Ms Lauren Hansen v Apex Cleaning & Polishing Supplies Pty Ltd T/A Apex Cleaning Supplies

[2011] FWA 1566

[2011] FWA 1566

FAIR WORK AUSTRALIA

DECISION

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

Ms Lauren Hansen
v
Apex Cleaning & Polishing Supplies Pty Ltd T/A Apex Cleaning Supplies
(C2010/5486)

COMMISSIONER CRIBB MELBOURNE, 11 MARCH 2011

Application to deal with contraventions involving dismissal - jurisdiction.

[1] This decision concerns an application by Ms Lauren Hansen (the applicant) for Fair Work Australia to deal with a general protections dispute under s.365 of the Fair Work Act 2009 (the Act). The applicant alleges that Apex Cleaning & Polishing Supplies Pty Ltd t/a Apex Cleaning Supplies (the respondent) contravened s.340 of the Act by taking an adverse action against her (dismissal) because she exercised a workplace right.

[2] In accordance with s.386(1) of the Act, a conference to deal with the dispute was held on 14 December 2010. The dispute was not settled. At the conclusion of the conference, the respondent raised a jurisdictional objection to the Tribunal issuing a certificate under s.369 of the Act.

[3] The respondent’s jurisdictional objection was heard on 1 February 2011. The applicant did not attend the hearing on medical advice but forwarded an email setting out her submissions. The respondent was represented at the hearing by Mr M Ritchie from the Victorian Employers’ Chamber of Commerce and Industry (VECCI).

WITNESS EVIDENCE

[4] The respondent called evidence from Mr and Mrs Shearer who are both Directors of Apex Cleaning and Polishing Supplies Pty Ltd t/a Apex Cleaning Supplies.

Mr G Shearer

[5] It was Mr Shearer’s evidence that:

• On Friday 24 September 2010, he overheard a meeting between Mrs Shearer and the applicant. There appeared to be an error in the ordering. He recalled that the applicant became evasive in her answers to Mrs Shearer’s questions. 1 He said that he did not hear Mrs Shearer make any comments to the applicant regarding her performance.2



• On Monday 27 September 2010, the applicant came into his office and told him that she was pregnant. She also said she would like to have a meeting with a witness present. She also said that she needed to give him some documentation. 3



• Ms Hansen then handed him a written complaint regarding intimidation and bullying of her in the workplace 4 and demanded he sign it.5 He had not seen the document before and said that he would not sign it.6



• The applicant then produced two tape recorders, read out the complaint and asked him if he refused to sign it. He confirmed that he would not sign it. 7



• Of the two occasions cited in Ms Hansen’s letter of complaint, Mr Shearer was only able to comment about the one on 24 September 2010. 8



• On 4 October 2010, the respondent wrote to Ms Hansen advising that a third party would be present at any business meeting and asking for notification of her expected return to work date. 9



• Ms Hansen responded on 6 October 2010 requesting advice of the steps that Mr Shearer was going to take in response to the issues raised in her complaint. She indicated that her medical advice was that she could not return to work until the issues had been resolved. 10 Mr Shearer indicated that it had taken seven or eight days to get external advice on how to try and alleviate any stress on Ms Hansen’s part.11



• On 8 October 2010, the respondent wrote to Ms Hansen indicating that they would like to arrange a meeting to discuss her concerns. 12 Mr Shearer had also unsuccessfully tried to contact the applicant by telephone on a number of occasions prior to 6 October 2010.13



• A letter was received from Ms Hansen dated 28 October 2010 resigning from her employment, with effect on 3 November 2010, giving one week’s notice. The letter stated that, on her doctor’s advice, she would not expose herself to the stress of the environment at the workplace. 14



• Mr Shearer said he was surprised that Ms Hansen had resigned and had never considered her being terminated. He had presumed that the company had not heard from Ms Hansen for three weeks due to issues with her pregnancy.



• There was a subsequent telephone call from the applicant regarding whether the respondent was going to pay the entitlements she had calculated. It was recalled that she was agitated and angry. 15



• The company had then written to the applicant on 8 November 2010 about her entitlements. 16

Mrs C Shearer

[6] Mrs Shearer gave evidence about a conversation, initially between Ms Hansen and the bookkeeper, on 24 September 2010. She said that:

• The bookkeeper and Ms Hansen were talking at length so Mrs Shearer asked if she could help. 17



• They told Mrs Shearer that there appeared to have been a duplication of orders for a particular customer. As the bookkeeper had to leave early, Mrs Shearer asked Ms Hansen if she could come into her office to have a chat about the issue. 18



• With the documents in front of them, Mrs Shearer had gone through asking about the details. Mrs Shearer described it as a very “light” meeting and did not indicate that she may dismiss Ms Hansen. 19



• During the meeting Ms Hansen asked if she was going to sack her. Mrs Shearer had told her no and that the meeting was not about that. She had not reached any conclusions and was just trying to find out what had happened. 20 It was recalled that Ms Hansen became agitated.21

[7] Evidence was also given that, on 23 November 2010, WorkSafe investigated Ms Hansen’s complaint of bullying and made a report of their investigation. Mrs Shearer said that WorkSafe had not found any evidence of bullying and intimidation. 22

SUBMISSIONS

Respondent

[8] On behalf of the respondent, it was submitted by Mr Ritchie that the Tribunal cannot deal with the application and issue a certificate under s.369 of the Act because the necessary jurisdictional conditions have not been met. The Tribunal was therefore required to dismiss the application for want of jurisdiction. 23

[9] It was contended by the respondent that Ms Hansen had resigned from her position on 28 October 2010 and had not returned to the workplace. 24 Accordingly, Mr Ritchie submitted that the jurisdictional requirements for making a claim under s.365 had not been met. This was because s.365(a) of the Act provides for an application if “a person has been dismissed.” In this case, as the applicant had voluntarily resigned, there was no dismissal of the applicant at either the initiative of the employer or her resignation was not forced as the result of a course of conduct by the employer.25

[10] Secondly, it was argued that, for Ms Hansen’s application to succeed, it must be proven that the respondent had taken adverse action against the applicant because one of the conditions set out in s.340(a) applies. As the applicant had resigned, it was therefore unclear to the respondent as to how the respondent took adverse action against the applicant because of a workplace right. 26

[11] Further, Mr Ritchie submitted that the purpose of the Tribunal, with respect to general protections claims, “is not to simply act as a floodgate, channelling all potential claims through to the court system in which expensive litigation will occur but act more as a wheel or a lock, holding back certain claims, importantly, to stop expensive litigation particularly for smaller business, where the requirements of the Act haven’t been met and where it’s not appropriate to do so.” 27

[12] It was contended that the evidence of Mr and Mrs Shearer showed that the applicant elected to resign from her position on 28 October 2010 and did not return to the workplace or chose not to return. 28

[13] In support of the respondent’s submissions, Mr Ritchie referred the Tribunal to a number of authorities. These included the decisions in Tse v Ready Workforce 29 (Tse) and Yu v Azzura Gelati30(Yu). It was highlighted that Cloghan C found in both of these decisions that the applicant had not been dismissed from their employment and that, as the jurisdictional preconditions of s.365 had not been met, he was unable to issue a certificate under s.369 of the Act.31

[14] With respect to this matter, it was argued that it could only be dealt with if the Tribunal found that Ms Hansen had been dismissed thereby satisfying the jurisdictional requirement set out in s.365(1). Reference was made to Ms Hansen’s application which stated that she felt forced to resign. Mr Ritchie indicated, therefore, that he would concentrate on the requirements of s.386(1)(b) rather than s.386(1)(a). 32 He highlighted Ms Hansen’s submissions33 where she stated that she had resigned because she felt that the only way to end this treatment (bullying and harassment) was to resign.

[15] With respect to the question of whether the applicant was forced to resign because of a course of conduct by Mr and Mrs Shearer, it was submitted that the evidence showed that she was not forced to resign. Rather, Ms Hansen had been invited back to have a meeting to discuss how the situation in the workplace could be improved. Further, it was stated that the applicant’s resignation was not solicited or suggested by the respondent. Mr Ritchie argued that the respondents had repeatedly tried to call Ms Hansen and had written to her to get her to come back and discuss her complaint. 34

[16] The Tribunal’s attention was drawn to the Explanatory Memorandum to the Fair Work Bill 2008 as providing guidance for the appropriate interpretation of s.386. 35 The case of Mohazab v Dick Smith Electronics Pty Ltd36 was referred to as was the decision in Ngo v Link Printing Pty Ltd.37 In addition, the decision in Elgammal v BlackRange Wealth Management Pty Ltd38 was highlighted with respect to the issue of whether an employee was forced to resign by the actions of her employer.39 Two other authorities on this issue were also discussed.40

[17] In applying the case law to this matter, Mr Ritchie contended that, after the complaint had been raised, the employer made repeated efforts to try and get her back to the workplace to discuss the issues she had raised. However, the applicant was said not to have taken up the offer and that she then wrote a month later, to say that, as no positive action has been taken to remedy the situation, she was resigning. 41

[18] Mr Ritchie submitted that there was no evidence of conduct by the respondent which could have forced Ms Hansen to resign. Further, no medical evidence had been provided by Ms Hansen that the conditions at the workplace were making it unsafe or inappropriate for her to stay. It was known that the applicant was pregnant and that she had a medical condition but there was nothing to link that and the employer’s conduct in the workplace. 42

[19] With respect to the employer’s conduct prior to the complaint, it was argued that the worst thing that occurred was an ordinary business discussion about invoices. It was contended that there was no evidence of any bullying, harassment or intimidation occurring in the workplace prior to 27 September 2010. 43

[20] Accordingly, it was submitted that it would be inappropriate for the Tribunal to find that the conduct of the employer forced Ms Hansen to resign (s.386(1)(b)). Therefore, on the basis of the decision in Tse, together with the proper construction of the Act and the role of the Tribunal in holding back the number of these claims, it was contended that Ms Hansen’s application does not meet the jurisdictional requirements of s.365 under the Act. Therefore, the Tribunal must decline to issue the s.369 certificate and dismiss the application for want of jurisdiction. 44

[21] In the alternative, Mr Ritchie sought that, if the Tribunal decided to issue a certificate, it should record that the claim has no reasonable prospect of success. 45

Applicant

[22] In response to the Tribunal’s Directions, Ms Hansen sent an email on 27 January 2011. 46 In her email, Ms Hansen said that:

• She intended to continue to dispute her treatment by the respondent.



• She was bullied and harassed whilst employed and felt that the only way to end this treatment was to resign.



• She had resigned on 28 October 2010 after having exhausted all avenues to return to the workplace.



• Her employer had offered no remedy to the bullying although Mr Shearer had said that he would get back to her on the afternoon of 27 September 2010.



• She had remained absent from work on the advice of two medical practitioners as the stress was too much.



• The respondent had lied about whether they had had computer problems.



• Other employees have offered to discuss, with the Tribunal, the bullying or harassment they have either witnessed or had inflicted on them.



• The Tribunal was asked to consider why she would continue to pursue her application, seeking no financial gain, and putting herself under unnecessary stress whilst pregnant - unless it was the truth.



• Bullies continue to get away with their behaviour because people do not act.



• The Tribunal was requested to stop this behaviour by issuing the certificate.

CONCLUSIONS

[23] Ms Hansen has made an application for the Tribunal to deal with a general protections dispute between herself and her former employer, Apex Cleaning & Polishing Supplies Pty Ltd t/a Apex Cleaning Supplies. A conference was held on 14 December 2010 but the dispute was not settled.

[24] The respondent has lodged a jurisdictional objection to the Tribunal issuing a certificate under s.369 of the Act. This is on the basis that there was not a valid application before the Tribunal under s.365 of the Act as Ms Hansen had not been dismissed by the respondent as it is defined in s.386(1) of the Act. Therefore, the Tribunal could not issue a certificate under s.369 as there was not a valid application before it.

[25] I have considered carefully all of the material before me and I have formed the view that there is no jurisdictional impediment to the issuing of a certificate pursuant to s.369 of the Act in this matter. There are a number of reasons for this view.

[26] The first reason goes to the wording of s.369 of the Act. Section 369 states that:

“369 Certificate if dispute not resolved

If FWA is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, FWA must issue a certificate to that effect.”

[27] The certificate that is issued by the Tribunal, pursuant to this clause, states that:

“...Fair Work Australia certifies that it is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.”

[28] What section 369 requires the Tribunal to do, therefore, is to issue a certificate if it is satisfied that all reasonable attempts to resolve the dispute have been/unlikely to be, unsuccessful. That is all that is required by the Tribunal in issuing a certificate - to certify that all reasonable attempts by the Tribunal have been unable to resolve the dispute.

[29] Further, s.370 of the Act requires that the Tribunal must advise the parties that a general protections court application would not have a reasonable prospect of success if FWA is of that opinion or considers that to be the case. The reasons for such a view being formed may include doubt as to whether the applicant could sustain an argument in the court that he/she had been dismissed. However, the Tribunal is still required to issue a certificate even if the concerns about the application succeeding are based on jurisdictional grounds.

[30] In addition, it is clear from section 371 of the Act that a person must not make a general protections court application unless Fair Work Australia has issued a s.369 certificate or the general protections court application includes an application for an interim injunction. This means that, unless an interim injunction is being sought, a general protections court application must not be made unless the applicant first has a s.369 certificate from the Tribunal. To this end, the Act requires the Tribunal to hold a conference of the parties (s.368). The next two sections then require, firstly, that the Tribunal issues a certificate if it is satisfied that all reasonable attempts have been or are likely to be unsuccessful in resolving the dispute (s.369). Secondly, the Tribunal must advise the parties if it considers that a general court application regarding the dispute, would not have a reasonable prospect of success (s.370).

[31] The exception to this is where a general protections claim is made under s.372 of the Act (other contraventions) - where there has been no dismissal. The agreement of both parties to participate in conference is a pre-condition for the conducting of a conference by the Tribunal (s.374(1)(b)). If the employer does not agree to participate in a conference, the applicant may make a general protections application directly in the court without a conference being held by the Tribunal. No certificate is required from the Tribunal prior to making this type of general protections court application. However, the Tribunal is required to advise the parties if it considers that a general protections court application would not have a reasonable prospect of success (s.375). Therefore, an applicant may make a general protections court application (where dismissal is not involved) in the absence of a conference in Fair Work Australia or a certificate issued by it.

[32] Secondly, Division 8 of Part 3-1 (General Protections) of the Act only provides for Fair Work Australia, in addition to conducting a conference, to allow a further period for the making of an application (s.366(2)). This can be contrasted with the unfair dismissal provisions, found in Part 3-2 of the Act. This Part includes, apart from allowing a further period for the making of an application, the Tribunal deciding whether it was a genuine redundancy (s.396(d)), whether the person was protected from unfair dismissal (s.396(b)) and whether the dismissal was consistent with the Small Business Fair Dismissal Code (s.396(c)). These are all jurisdictional questions and Fair Work Australia must decide them before considering the merits of an unfair dismissal application (s.369). The scheme of the Act, therefore, would seem to require the Tribunal to determine a range of jurisdictional questions before determining the merits in regard to unfair dismissal applications. However, as set out above, there is no corresponding requirement in the Act for general protections claims.

[33] Further, in the Explanatory Memorandum to the Fair Work Bill 2008, the compliance framework for general protections disputes is set out. At paragraph 1475, it states that the dispute will be dealt with at first instance in a conference conducted by Fair Work Australia, and that:

“If the dispute remains unsettled after the conclusion of the conference, the dismissed employee can proceed to court.”

[34] In addition, as indicated above, the Tribunal must advise the parties if it considers that a general protections court application has no reasonable prospect of success (s.370). However, with respect to unfair dismissal claims, the Tribunal has the discretion to dismiss an application if it has no reasonable prospect of success (s.587(1)). The Tribunal is expressly forbidden from exercising the power to dismiss, or to dismiss an application on the ground it is frivolous or vexatious, with respect to a general protections dispute application - s.587(2).

[35] For all of these reasons, it appears that the provisions of the Act, in terms of the functions of the Tribunal regarding general protections disputes under s.365, simply require the Tribunal to conduct a conference to deal with the dispute (s.368), to issue a certificate if the dispute is unresolved (s.369) and provide advice on a general protections court application if it considers that a court application would not have a reasonable prospect of success (s.370). This may be contrasted with the powers given to the Tribunal regarding unfair dismissal claims (Part 3-2 of the Act). Part 3-2 requires the Tribunal to, in addition to conducting a conference (s.398), determine a number of jurisdictional issues prior to determining the merits of an application.

[36] Therefore, as the general protections dispute notified by Ms Hansen was not resolved, during the conference on 14 December 2010, as required, a Certificate pursuant to s.369 of the Act will be issued.

[37] On the basis of the material before me during the conference, and there being two different versions of the one set of events, I am unable to form the view that it is necessary to advise the parties, as required by s.370 of the Act, that a general protections court application would not have a reasonable prospect of success.

COMMISSIONER

 1   Transcript PN 38, 43 - 44

 2   Ibid PN 45

 3   Ibid PN 46 and 54

 4   Exhibit R1

 5   Transcript PN 47

 6   Ibid PN 53

 7   Ibid PN 54 and 59

 8   Ibid PN 60

 9   Ibid PN 91 - 92 and Exhibit R2 at Attachment 2

 10   Ibid PN 95 - 98 and ibid at Attachment 3

 11   Transcript PN 101, 107

 12   Ibid PN 115 and Exhibit R4

 13   Ibid PN 116

 14   Ibid PN 118 - 121 and Exhibit R2 at Attachment 4

 15   Ibid PN 123 - 124

 16   Exhibit R2 at Attachment 7

 17   Transcript PN 152

 18   Ibid PN 156

 19   Ibid PN 159 - 160

 20   Ibid PN 161 - 162, 165

 21   Ibid PN 163

 22   Ibid PN 166 - 175 and Exhibit R2 at Attachment 8

 23   Exhibit R3 at PN5 and Transcript PN 30, 178

 24   Ibid and Transcript PN 29

 25   Exhibit R3 at paragraph 2 and 6 and Transcript PN 29

 26   Transcript PN 78 and Exhibit R2 at paragraph 8 - 9

 27   Ibid PN 28

 28   Ibid PN 177

 29   [2010] FWA 8751, 15 November 2010

 30   [2010] FWA 4624

 31   Ibid at PN 16 - 18 and [2010] FWA 875 at paragraph 54-55

 32   Exhibit R3 at paragraph 17 and Transcript PN 192, 194

 33   Exhibit A1

 34   Transcript PN 195

 35   Ibid PN 196 - 197 and Exhibit R3 at paragraph 20

 36 (No.2) (1995) 62 IR200

 37   (Print 7005, 7 July 1999) and Transcript PN 200 - 201

 38   [2010] FWA 7845

 39   Ibid PN 204 - 212

 40   Ibid PN 213 - 236

 41   Ibid PN 236 - 237

 42   Ibid PN 238

 43   Transcript PN 239

 44   Ibid PN 241 and Exhibit R3 at paragraph 23

 45   Ibid PN 245

 46   Exhibit A1

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