Piefke v Workpac Pty Ltd

Case [2021] FCCA 1166

FEDERAL CIRCUIT COURT OF AUSTRALIA

Piefke v Workpac Pty Ltd [2021] FCCA 1166

File number(s): PEG 337 of 2020
Judgment of: JUDGE LUCEV
Date of judgment: 31 May 2021
Catchwords:

INDUSTRIAL LAW – application for summary dismissal – alleged unlawful termination of employment – prior unfair dismissal application before Fair Work Commission – where no certificate issued by Fair Work Commission – whether Court has jurisdiction

WORDS AND PHRASES –“must not make” – “in relation to”  
Legislation:

Australian Maritime Safety Authority Act 1990 (Cth) s 12

Fair Work Act 2009 (Cth) ss 369, 394, 399A, 570, 587, 604, 725, 729, 731, 773, 774, 776, 778

Federal Circuit Court Rules 2001 (Cth) r 13.10(a), r 45.07

Cases cited:

Birch v Wesco Electrics (1966) Pty Ltd [2012] FMCA 5; (2012) 218 IR 67; (2012) 257 FLR 237

C v Commonwealth of Australia [2015] FCAFC 113; (2015) 234 FCR 81; (2015) 327 ALR 195; (2015) 252 IR 471; (2015) 149 ALD 57

Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd (No 2) [2019] FCA 2146; (2019) 292 IR 183

Dias v Commonwealth Bank Group [2021] FCCA 601

Federated Engine-Drivers & Firemen’s Association v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398

Myers v Myers [1969] WAR 19

MZZZL v Minister for Immigration & Anor [2014] FCCA 1309

Pitrau v Barrick Mining Services Pty Ltd [2012] FMCA 186; (2012) 219 IR 208; (2012) 259 FLR 447; (2012) 64 AILR 101-563

Re Boulton; Ex parte Construction, Forestry, Mining and Engineering Union (1998) 73 ALJR 129

Rentuza v Westside Auto Wholesale [2009] FMCA 1022; (2009) 236 FLR 231; (2009) 190 IR 207

Woodside Energy Ltd v Commissioner of Taxation [2006] FCA 1303; (2006) 155 FCR 357; (2006) 64 ATR 379; (2006) 233 ALR 710
Number of paragraphs: 36
Date of last submission: 14 May 2021
Date of hearing: 14 May 2021
Place: Perth (by telephone)
Applicant: The Applicant appeared in person
Representative for the Respondent: K Bennett (with leave)

ORDERS

PEG 337 of 2020
BETWEEN:

JEFFREY PIEFKE

Applicant
AND:

WORKPAC PTY LTD

Respondent

ORDER MADE BY:

JUDGE LUCEV

DATE OF ORDER:

31 MAY 2021

THE COURT ORDERS THAT:

1.The Respondent’s Application in a Case for orders for summary dismissal filed 14 May 2021 be upheld.

2.The Originating Application filed 4 November 2020 be dismissed pursuant to r 13.10(a) of the Federal Circuit Court Rules 2001 (Cth).

3.The Applicant’s Application in a Case filed 1 April 2021 be dismissed pursuant to r 13.10(a) of the Federal Circuit Court Rules 2001 (Cth).

4.There be no order as to costs.

REASONS FOR JUDGMENT

JUDGE LUCEV

INTRODUCTION

  1. Invoking the law sometimes involves choices. Those choices sometimes have consequences. The consequence of one choice may mean that another path is blocked. This is such a case.

  2. In the Originating Application (“Unlawful Termination Application”) filed 4 November 2020, the applicant, Mr Piefke, alleges that his employment was unlawfully terminated by the respondent, Workpac Pty…

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Piefke v Workpac Pty Ltd [2021] FCCA 1166
Case
[2021] FCCA 1166
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr Piefke against Workpac Pty Ltd. Mr Piefke alleged he was unfairly dismissed from his employment, citing systemic bullying and attempts to uphold safety practices as the reasons for his dismissal. The court, presided over by Lucev J, was required to determine whether it had jurisdiction to hear Mr Piefke's unlawful termination application.

The central legal issue before the court was whether it possessed jurisdiction to hear Mr Piefke's unlawful termination application, given that he had previously made an unfair dismissal application concerning the same dismissal. Workpac argued that section 725 of the Fair Work Act 2009 (Cth) prohibited Mr Piefke from making a further application of this nature, as an unfair dismissal application had already been made and had not been withdrawn, failed for want of jurisdiction, or failed due to a genuine redundancy.

Lucev J applied the principles established in previous cases regarding the interpretation of "must not make" and "in relation to" within the Fair Work Act. The court adopted its prior analysis that "must not make" imposes a personal prohibition on a party making a subsequent application of a specified kind if they have already made one of the listed applications in relation to the same dismissal. Furthermore, the court interpreted "in relation to" by considering the context and purpose of the provision, requiring a relevant connection to the statutory purpose. Applying these principles, the court found that Mr Piefke's unlawful termination application was prohibited by section 725 of the Fair Work Act because he had already made an unfair dismissal application in relation to the same dismissal.

Consequently, the court upheld Workpac's objection to its jurisdiction. Both Mr Piefke's unlawful termination application and his application in a case were dismissed pursuant to rule 13.10(a) of the Federal Circuit Court Rules 2001, as they had no reasonable prospect of success due to the lack of jurisdiction. In relation to costs, the court made an order that there be no order as to costs, consistent with section 570 of the Fair Work Act, as neither party was legally represented.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Court has a broad discretion with respect to requests for adjournment: Myers v Myers [1969] WAR 19 (“Myers”) at 21 per Jackson J; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 (“MZZZL”) at [9]-[10] per Judge Lucev, and in this instance the Court has refused the request for an adjournment of the delivery of judgment as it would serve no purpose in circumstances where the Court has determined it has no jurisdiction to hear the Unlawful Termination Application.CONCLUSION The Court has concluded that Workpac’s objections to the Court’s jurisdiction in its Application in a Case filed 14 May 2021 must be upheld, and it follows that:(a)the Unlawful Termination Application; and(b)Mr Piefke’s Application in a Case,must be dismissed pursuant to r 13.10(a) of the FCC Rules as having no reasonable prospect of success, there being no jurisdiction to hear either of them, and there will be orders accordingly. In relation to costs, as this is an FW Act matter: FW Act, s 570, and as neither party was legally represented, there will be an order that there be no order as to costs.

Ratio Decidendi

Legal Principle Established

The Court understands Mr Piefke’s principal complaint against Workpac is that he was unfairly dismissed in the course of trying to uphold safety practices and implement systems that would ensure the safety of himself and others in his work environment. Mr Piefke made submissions that in the course of his employment he experienced severe and systemic bullying: Transcript at 7. The Court is sympathetic to Mr Piefke’s position and recognises the challenge of navigating the prescribed processes under the FW Act as a self-represented litigant. It is, however, the first duty of every court to ensure that it has jurisdiction to hear the matter before it: Federated Engine-Drivers & Firemen’s Association v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398 at 415 per Griffiths CJ, 428 per Barton J and 454 per Isaacs J; Re Boulton; Ex parte Construction, Forestry, Mining and Engineering Union (1998) 73 ALJR 129 at 133 per Kirby J; Rentuza v Westside Auto Wholesale [2009] FMCA 1022; (2009) 236 FLR 231; (2009) 190 IR 207 at [23] per Lucev FM. The Court is therefore not in a position to consider the merits of the Unlawful Termination Application until it is satisfied it has the jurisdiction to do so. Consideration Multiplicity of Proceedings Workpac submits that the Unlawful Termination Application concerns the same dismissal previously the subject of the Unfair Dismissal Application and that by reason of s 725 of the FW Act, this Court lacks jurisdiction to hear the Unlawful Termination Application. Section 725 of the FW Act provides that: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. Section 729 of the FW Act provides that :(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. Regarding the proper meaning under s 725 of the FW Act of the expressions:(a)“must not make”, the Court adopts its analysis in Pitrau v Barrick Mining Services Pty Ltd [2012] FMCA 186; (2012) 219 IR 208; (2012) 259 FLR 447; (2012) 64 AILR 101-563 at [22]-[43] per Lucev FM (and the cases there cited) as imposing a personal prohibition on a person making an application to this Court of any kind in relation to a dismissal if the person has previously made an unfair dismissal application (or any other application of the kind indicated by ss 726-732 of the FW Act) in relation to the dismissal; and (b)“in relation to” the Court adopts its analysis in Birch v Wesco Electrics (1966) Pty Ltd [2012] FMCA 5; (2012) 218 IR 67; (2012) 257 FLR 237 at [39] per Lucev FM (“Birch”) at [64]-[75] per Lucev FM (and the cases there cited, including Woodside Energy Ltd v Commissioner of Taxation [2006] FCA 1303; (2006) 155 FCR 357; (2006) 64 ATR 379; (2006) 233 ALR 710 (“Woodside Energy”), as one gathering meaning from both the context in, and purpose for, which it appears: Birch at [72] per Lucev FM, and one where the statutory test of relationship requires that the relationship “must lie within the bounds of relevance to the statutory purpose”: Woodside Energy at [58] per French J.