the filing of the NOD was not necessary;



• The position of the applicant at that time was clear and unequivocal and the conciliator acted appropriately to undertake the administrative step of closing the file; and



• There is no express or implied power under the Act to re-open a matter that has been discontinued and decisions of the Tribunal to the contrary should not be followed.

[15] In the alternative, the respondent contended that any discretion arising should not be exercised to re-open the application given the delays in re-raising the matter; the actions of the applicant which were said to involve a change of mind; the difficulties arising in terms of the associated workers compensation matter which was now on foot; and the prejudice to the respondent.

[16] The respondent relied upon the evidence of Mr Tom Earls, Legal and Workplace Services Manager of the Master Builders Association of SA Inc, who acted for it during the FWA conciliation process. It further relied upon the evidence of Mr Steven Jarman, Human Resources Manager with Hansen and Yuncken Pty Ltd, who was involved in the conciliation process and subsequent discussions between the parties.

[17] I would emphasise that the above represents a summary only of what were detailed and considered submissions from both parties, supported in each case with reference to authorities. I have had regard to all of that material in determining this matter.

3. Findings

[18] I found the applicant to be an honest witness who had a poor, but genuinely held understanding, as to the outcome of the Fair Work Australia conciliation process. I do not consider that she attempted to mislead the Commission.

[19] I found that Ms Palombo, Mr Earls and Mr Jarman were excellent witnesses and I rely upon their evidence as to the facts where relevant to this present application.

[20] Given the particular controversies that arise in this matter it is not necessary to make findings in relation to all of the issues in dispute between the parties. I will deal with most of the relevant findings as part of the consideration of this matter, however some further context is necessary for the determination of the major issues.

[21] It is evident to me that the FWA conciliator and the respondent and its representatives understood that the applicant had two alternative courses of action arising from her allegations. Proceed with the unfair dismissal application before the Commission, which was subject to the jurisdictional challenge, or take the sexual harassment related allegations to the AHRC or other relevant Tribunal. In that context, the respondent understood the indication from the applicant during the second conciliation conference as being that she was intending to discontinue the unfair dismissal matter. This understanding also influenced its approach to seek the further private conciliation with the applicant.

[22] However, the applicant did not properly understand that dichotomy and without access to legal advice, 1 understood that there were two elements to her application. The first being whether the dismissal was a genuine redundancy and secondly, in effect whether it was unfair given her view that it was based on her complaints arising from sexual harassment. The applicant did not understand that the indication of discontinuance related to the entire claim before Fair Work Australia.

[23] This outcome is reinforced by the fact that during the private conciliation discussions with the respondent following the FWA conciliator’s email, the applicant was clearly still discussing and pursuing remedies that were relevant to the unfair dismissal jurisdiction. Further, her instructions to the solicitors were on the basis that she had a standing application and was awaiting the matter to be progressed by Fair Work Australia.

[24] The applicant did not respond to the email or lodge a NOD. There is some tension in her evidence about her understanding of the effect of lodging the NOD in relation to the “sexual harassment” claim however it is tolerably clear that she intended to seek further advice before taking that step.

[25] There is no evidence to suggest that the applicant applied for or received a refund of her unfair dismissal application fee.

4. The major issues to be determined

4.1 Has the application been discontinued?

[26] Section 588 of the Act provides as follows:

“588  Discontinuing applications

A person who has applied to the FWC may discontinue the application:

(a) in accordance with the procedural rules (if any); and

(b) whether or not the matter has been settled.”

[27] The Fair Work Australia Rules 2010 contain a NOD as a form however there are no provisions dealing with the use of the form or any other parameters concerning the discontinuance of matters.

[28] Rule 4 provides that:

“FWA may dispense with compliance with any of the requirements of these Rules before or after the occasion for compliance arises.”

[29] It is common ground between the parties that the FWA conciliator did not have the power to discontinue the application. It is also evident to me that the FWA conciliator did not have power to waive compliance with the Rules or close the file other than as an administrative action to reflect her understanding of the outcome of the matter. I add that there is nothing to suggest that the FWA conciliator concerned misled the applicant or did anything that was not appropriate in the circumstances.

[30] Although there is an indication in the evidence of Mr Earls that the respondent agreed with the discontinuance, the respondent has not sought to claim in this matter that there has been any form of binding agreement arising from the conciliation process that would make the present request an abuse of process on that basis. In any event, this would be difficult to maintain given the circumstances. 2

[31] In this case, the FWA conciliator recorded her understanding of the applicant’s intentions, requested the applicant to file a NOD and advised that the file would be marked as “settled”. 3

[32] Given the absence of power to herself discontinue the matter or take formal action to dismiss the application, and the fact that a binding settlement was not made by the parties, the FWA conciliator took the appropriate action to request the NOD as the formal means of concluding the matter and administratively treated the file as being closed.

[33] In that light, the application has not been determined by the Commission or properly discontinued by the applicant and the administrative treatment of the file cannot be conclusive as to its actual standing.

[34] On that basis, there remains a valid application before the Commission and no formal re-opening is required. In reality, the present application is one to have the matter listed for determination.

4.2 Has the application been otherwise abandoned such that it requires re-opening?

[35] It is at least conceivable that a party might be taken to have abandoned an application by their actions. Even if this is a concept that might operate here, I do not consider that the applicant abandoned this application.

[36] There was no response to the FWA conciliator’s email, other than not to file the NOD. However, immediately afterwards, there were continuing discussions between the parties during which the applicant raised issues that were consistent with an understanding that the unfair dismissal matter remained on foot and then sought legal advice.

[37] The time taken for the applicant’s solicitors to approach Fair Work Australia is an issue. However, given that the instructions were that the application was alive and the applicant was awaiting Fair Work Australia to make arrangements for an arbitration of the matter, some of this delay is explicable to that extent.

4.3 Is the application statute barred?

[38] The respondent’s jurisdictional issue is based upon the multiple actions provisions of the Act as set out in Part 6-1 of the Act.

[39] Section 725 of the FW Act provides as follows:

“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.”

[40] This rule potentially applies to the s.364 unfair dismissal application in this matter by virtue of s.729 of the FW Act, which provides as follows:

“729  Unfair dismissal applications

(1) This section applies if:

(a) an unfair dismissal application has been made by 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) failed because FWA was satisfied that the dismissal was a case of genuine redundancy.

(2) An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal.”

[41] The respondent’s jurisdictional objection is based upon the operation of s.732 of the FW Act, which provides as follows:

“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.”

[42] For completeness, I also note that s.733 of the FW Act provides as follows:

“733  Dismissal does not include failure to provide benefits

For the purposes of this Subdivision, a reference to an application or complaint made in relation to a dismissal does not include a reference to an application or complaint made only in relation to failure by the employer concerned to provide a benefit to which the dismissed person is entitled as a result of the dismissal.”

[43] The applicant has lodged a claim for compensation under the WR&C Act apparently in relation to her alleged sexual harassment and unfair dismissal. Although the date of the lodgement of the claim is not clearly stated in the material before the Commission, it is founded on a medical certificate which was provided in mid November 2012.

[44] I note that the letter of 5 December 2012 from EML 4 states that the notification was received on 1 November 2011, this cannot be correct as that letter also notes that this notification was received more than 13 weeks after the alleged date of injury, which is cited as being 8 June 2012.

[45] I deal with this aspect on the presumption that the WR&C Act claim was made at some time after both the unfair dismissal matter and the application to “re-open” were made. 5

[46] Even if the WR&C Act claim was an application within the meaning of s.732 of the Act 6, it was made after the lodgement of the unfair dismissal matter. I have found that that application remains on foot and accordingly, s.725 would not operate in relation to the unfair dismissal application. It does not matter that the WR&C Act claim refers to matters at the time of the dismissal. The critical points in the operation of s.725 and related provisions are when applications are made.

[47] Further, even if I am wrong about the status of the unfair dismissal application at the time of the application to “re-open”, that request is not akin to a making a fresh application and in any event, s.725 is still not engaged given the timing of the two matters.

[48] This application is not statute barred as contended by the respondent.

5 Conclusions

[49] On the basis of the above findings, it is not necessary to consider whether the Fair Work Commission has the power to re-open the application in the sense that would arise if it had been properly discontinued. To the extent that a discretion exists as to whether the matter should now be listed for hearing, there are some competing considerations.

[50] I accept that the respondent has acted on the understandable presumption that the application was going to be discontinued and that it is likely that the applicant does have an alternative course of action open, being to make a complaint to the AHRC. I also accept that the delay in having this matter determined has the potential to create prejudice to the respondent and that much of the responsibility for that delay must rest with the applicant.

[51] However, fundamentally an application with standing should be heard and determined according to the Act and the prejudice associated with the delay can be considered and taken into account in terms of any remedies that might ultimately be considered. Further, there are presently no grounds upon which the unfair dismissal application can or should be dismissed by the Commission.

[52] Accordingly, I consider that the unfair dismissal application is properly before the Fair Work Commission and it is appropriate that it be listed for hearing and determination. Given the respondent’s original jurisdictional challenge based upon the existence of a genuine redundancy, directions will soon be issued to permit that issue to be expeditiously heard.

COMMISSIONER

Appearances:

B Deegan of Brian Deegan Lawyers (with permission) for Ms Miles.

T Kidman of Crawford Legal (with permission) for Hansen Yuncken Pty Ltd & Leighton Contractors Pty Ltd T/A HYLC Joint Venture.

Hearing details:

2013

Adelaide

February 22

Final written submissions:

2013

28 February,

1 and 8 March.

 1   The applicant had earlier discussed her application with the Working Women’s Centre of SA.

 2   See the discussion of decision of Besanko, J in Australian Postal Corporation v Gorman [2011] FCA 975.

 3   I understand that the concept of “settled” may be used by conciliators in this context as an administrative entry to close the file for the purposes of the FWC case management system.

 4   Exhibit R5.

 5   This presumption was advised to the parties on 8 March 2013 and no contrary views were advanced.

 6   The concept of State legislation of this nature applying in this context was discussed in Ilardo v Rail Corporation of New South Wales T/A Railcorp[2010] FWAFB 6473. As cited by the respondent I also dealt with related issues in Monir Mottaghi v Adelaide Community Healthcare Alliance Incorporated T/A The Memorial Hospital[2012] FWA 5362. In that case however, the nature of an application under the WR&C Act for compensation payments said to arise from a dismissal (as a basis for the operation of s.725) did not arise and neither case is authority for that proposition. In any event, I do not need to determine the issue in this case.

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