Ms Dina Greenslade v Totally Aussie Security (Qld) Pty Ltd and Associated Entities T/A TAS Security
[2018] FWC 6151
•8 OCTOBER 2018
| [2018] FWC 6151 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Dina Greenslade
v
Totally Aussie Security (QLD) Pty Ltd and Associated Entities T/A TAS Security
(C2018/2757)
COMMISSIONER PLATT | ADELAIDE, 8 OCTOBER 2018 |
Application to deal with contraventions involving dismissal – jurisdictional objection – duplicate State and Federal applications – nature of State application, timing of State application – jurisdictional objection dismissed.
Summary
[1] On 23 May 2018 Ms Dina Greenslade lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that her employment was terminated by Totally Aussie Security (QLD) Pty Ltd T/A TAS Security (TAS) on 3 May 2018 in contravention of the general protections provisions of the Act.
[2] There is no dispute that Ms Greenslade was dismissed at the employer’s initiative on 3 May 2018.
[3] Ms Greenslade contends that she was dismissed in breach of s.340, s.343, s.344 and s.352 of the Act. TAS contends that Ms Greenslade was dismissed as a result of her behaviour and the irretrievable breakdown in trust and confidence within the employment relationship.
[4] On 24 May 2018, Ms Greenslade lodged a claim in the Magistrates Court of Queensland (M215/18) against 10 defendants (one of whom is TAS). Ms Greenslade sought that the Court deal with the matter as an “Employment Claim” and claimed the amount of approximately $150,000.00 (including fees).
[5] I note that within the Particulars of Ms Greenslade’s Magistrates Court claim she has characterised her application as:
“a claim for a portion of the monies owed to me for the remaining term of my employment that has not been paid.”
[6] The Particulars of the claim refers to the provision in Ms Greenslade’s employment contract dated 18 June 2015 which, under the clause titled “Contract Binding Authority”, states:
“The Employee and the Employer agree that reasonable and sufficient notice of termination of employment by the Employer is the greater of 7 years from the commencement. If the Employer terminates this agreement, prior to the end of this period, then the Employer will compensate the Employee by full payment of all Salary for the remaining contract period.”
[7] The end of Ms Greenslade’s employment contract period was 17 June 2022.
[8] On 19 June 2018, TAS submitted a form F8A Employer Response and raised the jurisdictional objection on the basis that s.725 of the Act barred Ms Greenslade from pursuing the s.365 application as a result of lodging the claim in the Magistrates Court.
[9] On 13 September 2018, I conducted a Conference and issued Directions requiring TAS and Ms Greenslade to provide an outline of their submissions, witness statements and any document upon which they sought to rely on by 20 September 2018 and any material in reply by 27 September 2018 respectively.
[10] The parties agreed that in the absence of any factual dispute that they consented to the jurisdictional issue being determined on the papers.
[11] The Respondent’s submissions are relevantly summarised as follows:
• Ms Greenslade was dismissed as a result of serious misconduct.
• Ms Greenslade’s application in the Magistrates Court relates to her dismissal and that the lodgement of both applications breaches the prohibition of “double dipping” as set out in s.725 of the Act and provided references to numerous authorities on the interpretation of that section.
[12] Ms Greenslade contended that the two applications are different, in that the Magistrates Court claim relates to compensation for the remaining term of her employment contract. I note that much of Ms Greenslade’s material related to the merits of her claim which is not relevant to the jurisdictional objection.
[13] On 2 October 2018, I also invited the parties to make any submissions on the impact of s.733 of the Act on the jurisdictional objection.
[14] On 4 October 2018, Ms Greenslade provided further submissions that are relevantly summarised as follows:
• Section 725 states that a person who has been dismissed must not make an application or complaint of a kind referred to in any of the sections under the Subdivision.
• The Magistrates Court claim seeks compensation of the remaining portion of the entitlements under the contract, whereas the complaint in the general protections application is in regard to the dismissal.
• The Magistrates Court claim does not fall under any of the sections in the Subdivision as it is not a claim in relation to the dismissal. It is a claim in relation to a portion of monies owed under the contract.
[15] TAS provided additional submissions to the effect that the Magistrates Claim was for compensation in relation to the dismissal and section 733 of the Act did not apply in these circumstances.
[16] TAS submitted that:
• The Magistrates Court claim:
• is not only in relation to a benefit, but seeks to agitate the purported unfairness of the dismissal and the provided extracts from the Magistrates Court claim to demonstrate that point.
• was made against a number of persons and entities; and
• seeks compensation for the termination of her employment rather than seeking to strictly enforce the contractual benefit.
• The key issue to be determined was the circumstances in which the contract of employment was reached and the evidence in the general protections claim and the Magistrates claim will overlap.
Relevant Law
Subdivision B—Applications and complaints relating to dismissal
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.
726 Dismissal remedy bargaining order applications
(1) This section applies if:
(a) a dismissal remedy bargaining order 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.
(2) A dismissal remedy bargaining order application is an application for a bargaining order made on the ground that the person was dismissed in contravention of the good faith bargaining requirement in paragraph 228(1)(e).
727 General protections FWC applications
(1) This section applies if:
(a) a general protections FWC 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 paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful).
(1A) This section also applies if:
(a) a general protections FWC 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; and
(c) a certificate in relation to the dispute has been issued by the FWC under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful); and
(d) a notification of the parties’ agreement to the FWC arbitrating the dispute has been made as referred to in paragraphs 369(1)(b) and (c).
(2) A general protections FWC application is an application under section 365 for the FWC to deal with a dispute that relates to dismissal.
728 General protections court applications
This section applies if:
(a) a general protections court 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.
729 Unfair dismissal application
(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 the FWC 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.
730 Unlawful termination FWC applications
(1) This section applies if:
(a) an unlawful termination FWC 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 paragraph 776(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful).
(1A) This section also applies if:
(a) an unlawful termination FWC 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; and
(c) a certificate in relation to the dispute has been issued by the FWC under paragraph 776(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful); and
(d) a notification of the parties’ agreement to the FWC arbitrating the dispute has been made as referred to in paragraphs 777(1)(b) and (c).
(2) An unlawful termination FWC application is an application under section 773 for the FWC to deal with a dispute that relates to dismissal.
731 Unlawful termination court applications
This section applies if:
(a) an unlawful termination court 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.
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.
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.
[17] Section 725 of the Act clearly states that a person must not make an additional application which falls within sections 726 – 732 of the Act. The Explanatory Memorandum of the Fair Work Bill 2008 outlines that the purpose of this Subdivision as a whole is to prevent a party from “double dipping” in circumstances where they may make multiple applications seeking a variety of remedies.
[18] In this case, Ms Greenslade has filed a general protections application seeking compensation and damages for the adverse action (the termination) taken by TAS in response to her exercising her workplace right. After the lodgement of the general protections application Ms Greenslade then filed a claim in the Queensland Magistrates Court seeking compensation for her outstanding entitlements owed under her contract of employment.
[19] The Respondent has in turn asserted that Ms Greenslade’s general protections application falls within s.727, and that the Queensland Magistrates Court application is caught by s.732, and as a result of the prohibition contained in s.725 the Commission does not have jurisdiction to determine the general protections application.
[20] I note that the facts of this case are similar to that of Atkinson v Vmoto Ltd 1. In that case Commissioner Spencer was tasked with considering whether the Applicant was barred from pursuing her general protections application in the Commission as a result of filing an application which related to a claim for entitlements in the District and Supreme Court.
[21] The relevant excerpts of the decision are as follows:
“The applicant was employed in the role of Chief Operations Officer of the respondents’ business which involved the manufacture and sale of electric scooters. A dispute arose between the parties relating to the applicant’s discharge of her employment contract. The applicant issued the respondent with a statutory demand for outstanding wages which had been withheld. This statutory demand was discharged. However the respondent subsequently terminated the applicant’s employment without reasons being provided. The applicant issued the respondent with a further statutory demand relating to entitlements for notice payments arising from her contract of employment, and this further statutory demand formed the basis of actions against the respondent in the District Court and Supreme Court which were both dismissed.
…
The Applicant made certain claims arising out of the termination of her employment, specifically relating to contractual entitlements she claimed arose under the contract of employment.
…
Section 733 allows for a separate application to be made in pursuit of a benefit to which the dismissed person is entitled to, as result of the dismissal.”
[22] Commissioner Spencer ultimately held that the Applicant’s general protections claim was not barred by virtue of s.725 of the Act.
Consideration
[23] The General Rule in s.725 refers to the making of an application and restricts the making of additional applications as described in sections 726 – 732. In my view, the test is a point in time test as at when the time the general protections application was lodged.
[24] Ms Greenslade has not made a dismissal remedy bargaining order application as defined in s.726(2) and accordingly s.726 has no application.
[25] Ms Greenslade has made a general protections application as described in s.727(2) and therefore s.727 has no application.
[26] Ms Greenslade does not appear to have made a general protections Court application and thus s.728 has no application.
[27] Ms Greenslade has not made an unfair dismissal application and thus s.729 has no application.
[28] Ms Greenslade has not made a unlawful termination application as defined in s.730(2) and thus s.730 has no application.
[29] Section 732 applies to applications or complaints made under another law (which includes the law of a State) in relation to the dismissal. This provision is relevant to this matter.
[30] Section 733 provides that a reference to an application of a complaint 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 to as a result of the dismissal.”
[31] I accept that there is a dispute about the validity of the employment contract relied upon by Ms Greenslade, and the circumstances under which it was made, which will be relevant to both actions.
[32] I accept Ms Greenslade’s submission that the claim within the Magistrates Court is a claim which seeks payment of entitlements due under the contract of employment, and thus falls within the scope of s.733 of the Act.
[33] As a result, the Magistrates Court claim cannot be properly described as an application or complaint which s.732 would preclude.
[34] Whilst I do not need to determine the timing issue in this decision, had Ms Greenslade’s Magistrates Court claim fallen foul of s.732, the jurisdictional objection would still have failed as the claim was not on foot at the time the s.365 application was filed.
[35] The jurisdictional objection is dismissed.
[36] A further conference will be held so as to determine if the dispute can be resolved other than by arbitration.
COMMISSIONER
Final written submissions:
D Greenslade the Applicant.
L Langridge on behalf of the Respondent.
Printed by authority of the Commonwealth Government Printer
<PR701022>
1 [2012] FWA 9043.
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