Paul Anthony Pagliarella v National Disability Insurance Agency
[2022] FWC 2115
•11 AUGUST 2022
| [2022] FWC 2115 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Paul Anthony Pagliarella
v
National Disability Insurance Agency
(C2022/2630)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 11 AUGUST 2022 |
Application to deal with contraventions involving dismissal
The applicant, Paul Anthony Pagliarella has applied under s 365 of the Fair Work Act 2009 (Act) for the Commission to deal with dispute about the applicant’s dismissal in which he alleges he was dismissed in contravention of Part 3-1 of the Act. The respondent to the application is the National Disability Insurance Agency. The applicant was not employed by the respondent.
The respondent raised a jurisdictional objection to the application proceeding on the basis that it did not offer employment to the applicant, nor did it employ the applicant. It says that the Latrobe Community Health Service Ltd (Health Service) made a conditional offer of employment to the applicant but that the applicant did not begin employment with the Health Service, and there was no dismissal.
The material facts as are relevant to the question whether the applicant is a person who has been dismissed are not in contest. The parties requested that I determine the matter on the papers, and I consider that it is appropriate to do so.
The application will be dismissed. My reasons follow.
By letter dated 10 March 2022, the applicant was offered employment in the position of Local Area Coordinator with the Health Service. The offer of employment made by the Health Service was conditional “on the successful completion of Entry Level Checks conducted by the DHS, NDIS Worker Screening Check clearance, a current Working with Children Check (Employee), which are mandatory requirements to meet the requirements of the position description”.[1]
Thereafter the letter set out in greater detail the various conditions that must be fulfilled for the applicant to commence employment the subject of the conditional offer. These included the provision of various documents demonstrating the applicant’s capacity to work in Australia, satisfactory completion of DHS pre-engagement checks, a satisfactory Police Record check, a Working with Children check and an NDIS Worker Screening Clearance.
The letter made clear that upon receipt of the outcome of the various checks, the applicant would be notified of the outcome and if “successful clearance is confirmed, [he] will be issued with the final copy of the contract and commencement date”.
The applicant accepted the conditional offer and the terms and conditions set out in the offer on 11 March 2022.
Sean Robert Giddings is the Assistant Chief Security Officer and Director of Protective Security (Agency Security Adviser), Protective & Cyber Security Branch with the respondent. He prepared a witness statement for these proceedings,[2] and insofar as it contains material that is relevant to the question whether there was a dismissal, its content is not contested. Relevantly Mr Giddings says:
· The respondent has entered into a shared services agreement with Services Australia. The shared services agreement enables Services Australia to provide a host of services for a fee. The respondent has access to and uses the network of Services Australia to perform its functions and store information about participants (who may interchangeably be referred to as clients or customers);
· Services Australia is responsible for assessing the eligibility and suitability of persons who need access to information and data held by the respondent about participants;
· Services Australia’s role in undertaking this assessment on behalf of the respondent is explained in the pre-engagement pack;
· Any entity or person contracted to provide services for and on behalf of the respondent goes through an eligibility and suitability assessment because to provide services to the respondent’s participants, access to its resources is necessary. Those resources include the personal and sensitive information held about participants, including information which is stored on the network owned by Services Australia;
· In addition to the information already held about participants, a person performing a role for the respondent or for a third party provider to the respondent may receive new personal and/or sensitive information directly from a participant in a variety of ways. The way this may occur includes through direct interactions with participants (such as in the participant’s place of residence) or otherwise while performing a role;
· Therefore, that employees of the respondent and employees of third party providers of services to the respondent, are required to complete a pre-engagement pack and have their eligibility and suitability assessed by Services Australia;
· The Health Service is a third party provider of services to participants of the respondent pursuant to an agreement. In the provision of those services, the Health Service’s employees require access to the respondent’s resources;
· The applicant sought employment with the Health Service as a Local Area Coordinator. The role related to services that the Health Service provides to participants of the respondent;
· In the role of Local Area Coordinator, the applicant would have had access to systems of the respondent and Services Australia where the personal and financial information of the respondent’s participants are stored;
· It is for this reason that the applicant was required to and did complete a pre-engagement pack to inform an assessment of his eligibility and suitability to access the respondent’s resources and the range of participant information;
· The applicant’s pre-engagement pack was provided to the respondent and was then given to Services Australia to assess his eligibility and suitability;
· On or about 28 March 2022, Services Australia informed Mr Giddings of its recommendation that the applicant had not met the eligibility and suitability requirements of the respondent and he accepted the recommendation on 30 March 2022;
· On 14 April 2022, the Health Service was notified of the outcome of the assessment.
The applicant has not contended that he commenced employment with the Health Service nor has he asserted that he was given, much less produced, the “final copy of the contract” or any details about any commencement date as foreshadowed in the conditional letter of offer. The applicant does not allege that he was employed by the respondent nor does he contend that the respondent dismissed him from its employment. The applicant’s real grievance against the respondent is that it has refused to engage with him in his attempts to have it reassess its decision that he did not meet the eligibility and suitability requirements of the respondent, which had the result that a necessary pre-condition to employment by the Health Service was not met.
The essence of the applicant’s contention as to the respondent’s jurisdictional objection is set out below:
· The applicant was employed by Services Australia in late 2018 at which time he was the subject of an investigation about an allegation of an unauthorised access breach. On 11 February 2019 Services Australia determined to revoke his security clearance and proposed to terminate his employment.
· The applicant was given notice of the proposal to terminate his employment and advised that he had 14 days within which to appeal the proposed sanction.
· The applicant lodged an appeal. On 19 February 2019, the applicant was advised of a proposed amended sanction which he says included a reversal of the termination proposal and allowing him to retain his security clearance. He was also advised that his current employment would end in 4 months which coincided with the end of his contract. He was also advised that he would be able to apply for employment in the Australian public service in future. The applicant accepted the amended sanction.
· The applicant says any recommendation from Services Australia in relation to his suitability made in connection with his prospective employment with the Health Service the subject of the conditional offer could only have been based on the matters the subject of the investigation set out above and when he accepted the amended sanction, he was not told that he would not be entitled any security clearance.
· The applicant contends that Services Australia had a procedural and legal obligation to disclose this fact at the time it proposed the amended sanction and had it done so, he would have lodged an application either under s 365 or s 372 at the time.
· The applicant contends that as Services Australia did not comply with obligation, he was denied a right to seek external review in February 2019. He says therefore it is within the discretion of Commission under s 365 “to determine that jurisdiction still applies now as a continuation of jurisdiction that clearly applied at that time”.
· The applicant also contends that as Services Australia was the employer at the time s 365 would have applied (in 2019) and the Commission “therefore has discretion to apply jurisdiction under s 365 (even though it is longer than 21 days from the breach in 2019, because [he] lodged the current case within 21 days of when [he] was made aware of that breach and [he] can demonstrate that)”. He says that the respondent is “a co party to the alleged breach” because Services Australia is acting on the respondent’s behalf as the security assessor in this matter.
· Alternatively, the applicant says that under s 366(2) the Commission “has the jurisdiction to apply the extension of time” and presumably that I should do so.
· As to the respondent’s contention that it was not the applicant’s employer, the applicant contends that this is incorrect because the respondent had a role in the employment process and because:
“The intent [of s 326] of only allowing a person to lodge a general protections application against an employer is to prevent someone from lodging frivolous applications against third parties who are not involved in their employment or not otherwise responsible for employment decisions made against them. It is not to allow employers to subvert employee protections by using subcontracting arrangements to argue that they are not a party to the employment when they clearly are.”
The applicant’s submissions are misconceived and are rejected.
It is necessary to set out the relevant statutory provisions and consider them in the context. Part 3-1 of the Act is given the title “General Protections”. Section 340(1) relevantly provides that a person must not take “adverse action” against another person because the other person has exercised (or proposes to exercise) a “workplace right”.
As s 342(1), item 1 and s 342(3) of the Act make clear “adverse action” is taken by “an employer” against an employee if, relevantly, the employer dismisses the employee, and that action is not authorised by or under a specified law. Adverse action in the form of a dismissal cannot be taken a person against an employee other than by the employer of the employee. There are other species of adverse action that do not involve dismissal. Some may be taken by an employer against an employee, some by a prospective employer against a prospective employee, some by a principal against an independent contractor, some by an employee against his or her employer, some by an independent contractor against a principal and some by an industrial association or officers or members thereof against a person.
Section 12 of the Act defines “dismissed” by reference to s 386. That section relevantly provides:
386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
That which is readily apparent from the meaning ascribed to the word “dismissed” is that dismissal describes the ending of the employment of an employee at the initiative of the employee’s “employer” or by reason of the conduct or course of conduct in which the employer engaged. The expression “employment … has been terminated” in s.386(1)(a) of the Act means termination of the employment relationship and/or termination of the contract of employment.[3] For there to be a dismissal there must be in existence immediately before the dismissal takes effect, an employment relationship and/or contract of employment. Put another way, a relationship of employer and employee exists when, as between two persons, a contract of service – that is a contract of employment – has been entered into by each of them with the other. A contract of service may continue even though the relationship it governed has come to an end, for example because one party purported to terminate the contract but did so wrongfully (by terminating the employment contrary to the express terms of the contract), thus ending the relationship but not the contract. “Dismissed” connotes relevantly, the termination by the employer of the contract or the employment relationship it governed. Without first the existence of the employment relationship governed by the contract there cannot be a dismissal.
Division 8 of Part 3-1 of the Act establishes two mechanisms for dealing with disputes in which allegations of a contravention of the general protection provisions of the Act are made – dismissal disputes in Subdivision A and non-dismissal disputes in Subdivision B. Sections 365 and 366 are in Subdivision A and provide:
365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
Section 368 of the Act authorises the Commission to deal with a dismissal dispute if an application is made under s 365 and provides:
368 Dealing with a dismissal dispute (other than by arbitration)
(1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).
Note: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute.
(2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).
Note: For conferences, see section 592.
(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:
(a) the FWC must issue a certificate to that effect; and
(b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.
(4) A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.
If the Commission issues a certificate, the parties to the dispute may agree to the Commission determining the dispute by arbitration. Alternatively, if the person is entitled to apply to the Commission under s 365, that person may make a general protections court application provided this is done within 14 days after the day the certificate is issued or within such period as the court allows on application made during or after those 14 days.
Part 3-2 of the Act deals with unfair dismissal remedies and by s 394(1) provides that “a person who has been dismissed” may apply to the Commission for an order under Division 4 granting a remedy. Section 394(2) and (3) are in the substantially the same terms as s 366(2) providing for a 21 day time limit for the making of an application and conferring a discretion on the Commission to allow a further period within which an application may be made. Division 4 of Part 3-2 empowers the Commission to grant remedies to a person unfairly dismissed and who is protected from unfair dismissal at the time of dismissal. By s 390(2) the Commission may grant a remedy for unfair dismissal only if an application has been made under s 394. Substantially the same gateway exists to the making of a s 365 and a s 394 application under the Act – the person making the application must be “a person who has been dismissed” – noting that under s 365, an industrial association may also make application but only if, relevantly, it is entitled to represent the “person [who] has been dismissed”.
It should be readily apparent that ss 365 and 366 of the Act are concerned with different subject matters. Section 365 describes the persons who are entitled to make a general protections dismissal application. Section 366 conditions the way such an application must be made – the application be made within 21 days or within such further period that the Commission may allow.
For an application to be “made under” s 365 Act, it must be made by a person (or if made by an industrial association, in connection with a person) described in that section and it must be made within the time prescribed or allowed under s 366(1). The opening phrase in s 368, “if an application has been made under s 365”, incorporates both concepts. The words erect an essential precondition to the Commission’s authority to perform both its conciliation function and its associated power to issue a certificate under s 368(3).[4]
Moreover s 365 contains two criteria which condition a person’s entitlement to make an application. The first – that the “person has been dismissed” – is to be ascertained objectively. The second is that there is an allegation that the person was dismissed in contravention of a provision of Part 3-1. As the Full Court of the Federal Court of Australia observed in Coles Supply Chain Pty Ltd v Milford[5] “[i]n its ordinary meaning, the criterion in s 365(1)(a) will be fulfilled if there has been a dismissal in fact. It will not be fulfilled merely because an applicant asserts that he or she has been dismissed. The words “the dismissal” to which subs (b) refers is clearly a reference back to subs (a) and so refers to “the dismissal” that has occurred in fact.”[6]
There is no evidence of any employment relationship or contract of employment between the applicant and the Health Service or between the applicant and the respondent. That is simply because there was no such relationship and no such contract. The applicant was, as the conditional letter of offer from the Health Service makes clear, a prospective employee of the Health Service who would have become an employee of the Health Service had the conditions of the conditional offer been met. The conditions were not met, and no contract of employment was provided, and no employment relationship was created. A prospective employee who is not subsequently employed by a prospective employer is not a person who has been dismissed.
The respondent’s only role in the process was to facilitate the NDIS Worker Screening Clearance for the Health Service which was one of the conditions that needed to be fulfilled before employment in the position for which the applicant applied could begin. It was not fulfilled, and employment did not begin. That the respondent’s assessment had the result that employment with the Health Service could not begin does not mean that the respondent dismissed the applicant. It was incapable of doing so because it was not the applicant’s employer. However much the applicant feels aggrieved by the assessment undertaken, simply wishing to hold the respondent to account for its assessment and the assessment’s role in the employment the subject of the conditional offer not proceeding, does not result in the respondent becoming the employer and dismissing the applicant. In truth there was never any employment of the applicant in the position of Local Area Coordinator from which he could be dismissed.
It follows that the applicant is not a person who has been dismissed and so he is not a person who is entitled to apply to the Commission for the Commission to deal with a general protections dismissal dispute.
Two further matters warrant mentioning. The first is that at a case management conference held on 28 June 2022 I asked the applicant to consider whether to make an application to vary the existing application so that it might be dealt with in accordance with s 372 of the Act but the applicant has made no such application and has instead continued to insist that he is entitled to make an application under s 365.
The second concerns the applicant’s allegation that a third body – Services Australia – is or was the relevant employer which dismissed him in 2019. As should be clear from the summary of his submissions set out earlier, he contends that there is thus jurisdiction or alternatively that I should exercise my discretion to allow a further time period within which he should be allowed to make an application alleging that he was dismissed by Services Australia in contravention of a provision of Part 3-1. There are two obvious difficulties with these contentions. The first is that he did not identify in his application filed Services Australia as a respondent. The second is that the applicant has made no application to amend his application to substitute the respondent for Services Australia as the respondent which dismissed him.
As to any extension of time, there has been no application made by the applicant in which Services Australia is a respondent, there is no application to substitute or add Services Australia as a respondent and in any event self-evidently Services Australia is not on notice of any such application. There is thus no application in relation to which further time to lodge might be allowed under s 366(1)(b)
For these reasons the applicant’s contention that the Commission somehow has jurisdiction to continue to deal with this application because in 2019 he was employed and then dismissed by Services Australia is untenable. Self-evidently though there likely was a dismissal in 2019, the respondent neither employed him at the time nor did it dismiss the applicant.
If the applicant wants to commence a proceeding under s 365 of the Act against Services Australia, he should do so and apply for an extension of time. But he should not take this as a suggestion that such an application would have any merit or that an extension of time would be granted.
For the reasons set out the applicant was not dismissed by the respondent nor by the Health Service. He was at all relevant times a prospective employee of the Health Service.
As the applicant is not a person who has been dismissed, he is not entitled to apply under s 365 for the Commission to deal with a dismissal dispute. The application is therefore not made in accordance with this Act. And as there are no compelling reasons why I should not exercise my discretion to dismiss the application I propose to do so.
Order
The application made by Paul Anthony Pagliarella under s 365 of the Act (C2022/2630) is dismissed.
DEPUTY PRESIDENT
Written submissions:
Applicant, 19 July and 8 August 2022
Respondent, 2 August 2022
[1] Correspondence dated 10 March 2022 to the applicant from Ms Anne Coxall, Senior Manager People, Learning and Culture, Latrobe Community Health Service Ltd - subject line: “LETTER OF OFFER – LOCAL AREA COORDINATOR”
[2] Witness Statement of Sean Robert Giddings dated 29 July 2022
[3] NSW Trains v James[2022] FWCFB 55 at [45]
[4] Coles Supply Chain Pty Ltd v Milford[2020] FCAFC 152 at [51]
[5] [2020] FCAFC 152
[6] Ibid at [54]
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