Piefke v Workpac Pty Ltd
[2021] FCCA 1166
•31 May 2021
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
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.
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 Ltd (“Workpac”).
The relevant background to the Unlawful Termination Application is as follows:
(a)on 24 June 2020 Mr Piefke was notified that his employment with Workpac had been terminated (“Dismissal”);
(b)on 29 June 2020 Mr Piefke filed a “Form F2 – Unfair Dismissal Application” (“Unfair Dismissal Application”) with the Fair Work Commission (“FWC”), alleging that the Dismissal was unfair ;
(c)on 31 August 2020 Workpac filed an “Application for Dismissal” with the FWC (“FWC Dismissal Application”) seeking that the Unfair Dismissal Application be dismissed, pursuant to ss 399A or 587 of the Fair Work Act 2009 (Cth) (“FW Act”);
(d)on 5 October 2020, the parties attended a hearing before the FWC in respect of the FWC Dismissal Application;
(e)on 26 October 2020 the FWC issued a decision dismissing the Unfair Dismissal Application (an application made under s 394(1) of the FW Act) pursuant to ss 399A(1)(b) and 587(1)(c) of the FW Act;
(f)on 6 November 2020 Mr Piefke filed the Unlawful Termination Application on a “Form 3 – Claim under the Fair Work Act 2009 alleging unlawful termination of employment” in this Court;
(g)on 8 December 2020 Workpac filed a Response to the Unlawful Termination Application asserting that the Unlawful Termination Application:
(i)was jurisdictionally barred, having regard to the time limits for application and Mr Piefke’s failure to provide a certificate issued by the FWC under s 776 of the FW Act (“Section 776 Certificate”); or
(ii)had no reasonable prospects of success or, alternatively, was an abuse of the process of the Court,
and should therefore be dismissed.
THE CURRENT PROCEEDINGS
On 28 January 2021 this Court made orders that the parties file and serve any affidavit evidence and an outline of submissions as to whether this Court has jurisdiction to consider the Unlawful Termination Application and that the issue be listed for an interlocutory hearing.
On 1 April 2021 Mr Piefke filed an Application in a Case seeking to have two other corporations joined as respondents to the Unlawful Termination Application.
On the day of the interlocutory hearing the Court made orders that Workpac’s Application in a Case, provided to the Chambers of Judge Kendall on or about 27 January 2021, be treated as having been filed that day, that being 14 May 2021. The Application in a Case sought orders that the Unlawful Termination Application be summarily dismissed pursuant to ss 604, 774(1) or 778 of the FW Act, or, alternatively, on the basis that it had no reasonable prospect of success.
JURISDICTION
Mr Piefke’s Submissions
At the interlocutory hearing Mr Piefke made submissions that largely went to the merits of the Unlawful Termination Application. His submissions made reference to a duty of care said to be imposed by s 12 of “AMSA Law”: Transcript at 7, which the Court takes to mean the Australian Maritime Safety Authority Act 1990 (Cth) (“AMSA Act”). The Court notes that s 12 of the AMSA Act does not confer a duty of care on any person or body, instead imposing an obligation on the Australian Maritime Safety Authority to consult with government, commercial, industrial, consumer and other relevant bodies and organisations in the performance of its functions and the exercise of its powers.
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.
In Birch, the Court considered the meaning of “in relation to” in the context of s 725 of the FW Act and found that where the allegations made in relation to the dismissal were expressed in near-identical terms in both applications, the content of the applications made manifest the direct link between them: Birch at [81] per Lucev FM.
The requirements of s 725 of the FW Act can be summarised as follows:
(a)a former employee of an employer making an application or complaint must have been dismissed;
(b)that dismissed former employee must have made an application or complaint of a kind referred to in ss 726-732 of the FW Act that has not been withdrawn or failed for want of jurisdiction; and
(c)the dismissed person “must not make” another application or complaint of a kind referred to in ss 726-732 of the Fair Work Act “in relation to the dismissal” unless the initial application has been withdrawn or failed for want of jurisdiction.
See Dias v Commonwealth Bank Group [2021] FCCA 601 at [36] per Judge Driver; Birch at [39] per Lucev FM.
The summary at [14] above accords with:
(a)the findings of the Federal Court in Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd (No 2) [2019] FCA 2146; (2019) 292 IR 183 at [22] per Collier J, where it was held that s 725 of the FW Act “specifically prevents a person who has been dismissed from bringing a second application ‘in relation to’ their dismissal”; and
(b)the relevant statutory purpose prescribed by the Fair Work Bill 2008 (Cth) Explanatory Memorandum:
This Part deals with cases where there may be more than one remedy available for the same conduct or circumstances. It ensures that people have access to an appropriate remedy but also ensures that they are not entitled to more than one remedy in such cases: at [406].
…
This Subdivision is intended to prevent a person ‘double dipping’ when they have multiple potential remedies relating to a dismissal from employment by seeking to limit a person to a single remedy…: at [408].
On 29 June 2020 Mr Piefke made an application of the type referred to in s 729 of the FW Act, namely, the Unfair Dismissal Application in relation to the Dismissal. The Unfair Dismissal Application was dismissed by the FWC under ss 399A and 587(1)(c) of the FW Act, and therefore does not fall under any of the exemptions in s 729 (1)(b) of the FW Act.
On 6 November 2020 Mr Piefke made and filed in this Court an application of the type referred to in s 731 of the FW Act, namely, the Unlawful Termination Application, in relation to the Dismissal.
It is clear that the Unfair Dismissal Application and the Unlawful Termination Application both concern the same circumstances in relation to the Dismissal. It therefore follows that the Unfair Dismissal Application and the Unlawful Termination Application have been made “in relation to” the same dismissal, invoking s 725 of the FW Act and prohibiting Mr Piefke from making the Unlawful Termination Application.
The Court concludes that Mr Piefke is prohibited from making the Unlawful Termination Application, and therefore this Court lacks jurisdiction to hear the Unlawful Termination Application.
Application requiring a certificate issued by the FWC
Workpac also submitted that the Court lacks jurisdiction to hear the Unlawful Termination Application because Mr Piefke has not satisfied the jurisdictional prerequisites for bringing an action in this Court, namely that the FWC have issued a Section 776 Certificate in relation to the Dismissal.
Section 778 of the FW Act provides that:
(1) A person who is entitled to apply under section 773 for the FWC to deal with a dispute must not make an unlawful termination court application in relation to the dispute unless:
(a) both of the following apply:
(i) the FWC has issued a certificate under paragraph 776(3)(a) in relation to the dispute;
(ii) the unlawful termination court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or
(b) the unlawful termination court application includes an application for an interim injunction.
Once again, the use of the phrase “must not make” in s 778 of the FW Act, as in s 725 of the FW Act, imposes a personal prohibition on a person making an unlawful termination application to this Court: see [12(b)] above, where the person does not have a Section 776 Certificate.
The Court also notes that r 45.07 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) provides that:
An application for an order in relation to an alleged unlawful termination of an employee's employment that occurred on or after 1 July 2009 must:
(a) be in accordance with the approved form; and
(b) be accompanied by:
(i) a claim in accordance with the approved form; and
(ii) unless the application includes an application for an interim injunction, a certificate issued by the Fair Work Commission under the Fair Work Act that provides that the Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.
Rule 45.07 of the FCC Rules imposes a mandatory obligation upon an applicant in alleged unlawful termination proceedings to include the relevant FWC certificate. In this case, that obligation requires Mr Piefke to attach a Section 776 Certificate to the Unlawful Termination Application. It is not in dispute that:
(a)Mr Piefke does not have a Section 776 Certificate, and that no Section 776 Certificate accompanied the Unlawful Termination Application; and
(b)the Unlawful Termination Application was not accompanied by an application for an interim injunction.
Although Pitrau concerned a case in which the applicant did not have the required certificate under s 369 of the FW Act when bringing a general protections court application, s 369 of the FW Act is drafted in near-identical terms to s 776 of the FW Act and on a plain reading of s 776 of the FW Act shares the same intended meaning as s 369 of the FW Act. In relation to the Section 776 Certificate:
(a)the issuance of a Section 776 Certificate is mandatory under s 776 of the FW Act if the FWC is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful;
(b)only the FWC has the power to issue a Section 776 Certificate;
(c)the issuance of a Section 776 Certificate marks the end of the conciliation or mediation functions of the FWC; and
(d)is the prerequisite for the exercise of judicial power by this Court: Pitrau at [52] per Lucev FM; C v Commonwealth of Australia [2015] FCAFC 113; (2015) 234 FCR 81; (2015) 327 ALR 195; (2015) 252 IR 471; (2015) 149 ALD 57 at [66] per Tracey, Buchanan and Katzmann JJ.
The Court therefore concludes that:
(a)the Unlawful Termination Application:
(i)does not fulfil the requirements of s 778 of the FW Act; and
(ii)fails to satisfy the requirements of r 45.07 of the FCC Rules; and
(b)the Court consequently does not have jurisdiction to hear the Unlawful Termination Application.
Standing to bring an unlawful termination claim
Workpac submits that Mr Piefke is also barred from making the Unlawful Termination Application by virtue of s 723 of the FW Act. Section 723 of the FW Act provides that “a person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.”
This argument is misconceived. The effect of s 725 of the FW Act preventing Mr Piefke from bringing multiple actions concerning the Dismissal is that he is not entitled to make a general protections court application in relation to the Dismissal. Section 723 of the FW Act does not apply because Mr Piefke has no entitlement to make a general protections application.
Time limit
Workpac submitted that the Unlawful Termination Application was filed out of time. This submission is misconceived. The section relied upon by Workpac, s 774 of the FW Act, is concerned with applications made under s 773 of the FW Act, which relates to applications for the FWC to deal with a dispute concerning termination of employment.
Other matters
The Court having found that it lacks jurisdiction to hear the Unlawful Termination Application renders it unnecessary for the Court to deal with Workpac’s other submissions as to whether the Unlawful Termination Application otherwise has reasonable prospects of success or is an abuse of process.
APPLICATION IN A CASE TO JOIN SECOND AND THIRD RESPONDENTS
For the reasons set out at [9]-[26] above, the Court has no jurisdiction to hear the Unlawful Termination Application, and as such, Mr Piefke’s Application in a Case to join additional respondents falls away and must be dismissed.
REQUEST TO ADJOURN JUDGMENT
On 26 May 2021 Chambers informed the parties that the matter had been listed for judgment on 31 May 2021.
On 27 May 2021 Chambers:
(a)received correspondence from Mr Piefke requesting an adjournment, stating:
As the date and time due to distance and safety passage plan circumstances at play
My family are requesting more time to appear if possible.
(b)received a subsequent email concerning Mr Piefke’s mental health, but no medical certificate or other evidence was attached to this email; and
(c)advised the parties that the Court had refused the request to adjourn the delivery of judgment, but that the judgment would be delivered by telephone (thereby precluding the need to attend in person).
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.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 31 May 2021
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