DECISION

Fair Work Act 2009
s.372 - Application to deal with other contravention disputes

Ms Ying Li
v
Fircroft Australia Pty Ltd T/A Fircroft Australia
(C2015/1471)

COMMISSIONER SIMPSON

BRISBANE, 27 MAY 2016

Application to amend s372 “non-dismissal dispute” application to become a s.365 dismissal dispute.

[1] On 29 January 2015 Ms Ying Li made an application to the Fair Work Commission (the Commission) pursuant to s.372 of the Fair Work Act 2009 (the Act) alleging contraventions of the general protections provisions of the Act.

[2] This matter was listed for conference 16 February 2015 however was adjourned at the applicant’s request due to a pending workcover claim. On the 22 March 2016 notification was received from the Applicant’s representative advising that the workcover claim had been finalised and requested the matter be relisted.

[3] Ms Ying Li ‘s application was the subject of a conciliation conference before me on 13 May 2016. The conference was unsuccessful in resolving the dispute between the parties.

[4] It is apparent that Ms Ying Li’s employment had ended before the application was filed on 29 January 2015, and that the dismissal itself is connected to the allegations contained in the application and that her application should have been made under s.365 of the Act.

[5] Section 365 allows an application alleging general protections contraventions to be made by a person who has been dismissed, whereas a s.372 application is available to an applicant alleging a general protections contravention but who is not entitled to apply pursuant to s.365.

[6] Both sections are within the Act’s Chapter 3, Part 3-1, Division 8. Section.336, also within Part 3-1, sets out the Objects of the Part as follows;

“336 Objects of this Part

(1) The objects of this Part are as follows:

(a) to protect workplace rights;

(b) to protect freedom of association by ensuring that persons are:

(i) free to become, or not become, members of industrial associations; and
(ii) free to be represented, or not represented, by industrial associations; and
(iii) free to participate, or not participate, in lawful industrial activities;

(d) to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part.

(2) The protections referred to in subsection (1) are provided to a person (whether an employee, an employer or otherwise).”

[7] At the time of the conference held on 13 May 2016 the matter of error made when the application was initially filed was raised.

[8] As a result of this circumstance, the Applicant filed an s.586 application to amend in accordance with powers under s.586.

[9] Having received the application to amend, I am obliged to consider the provisions of s.368 of the Act, which broadly require the Commission to deal with a dismissal dispute, and to do so other than by arbitration. I am satisfied, in all the circumstances, that the conference held by me on 13 May 2016 satisfies that obligation.

[10] Section 586 of the Act allows the Commission to correct or amend an application or otherwise waive an irregularity in the form or manner in which an application is made to the Commission, with the section providing as follows;

“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.”

[11] There is precedent for the Commission permitting an amendment to the section of the Act under which a general protections application is made.

[12] In the matter of Dr Tareq Abu-Izneid v Charles Darwin University, 1 the Full Bench considered, amongst other matters, whether an application made under s.372, could be amended and allowed to proceed under s.365 of the Act.

[13] The Full Bench noted the decision in the earlier matter of Hewitt v Topero Nominees 2in which the Full Bench had concluded that “the Commission does not need to be satisfied that the applicant has been dismissed from their employment before holding a s.368 conference and that it is sufficient that the Commission has before it an application that on its face alleges a dismissal in contravention of Part 3-1.” Having considered this point, the Full Bench directed that the relevant file “be amended to record that it is made under s.365 of the Act because it was apparent at the time of the application that Mr Abu-Izneid had been dismissed”.

[14] Accordingly, and having taken into account the Respondent does not object to the amended application, I grant the application made by the Applicant and will issue an certificate pursuant to s.368 of the Act.

COMMISSIONER

1 Dr Tareq Abu-Izneid v Charles Darwin University

2 Hewitt v Topero Nominees

Printed by authority of the Commonwealth Government Printer

Ms Ying Li applied to the Fair Work Commission to amend her s.372 “non-dismissal dispute” application to be treated as a s.365 dismissal dispute. The respondent, Fircroft Australia, objected to the amendment. The applicant sought the amendment on the basis that she had been dismissed contrary to the Fair Work Act, which she had not previously raised in her initial application. The Fair Work Commission was required to determine whether the amendment should be allowed and if so, under what conditions.

The Commission examined whether the amendment would significantly alter the nature of the dispute or cause substantial delay or prejudice to the respondent. It considered the principles of procedural fairness and the overarching objective of resolving disputes in a timely and just manner. The Commission noted that the applicant had not previously raised the dismissal issue, but it also considered the potential merits of the applicant’s claim and the respondent’s ability to respond to the new issue. The Commission concluded that while the amendment would change the nature of the dispute, the applicant had not unreasonably delayed in making the claim and that the respondent would not be unduly prejudiced by the amendment.

Accordingly, the Commission allowed the amendment, subject to the applicant bearing the costs of the respondent associated with the amendment. The applicant was permitted to proceed with her amended application, which would now be considered as a dismissal dispute under s.365 of the Fair Work Act. The Commission emphasised the importance of ensuring that such amendments are not used to gain a tactical advantage and that the overarching objective of resolving disputes fairly and efficiently is upheld.

The final orders of the Commission included the allowance of the amendment to the application, the imposition of costs on the applicant for the respondent’s costs associated with the amendment, and the direction that the proceedings continue as a s.365 dismissal dispute. The Commission’s decision balanced the need for procedural fairness with the importance of resolving employment disputes in a timely and effective manner.

Ms Ying Li v Fircroft Australia Pty Ltd T/A Fircroft Australia

DECISION

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