Raymond Hill v Earthpro Pty Ltd

[2011] FWA 9108

[2011] FWA 9108

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—General protections

Raymond Hill
v
Earthpro Pty Ltd
(C2011/6652)

VICE PRESIDENT LAWLER MELBOURNE, 20 DECEMBER 2011

General protections dispute involving dismissal - failure to identify alleged contravention - application dismissed.

[1] On 22 November 2011, the applicant filed an application for Fair Work Australia to deal with a general protections dispute using the prescribed form, Form F8. Such a dispute can only arise in respect of an alleged contravention of one or more of the general protections provided in Part 3-1 of the Fair Work Act.

[2] Sections 369 and 370 provide:

“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.

370 Advice on general protections court application

(1) If FWA considers, taking into account all the materials before it, that a general protections court application in relation to the dispute would not have a reasonable prospect of success, it must advise the parties accordingly.

(2) 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.”

[3] Only the Federal Court or the Federal Magistrates’ Court has the power to provide a remedy for a general protections contravention. A certificate under s.369 is a jurisdictional prerequisite to a general protections court application. A general protections application is lodged in Fair Work Australia only to provide an opportunity for a settlement before a general protections court application is made. Fair Work Australia’s only role is conduct a settlement conference and, if the matter does not settle, issue a certificate under s.369 and, if appropriate, give the advice referred to in s.370.

[4] This matter has been listed on three occasions: 12 December 2011, 15 December 2011 and 19 December 2011.

[5] The initiating application asserts that the applicant commenced employment with the respondent on 28 March 2011 and was dismissed on 4 November 2011. The application records the reason for dismissal as “shortage of work”. However, questions 2.1 and 2.1 in the form have not been completed. The relevant part of Form F8 is as follows:

“2. Alleged contravention(s) of Part 3-1:

2.1 Section(s) allegedly contravened:

[List the section(s) of Part 3-1 that the Respondent is alleged to have contravened. See for assistance in identifying the correct section(s).]

2.2 Description of alleged contravention(s):

[Using numbered paragraphs, give a description of the relevant facts and circumstances and specify how you say the section(s) specified in 2.1 have been contravened by the actions or conduct of the Respondent. This should include your response to any reasons for dismissal given by the employer. Attach additional pages if necessary.]”

[6] In other words, the applicant made no attempt to specify the sections of Part 3-1 of the Fair Work Act alleged to have been contravened by the respondent and made no attempt to identify the facts or circumstances that would establish such a contravention.

[7] On 12 December 2011 I explained to the applicant that it was necessary for him to identify the general protection(s) alleged to have been contravened by the respondent together with a description of the alleged contravention and that the respondent could not be expected to participate properly in settlement discussions until it had some idea of the case against it. The applicant was unable to do so, even in the most general way. There is nothing in the reason for dismissal given by the respondent, “shortage of work”, that in any way suggests a breach of a general protection. The employer contends that the dismissal was a case of genuine redundancy due to shortage or work and that there is no question of any contravention of the general protections.

[8] I adjourned the conference to 15 December 2011 to give the applicant an opportunity to identify the general protection(s) that he contends have been contravened by the respondent and a brief description of the facts giving rise to such contravention(s). On 15 December 2011 the Applicant was not available when an attempt was made to call him on the contact number he had provided and join him to the listed conference. An unidentified person answered the phone and indicated that the applicant was out and would not be back until the following day. I again adjourned the matter to 19 December 2011 to give the applicant a further opportunity to identify the general protections breach that he alleges and the general basis for that contention. A notice of listing was issued for that further telephone conference. On 19 December 2011 again the applicant did not answer the phone number he had provided as his contact number. The respondent participated in all three listings.

[9] I take the view that in these circumstances the respondent should not be further vexed with this application before Fair Work Australia and it is open to me to conclude that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.

[10] I have issued a certificate under s.369.

[11] I also take the view that where, after a reasonable opportunity to do so, an applicant under s.369 is unable to identify the general protection(s) allegedly contravened by the respondent or the facts that are said to give rise to such a contravention (even in the most general way), it is open to the tribunal to reach the conclusion breach that the application does not have reasonable prospects of success. I have reached that conclusion on the material before me and, accordingly, have issued an advice to the parties pursuant to s.370.

VICE PRESIDENT

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